Fresno City Council
December 5, 2024

Standard Form of
General Conditions of
Contract Between Owner
and Design-Builder
Document No. 535
Third Edition, 2022

© Design-Build Institute of America
Washington, D.C.

DBIA Contract Document #535

Design-Build Institute of America - Contract Documents

LICENSE AGREEMENT

By using the DBIA Contract Documents, you agree to and are bound by the terms of this License Agreement.

1. License. The Design-Build Institute of America (“DBIA”) provides DBIA Contract Documents and licenses their use worldwide. You acknowledge that DBIA Contract Documents are protected by the copyright laws of the United States. You have a limited nonexclusive license to: (a) Use DBIA Contract Documents on any number of machines owned, leased or rented by your company or organization; (b) Use DBIA Contract Documents in printed form for bona fide contract purposes; and (c) Copy DBIA Contract Documents into any machine-readable or printed form for backup or modification purposes in support of your permitted use.

2. User Responsibility. You assume sole responsibility for the selection of specific documents or portions thereof to achieve your intended results, and for the installation, use, and results obtained from the DBIA Contract Documents.

You acknowledge that you understand that the text of the DBIA Contract Documents has important legal consequences and that consultation with an attorney is recommended with respect to use or modification of the text. You will not represent that a ny of the contract documents you generate from DBIA Contract Documents are DBIA documents unless (a) the document text is used without alteration or (b) all additions and changes to, and deletions from, the text are clearly shown.

3. Copies. You may not use, copy, modify, or transfer DBIA Contract Documents, or any copy, modification or merged portion, in whole or in part, except as expressly provided for in this license. Reproduction of DBIA Contract Documents in printed or machine -readable format for resale or educational purposes is expressly prohibited. You will reproduce and include DBIA’s copyright notice on any printed or machine-readable copy, modification, or portion merged into another document or program.

4. Transfers. You may not transfer possession of any copy, modification or merged portion of DBIA Contract Documents to another party, except that a party with whom you are contracting may receive and use such transferred material solely for purposes of its contract with you. You may not sublicense, assign, or transfer this license except as expressly provided in this Agreement, and any attempt to do so is void.

5. Term. The license is effective for one year from the date of purchase. DBIA may elect to terminate it earlier, by written notice to you, if you fail to comply with any term or condition of this Agreement.

6. Limited Warranty. DBIA w arrants the electronic files or other media by which DBIA Contract Documents are furnished to be free from defects in materials and workmanship under normal use during the Term. There is no other warranty of any kind, expressed or implied, including, but n ot limited to the implied warranties of merchantability and fitness for a particular purpose. Some states do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. This warranty gives you specific legal rights and you m ay also have other rights which vary from state to state. DBIA does not warrant that the DBIA Contract Documents will meet your requirements or that the operation of DBIA Contract Documents will be uninterrupted or error free.

7. Limitations of Remedies. DBIA’s entire liability and your exclusive remedy shall be: the replacement of any document not meeting DBIA’s "Limited Warranty" which is returned to DBIA with a copy of your receipt, or at DBIA’s election, your money will be refunded. In no event will DBIA b e liable to you for any damages, including any lost profits, lost savings or other incidental or consequential damages arising out of the use or inability to use DBIA Contract Documents even if DBIA has been advised of the possibility of such damages, or f or any claim by any other party. Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.

8. Acknowledgment. You acknowledge that you have read this a greement, understand it and agree to be bound by its terms and conditions and that it will be governed by the laws of the District of Columbia. You further agree that it is the complete and exclusive statement of your agreement with DBIA which supersedes a ny proposal or prior agreement, oral or written, and any other communications between the parties relating to the subject matter of this agreement.

Instruction Sheet for DBIA Document No. 535 Page 1
© 2022 Design-Build Institute of America

INSTRUCTIONS
For DBIA Document No. 535 Standard Form of General Conditions of Contract Between Owner and Design-Builder (2022 Edition)

General Instructions

No.

Subject

Instruction

1. Standard
Forms
Standard form contracts have long served an important function in the United States and international construction markets. The common purpose of these forms is to provide an economical and convenient way for parties to contract for design and construction services.

As standard forms gain acceptance and are used with increased frequency, parties are able to enter into contracts with greater certainty as to their rights and responsibilities.

2. DBIA Standard
Form Contract
Documents
Since its formation in 1993, the Design -Build Institute of America (DBIA) has regularly evaluated the needs of Owners, Design-Builders, and other parties to the design -build process in preparation for developing its own contract forms. Consistent with DBIA’s mission of promulgating best design -build practices, DBIA believes that the design -build contract should reflect a balanced approach to risk that considers the legitimate interests of all parties to the design-build process. DBIA’s Standard Form Contract Documents reflect a modern risk allocation approach, allocating each risk to the party best equipped to manage and minimize that risk, with the goal of promoting best design-build practices.

3. Use of Non-
DBIA
Documents
To avoid inconsistencies among documents used for the same project, DBIA’s Standard Form Contract Documents should not be used in conjunction with non-DBIA documents unless the non-DBIA documents are appropriately modified on the advice of legal counse l. Moreover, care should also be taken when using different editions of the DBIA Standard Form Document on the same project to ensure consistency.

4. Legal
Consequences
DBIA Standard Form Contract Documents are legally binding contracts with important legal consequences. Contracting parties are advised and encouraged to seek legal counsel in completing or modifying these Documents.

5. Reproduction
DBIA hereby grants to purchasers a limited license to reproduce its Documents consistent with the License Agreement accompanying these Documents. At least two original versions of the Agreement should be signed by the parties. Any other reproduction of DBIA Documents is strictly prohibited.

6. Modifications
Effective contracting is accomplished when the parties give specific thought to their contracting goals and then tailor the contract to meet the unique needs of the project and the design-build team. For that reason, these Documents may require modification for various purposes including, for example, to comply with local codes and laws, or to add special terms.

DBIA’s latest revisions to its Documents provide the parties an opportunity to customize their contractual relationship by selecting various optional contract clauses that may better reflect the unique needs and risks associated with the project.

Any modifications to these Documents should be initialed by the parties. At no time should a document be re -typed in its entirety. Re-creating the document violates copyright laws and destroys one of the advantages of standard forms – familiarity with the terms.

7. Execution It is good practice to execute two original copies of the Agreement. Only persons authorized to sign for the contracting parties may execute the Agreement.

Instruction Sheet for DBIA Document No. 535 Page 2
© 2022 Design-Build Institute of America
Specific Instructions

Section

Title

Instruction
General Purpose of This
Document
The General Conditions of Contract provide the terms and conditions under which the Work of the Project will be performed.

This document accompanies DBIA Document No. 525 and DBIA Document No. 530 (each referred to herein generally as “Agreement”). It may also be incorporated by reference into other related agreements, as between Design-Builder and Design Consultant, and Design- Builder and Subcontractor.

General Checklist
The following Sections reference documents that are to be attached to the Agreement:

Section 3.5.1 Owner’s Permit List
Article 5 Insurance and Bonds
Section 9.4.2 Unit Prices

2.1.3 Schedule The parties are encouraged, if possible, to agree to a schedule for the execution of the Work upon execution of the Agreement or upon establishing the GMP.

2.2.1 Design
Professional
Services
The parties should be aware that in addition to requiring compliance with state licensing laws for design professionals, some states also require that the design professional have a corporate professional license.

2.3.1 Standard of Care
for Design
Professional’s
Services
Design-Builder’s obligation is to deliver a design that meets prevailing industry standards.

However, DBIA has provided the parties at Article 11 of the Agreement an optional provision whereby if Owner can identify specific performance standards that can be objectively measured, Design -Builder is obligated to design the Project to satisfy these standards if this optional provision is selected . To avoid any confusion and to ensure that the parties fully understand what their obligations are, the specific performance standards should be clearly identified and should be able to be objectively measured. Design-Builder should recognize that this is a heightened standard of care that has insurance ramifications that should be discussed with Design-Builder’s insurance advisor.

3.5.1 Government
Approvals and
Permits
Design-Builder is responsible for obtaining all necessary permits, approvals, and licenses, except to the extent specific permits, approvals, and licenses are set forth in an Owner’s Permit List, which must be attached as a n exhibit to the Agreement. The parties, prior to execution of the Agreement, should discuss which permits, approvals and licenses need to be obtained for the Project and which party is in the best position to do so.

5.1.1 Design-Builder’s
Insurance
Requirements
Design-Builder is obligated to provide insurance coverage from insurance carriers that meet the criteria set forth in the Insurance Exhibit attached to Section 10.1 of the Agreement.

5.1.2 Exclusions to
Design-Build
Parties are advised that their standard insurance policies may contain exclusions for the design-build deli very method. This Section 5.1.2 requires that any such exclusions be deleted from the policy.

5.2 Owner’s
Insurance
Requirements
Owner, in addition to providing the insurance set forth in this Section and Section 5.3 , is also obligated to procure the insurance coverages for the amounts and consistent with the terms set forth in the Insurance Exhibit made part of the Agreement.

5.4 Bonds and Other
Performance
Security
Design-Builder is only obligated to provide bonds or other forms of performance security to the extent called for in Section 10.2 of the Agreement.

Instruction Sheet for DBIA Document No. 535 Page 3
© 2022 Design-Build Institute of America

Section

Title

Instruction

8.2.2 Compensability
for Force Majeure
Events
The parties are provided the option in the Agreement of negotiating whether Design-Builder is entitled to compensation for Force Majeure Events.

9.4.1 Contract Price
Adjustments Unit prices, if established, shall be attached pursuant to Article 2 of the Agreement.

9.4.3 Payment/
Performance of
Disputed
Services
When Owner disputes Design -Builder’s entitlement to a change order or disagrees with Design-Builder regarding the scope of Work, and nevertheless expects Design -Builder to perform the services, Design-Builder’s cash flow and ability to complete the Work will be hampered if Owner fails to pay Design -Builder for the disputed services. This Section provides a balanced approach whereby Design-Builder is required to perform the services, but Owner is required to pay fifty percent (50%) of Design-Builder’s reasonable estimated direct costs of performing such services until the dispute is settled. By so doing, Owner does not forfeit its right to deny total responsibility for payment, and Design -Builder does not give up its right to demand full payment. The dispute shall be resolved according to Article 10.

Article
10 Contract
Adjustments and
Disputes
DBIA endorses the use of partnering, negotiation, mediation and arbitration for the prevention and resolution of disputes. The General Conditions of Contract provides for the parties’ Representatives and Senior Representatives to attempt to negotiate the dispute or disagreement. If this attempt fails, the dispute shall be submitted to mandatory, non-binding mediation. Any dispute that cannot be resolved by mediation shall then be submitted to binding arbitration, unless the parties elect in the Agreement to submit their dispute to a court of competent jurisdiction.

10.3.4 Arbitration
The prevailing party in any arbitration shall receive reasonable attorneys’ fees from the other party. DBIA supports this “loser pays” provision to encourage parties to negotiate or mediate their differences and to minimize the number of frivolous disputes.

10.4 Duty to Continue
Performance
Pending the resolution of any dispute or disagreement, both Owner and Design -Builder shall continue to perform their respective duties under the Contract Documents, unless the parties provide otherwise in the Contract Documents.

10.5 Consequential
Damages
DBIA believes that it is inappropriate for either Owner or Design -Builder to be responsible to the other for consequential damages arising from the Project. This limitation on consequential damages in no way restricts, however, the payment of liquidated damages, if any, under Article 5 of the Agreement.

11.4 Design-Builder’s
Right to
Terminate for
Cause
If Design-Builder properly terminates the Agreement for cause, it shall recover from Owner in the same way as if Owner had terminated the Agreement for convenience under Section

11.6 of the General Conditions. Owner shall pay to Design -Builder its costs, r easonable overhead and profit on the costs, and an additional payment based on a percentage of the remaining balance of the Contract Price, all as set forth in Article 8 of the Agreement.

11.6.2 Termination for
Convenience:

Owner’s Use of
Work Product
Owner should not use the Termination for Convenience clause to obtain Design -Builder’s valuable design concepts and then seek lower bids from another design -builder. If Owner terminates this Agreement for its own convenience, and chooses to proceed with the Project using Design-Builder’s Work Product, Owner should pay an additional sum for the use of Design-Builder’s Work Product pursuant to Section 4.3 of the Agreement.

Article
12 Electronic Data
Design-Builder and Owner shall agree on the softwar e and format for the transmission of Electronic Data. Ownership of Work Product in electronic form is governed by Article 4 of the Agreement. The transmitting party disclaims all warranties with respect to the media transmitting the Electronic Data, but nothing in this Article is intended to negate duties with respect to the standard of care in creating the Electronic Data.

TABLE OF CONTENTS
Article Name Page

Article 1 General ............................................................................................................ 1 Article 2 Design-Builder’s Services and Responsibilities ................................................ 3 Article 3 Owner’s Services and Responsibilities ............................................................. 7 Article 4 Hazardous Conditions and Differing Site Conditions ........................................ 9 Article 5 Insurance and Bonds ..................................................................................... 10 Article 6 Payment ......................................................................................................... 12 Article 7 Indemnification ............................................................................................... 14 Article 8 Time ............................................................................................................... 16 Article 9 Changes to the Contract Price and Time ....................................................... 17 Article 10 Contract Adjustments and Disputes ............................................................. 18 Article 11 Stop Work and Termination .......................................................................... 20 Article 12 Electronic Data ............................................................................................. 23 Article 13 Miscellaneous ............................................................................................... 24

DBIA Document No. 535 Page 1
Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America
Article 1
General

1.1 Mutual Obligations.

1.1.1 Owner and Design-Builder commit at all times to cooperate fully with each other and proceed on the basis of trust and good faith, to permit each party to realize the benefits afforded under the Contract Documents.

1.2 Basic Definitions.

1.2.1 Agreement refers to the executed contract between Owner and Design-Builder under either DBIA Document No. 525, Standard Form of Agreement Between Owner and Design -Builder – Lump Sum (2022 Edition); DBIA Document No. 530, Standard Form of Agreement Between Owner and Design -Builder – Cost Plus Fee With an Option for a Guaranteed Maximum Price (2022 Edition); DBIA Document No. 544 , Standard Form of Progressive Design -Build Agreement (2022 Edition); or DBIA Document No. 545 , Standard Form of Progressive Design -Build Agreement for Water and Wastewater Projects (2022 Edition).

1.2.2 Basis of Design Documents are as follows: For DBIA Document No. 530, Standard Form of Agreement Between Owner and Design -Builder – Cost Plus Fee With an Option for a Guaranteed Maximum Price , the Basis of Design Documents are those documents specifically listed in, as applicable, the GMP Exhibit or GMP Proposal as being the “Basis of Design Documents.” For DBIA Document No. 525, Standard Form of Agreement Between Owner and Design-Builder – Lump Sum, for DBIA Document No. 544, Standard Form of Progressive Design- Build Agreement, the Basis of Design Documents are Owner’s Project Criteria, Design -Builder’s Proposal, and the Deviation List, if any. For DBIA Document No. 545, Standard Form of Progressive Design -Build Agreement for Water and Wastewater Projects , the Basis of Design Documents are Owner’s Project Criteria, Design-Builder’s Proposal and the Deviation List, if any.

1.2.3 California Building Code (CBC), Latest Edition; California Plumbing Code (CPC), Latest Edition; California Mechanical Code (CMC), Latest Edition; National Electrical Code (NEC), Latest Edition; California Fire Code (CFC), Latest Edition; California Health and Safety Code (as applicable). For purposes of this definition, “Latest Edition” shall mean the edition, and to the extent, adopted by the City through the City of Fresno Municipal Code.

1.2.4 City, Buyer, Owner, Vendee, City of Fresno shall each mean and refer to the City of Fresno, California.

1.2.5 City Standard Specifications - City of Fresno, Standard Specifications, Department of Public Works, dated September 2010 and as amended from time-to-time.

1.2.6 Construction Documents are the documents, consisting of Drawings and Specifications, to be prepared or assembled by Design-Builder consistent with the Basis of Design Documents unless a deviation from the Basis of Design Documents is specifically set forth in a Change Order executed by both Owner and Design-Builder, as part of the design review process contemplated by Section

2.4 of these General Conditions of Contract.

1.2.7 Construction Manager shall mean and refer to the Owner’s authorized representative at the Job Site, in responsible charge of administering the Contract. The Construction Manager shall be the single point of contact for all correspondence, submittals, progress payment requests, and contacts to and from the Contractor.

1.2.8 Council, City Council shall each mean and refer to the Council of the Buyer.

1.2.9 Day or Days shall mean calendar days unless otherwise specifically noted in the Contract

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Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America
Documents.

1.2.10 Design-Build Team is comprised of Design -Builder, Design Consultant, and key Subcontractors identified by Design-Builder.

1.2.11 Design Consultant is a qualified, licensed design professional who is not an employee of Design-Builder, but is retained by Design -Builder, or employed or retained by anyone under contract with Design-Builder, to furnish design services required under the Contract Documents. A Design Sub -Consultant is a qualified, licensed design professional who is not an employee of Design Consultant but is retained by Design Consultant or employed or retained b y anyone under contract to Design Consultant, to furnish design services required under the Contract Documents.

1.2.12 Design Submission means any and all documents, shop drawings, electronic information, including computer programs and computer generated materials, data, plans, drawings, sketches, illustrations, specifications, descriptions, models , and other information developed, prepared, furnished, delivered or required to be delivered by, or for, Design-Builder.

1.2.13 Engineer, City Engineer shall mean and refer to the City Engineer and any duly authorized representative.

1.2.14 Final Completion is the date on which all Work is complete in accordance with the Contract Documents, including but not limited to, any items identified in the punch list prepared under Section 6.6.1 and the submission of all documents set forth in Section 6.7.2 .

1.2.15 Force Majeure Events are those events that are beyond the control of both Design-Builder and Owner, including the events of war, floods, labor disputes, earthquakes, epidemics, adverse weather conditions not reasonably anticipated, and other acts of God.

1.2.16 General Conditions of Contract refer to this DBIA Document No. 535, Standard Form of General Conditions of Contract Between Owner and Design-Builder (2022 Edition).

1.2.17 GMP Exhibit means that exhibit attached to DBIA Document No. 530, Standard Form of Agreement Between Owner and Design-Builder – Cost Plus Fee With an Option for a Guaranteed Maximum Price, which exhibit will have been agreed upon by Owner and Design -Builder prior to the execution of the Agreement.

1.2.18 GMP Proposal or Proposal means that proposal developed by Design-Builder in accordance with Section 6.6 of DBIA Document No. 530, Standard Form of Agreement Between Owner and Design-Builder, Cost Plus Fee With an Option for a Guaranteed Maximum Price or with Section 2.3 of DBIA Document No. 544, Progressive Design-Build Agreement, or DBIA Document No. 545, Progressive Design-Build Agreement for Water and Wastewater Projects.

1.2.19 Hazardous Conditions are any materials, wastes, substances and chemicals deemed to be hazardous under applicable Legal Requirements, or the handling, storage, remediation, or disposal of which are regulated by applicable Legal Requirements.

1.2.20 Legal Requirements are all applicable federal, state and local law s, codes, ordinances, rules, regulations, orders and decrees of any government or quasi -government entity having jurisdiction over the Project or Site, the practices involved in the Project or Site, or any Work.

1.2.21 Owner’s Project Criteria are developed by or for Owner to describe Owner’s program requirements and objectives for the Project, including use, space, price, time, site and expandability requirements, as well as submittal requirements and other requirements governing Design - Builder’s performance of the Work. Owner’s Project Criteria may include conceptual documents, design criteria, design performance specifications, design specifications, and LEED ® or other sustainable design criteria and other Project-specific technical materials and requirements.

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Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America

1.2.22 Purchasing Manager shall mean and refer to the Purchasing Manager of the Buyer.

1.2.23 Site is the land or premises on which the Project is located.

1.2.24 State Standard Specifications - State of California, Department of Transportation, Standard Specifications, Latest Edition.

1.2.25 Subcontractor is any person or entity retained by Design -Builder as an independent contractor to perform a portion of the Work and shall include materialmen and suppliers.

1.2.26 Sub-Subcontractor is any person or entity retained by a Subcontractor as an independent contractor to perform any portion of a Subcontractor’s Work and shall include materialmen and suppliers.

1.2.27 Substantial Completion or Substantially Complete means the date on which the Work, or an agreed upon portion of the Work, is sufficiently complet e in accordance with the Contract Documents so that Owner can occupy and use the Project or a portion thereof for its intended purposes.

1.2.28 Work is comprised of all Design-Builder’s design, construction and other services required by the Contract Docum ents, including procuring and furnishing all materials, equipment, services and labor reasonably inferable from the Contract Documents.

Article 2
Design-Builder’s Services and Responsibilities

2.1 General Services.

2.1.1 Design-Builder’s Representative shall be reasonably available to Owner and shall have the necessary expertise and experience required to supervise the Work. Design -Builder’s Representative shall communicate regularly with Owner and shall be vested with the authority to act on behalf of Design -Builder. Design-Builder’s Representative may be replaced only with the mutual agreement of Owner and Design-Builder.

2.1.2 Unless the parties agree on a different time period for submission of a status report, Design-Builder shall provide Owner with a monthly status report detailing the progress of the Work, including (i) whether the Work is proceeding according to schedule ; (ii) whether discrepancies, conflicts, or ambiguities exist in the Contract Documents that require resolution; (iii) whether health and safety issues exist in connection with the Work; (iv) status of the contingency account to the extent provided for in the Standard Form of Agreement Between Owner and Design-Builder – Cost Plus Fee With an Optio n for a Guaranteed Maximum Price ; and (v) other items that require resolution so as not to jeopardize Design -Builder’s ability to complete the Work for the Contract Price and within the Contract Time(s). Status reports shall be submitted with Design-Builder’s draft Payment Applications as a pre-requisite to payment.

2.1.3 Unless a schedule for the execution of the Work has been attached to the Agreement as an exhibit at the time the Agreement is executed, Design-Builder shall prepare and submit, at least three (3) days prior to the meeting contemplated by Section 2.1.4 hereof, a schedule for the execution of the Work for Owner’s review and response. The schedule shall indicate the dates for the start and completion of the various stages of Work, including the dates when Owner information and approvals are required to enable Design-Builder to achieve the Contract Time(s). The schedule shall be revised as required by conditions and progress of the Work, but such revisions shall not

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Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America
relieve Design-Builder of its obligations to complete the Work within the Contract Time(s), as such dates may be adjusted in accordance with the Contract Documents. Owner’s review of , and response to, the schedule shall not be construed as relieving Design -Builder of its complete and exclusive control over the means, methods, sequences and techniques for executing the Work.

2.1.4 The parties will meet within seven (7) days after execution of the Agreement to discuss issues affecting the administration of the Work and to implement the necessary procedures, including those relating to submittals and payment, to facilitate the ability of the parties to perform their obligations under the Contract Documents.

2.2 Design Professional Services.

2.2.1 Design-Builder shall, consistent with applicable state licensing laws, provide through qualified, licensed design professionals employed by Design -Builder, or procured from qualified, independent licensed Design Consultants, the necessary design services, including architectural, engineering and other design professional services, for the preparation of the required drawings, specifications and other design submittals to permit Design-Builder to complete the Work consistent with the Contract Documents. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Design Consultant.

2.2.2 Design-Builder shall employ only Design Consultants and/or Design Subconsultants who are duly licensed and qualified to perform the Work consistent with the Contract Documents . Prior to the date that Design Consultants and/or Design Subconsultants perform Work on the Project, Design-Builder shall identify in writing to Owner all Design Consultants and Design Subconsultants.

To the extent that Design -Builder has not selected a Design Consultant or Design Subconsultant prior to performing the Work, Design -Builder shall provide Owner in writing a list of any subsequently added Design Consultants and/or Design Subconsultants and their scope of Work prior to their performing Work on the Project. Owner may reasonably object to Design -Builder’s selection of any Design Consultant or Design Subconsultant, provided that the Contract Price and/or Contract Time(s) shall be adjusted to the extent that Owner’s decision impacts Design - Builder’s cost and/or time of performance. Design-Builder shall not substitute a listed Design Consultant or Subconsultant without obtaining Owner’s prior written consent ; such consent shall not be unreasonably withheld. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Design Consultant or Design Subconsultant, including but not limited to any third-party beneficiary rights.

2.3 Standard of Care for Design Professional Services.

2.3.1 The standard of care for all design professional services performed to execute the Work shall be the care and skill ordinarily used by members of the applicable profession practicing under similar conditions at the same time and locality of the Project.

2.4 Design Development Services.

2.4.1 Design-Builder and Owner shall, consistent with any applicable provision of the Contract Documents, agree upon any interim Design Submissions that Owner may wish to review, which interim Design Submissions may include design criteria, drawings, diagram s and specifications setting forth the Project requirements.

2.4.1.1 Design Submissions shall be consistent with the Owner’s Project Criteria as well as the Basis of Design Documents, as the Basis of Design Documents may have been changed or supplemented through the design process set forth in this Section 2.4.1. By submitting Design Submissions, Design-Builder represents to the Owner that the Work depicted a nd otherwise shown, contained , or reflected in Design Submissions may be constructed in compliance with the then current Contract Price and Contract Time .

Notwithstanding the above, Design -Builder may propose Design Submissions that may alter the Basis of Design Documents, the Contract Price and/or Contract Time; however,

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Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America
Design-Builder must provide notice thereof in accordance with Article 10 of the General Conditions and obtain a Change Order before such proposed Design Submissions are incorporated into the Construction Documents.

2.4.1.2 On or about the time of the Design Submissions, Design-Builder and Owner shall meet and confer about the Design S ubmissions, with Design -Builder identifying during such meetings, among other things, the evolution of the design and any changes to the Basis of Design Documents, or, if applicable, previously submitted Design Submissions.

Changes to the Basis of Design D ocuments, including those that are deemed minor changes under Section 9.3.1, shall be processed in accordance with Article 9. Minutes of the meetings, including a full listing of all changes, will be maintained by Design -Builder and provided to all attendees for review. Following the design review meeting, Owner shall review and approve the interim Design Submissions and meeting minutes in a time that is consistent with the turnaround times set forth in Design-Builder’s schedule.

2.4.1.3 Owner shall review and respond to Design Submissions, providing any comments and/or concerns about the Design Submissions. Owner shall provide all comments on the Design Submissions within the time provided by the Contract Documents. Design -Builder shall revise the Design Submissions (and any other deliverables) in response to Owner’s comments and incorporate said responses into the next submission of Design Submissions.

2.4.1.4 If incorporation of Owner’s comments result s in a design that is inconsistent with or otherwise give s rise to a change in Owner’s Project Criteria , the Basis of Design Documents, the Contract Price and/or the Contract Time , Design -Builder shall provide notice thereof in accordance with Articles 9 and 10 of the General Conditions. Changes to the Basis of Design Documents , the Contract Price and/or the Contract Time, including those that are deemed minor changes, shall be processed in accordance with Article 9 of the General Conditions.

2.4.2 Design-Builder shall submit to Owner Construction Documents setting forth in detail drawings and specifications describing the requirements for construction of the Work. The Construction Documents shall be consistent with the latest set of interim Design Submissions, as such submissions may have been modified in a design review meeting and recorded in the meeting minutes. The parties shall have a design review meeting to discuss, and Owner shall review and approve, the Construction Documents in accordance with the procedures set forth in Section 2.4.1 above. Design-Builder shall proceed with construction in accordance with the approved Construction Documents and shall submit one set of approved Construction Documents to Owner prior to commencement of construction.

2.4.3 Owner’s review and approval of interim Design Submissions , meeting minutes, and the Construction Documents is for the purpose of mutually establishing a conformed set of Contract Documents compatible with the requirements of the Work. Neither Owner’s review nor approval of any interim Design Submissions, meeting minutes, and Construction Documents shall be deemed to transfer any design liability from Design -Builder to Owner. Design-Builder shall provide Owner with sufficient time in the Project Schedule to review and approve the Design Submissions.

2.4.4 To the extent not prohibited by the Contract Documents or Legal Requirements, Design - Builder may prepare interim Design Submissions and Construction Documents for a portion of the Work to permit construction to proceed on that portion of the Work prior to completion of the Construction Documents for the entire Work.

2.5 Legal Requirements.

2.5.1 Design-Builder shall perform the Work in accordance with all Legal Requirements and shall provide all notices applicable to the Work as required by the Legal Requirements.

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Standard Form of General Conditions of Contract Between Owner and Design-Builder © 2022 Design-Build Institute of America

2.5.2 The Contract Price and/or Contract Time(s) shall be adjusted to compensate Design - Builder for the effects of any changes in the Legal Requirements enacted after the date of the Agreement affecting the performance of the Work, or if a Guaranteed Maximum Price is established after the date of the Agreement, the date the parties agree upon the Guaranteed Maximum Price.

Such effects may include, without limitation, revisions Design -Builder is required to make to the Construction Documents because of changes in Legal Requirements.

2.6 Government Approvals and Permits.

2.6.1 Except as identified in an Owner’s Permit List attached as an exhibit to the Agreement, Design-Builder shall obtain and pay for all necessary permits, approvals, licenses, government charges and inspection fees required for the prosecution of the Work by any government or quasi- government entity having jurisdiction over the Project.

2.6.2 Design-Builder shall provide reasonable assistance to Owner in obtaining tho se permits, approvals and licenses that are Owner’s responsibility.

2.7 Design-Builder’s Construction Phase Services.

2.7.1 Unless otherwise provided in the Contract Documents to be the responsibility of Owner or a separate contractor, Design-Builder shall provide through itself or Subcontractors the necessary supervision, labor, inspection, testing, start-up, material, equipment, machinery, temporary utilities and other temporary facilities to permit Design -Builder to complete construction of the Project consistent with the Contract Documents.

2.7.2 Design-Builder shall perform all construction activities efficiently and with the requisite expertise, skill and competence to satisfy the requirements of the Contract Documents. Design- Builder shall at all time s exercise complete and exclusive control over the means, methods, sequences and techniques of construction.

2.7.3 Design-Builder shall employ only Subcontractors who are duly licensed and qualified to perform the Work consistent with the Contract Document s. Prior to the date that Subcontractors perform Work on the Project, Design -Builder shall identify in writing to Owner all Subcontractors.

To the extent that Design -Builder has not selected a Subcontractor prior to performing the Work, Design-Builder shall provide Owner in writing a list of any subsequently added Subcontractors prior to their performing Work on the Project. Owner may reasonably object to Design-Builder’s selection of any Subcontractor, provided that the Contract Price and/or Contract Time(s) shall be adjusted to the extent that Owner’s decision impacts Design -Builder’s cost and/or time of performance.

Design-Builder may not substitute listed Subcontractors without Owner’s prior written consent; such consent shall not be unreasonably withheld.

2.7.4 Design-Builder assumes responsibility to Owner for the proper performance of the Work of Subcontractors and any acts and omissions in connection with such performance. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Subcontractor or Sub -Subcontractor, including but not limited to any third-party beneficiary rights.

2.7.5 Design-Builder shall coordinate the activities of all Subcontractors. If Owner performs other work on the Project or at the Site with separate contractors under Owner’s control, Design -Builder agrees to reasonably cooperate and coordinate its activities with those of such separate contractors so that the Project can be completed in an orderly and coordinated manner without unreasonable disruption.

2.7.6 Design-Builder shall keep the Site reasonably free from debris, tr ash, graffiti and vandalism, and construction wastes to permit Design -Builder to perform its construction services efficiently, safely and without interfering with the use of adjacent land areas. Upon Substantial Completion of the Work, or a portion of the Work, Design-Builder shall remove all debris, trash,

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graffiti, U.S.A. markings, construction wastes, materials, equipment, machinery and tools arising from the Work or applicable portions thereof to permit Owner to occupy the Project or a portion of the Project for its intended use.

2.8 Design-Builder’s Responsibility for Project Safety.

2.8.1 Design-Builder recognizes the importance of performing the Work in a safe manner so as to prevent damage, injury or loss to (i) all individuals at the Site, whether working or visiting; (ii) the Work, including materials and equipment incorporated into the Work or stored on -Site or off-Site; and (iii) all other property at the Site or adjacent thereto. Design-Builder assumes responsibility for implementing and monitoring all safety precautions and programs related to the performance of the Work. Design-Builder shall, prior to commencing constructio n, designate a Safety Representative with the necessary qualifications and experience to supervise the implementation and monitoring of all safety precautions and programs related to the Work. Unless otherwise required by the Contract Documents, Design-Builder’s Safety Representative shall be an individual stationed at the Site who may have responsibilities on the Project in addition to safety. The Safety Representative shall make routine daily inspections of the Site and shall hold weekly safety meetings with Design- Builder’s personnel, Subcontractors and others as applicable.

2.8.2 Design-Builder and Subcontractors shall comply with all Legal Requirements relating to safety, as well as any Owner -specific safety requirements set forth in the Contract Docume nts, provided that such Owner-specific requirements do not violate any applicable Legal Requirement.

Design-Builder will immediately report in writing any safety-related injury, loss, damage or accident arising from the Work to Owner’s Representative and, to the extent mandated by Legal Requirements, to all government or quasi -government authorities having jurisdiction over safety - related matters involving the Project or the Work.

2.8.3 Design-Builder’s responsibility for safety under this Section 2.8 is n ot intended in any way to relieve Subcontractors and Sub -Subcontractors of their own contractual and legal obligations and responsibility for (i) complying with all Legal Requirements, including those related to health and safety matters ; and (ii) taking a ll necessary measures to implement and monitor all safety precautions and programs to guard against injuries, losses, damages or accidents resulting from their performance of the Work.

2.9 Design-Builder’s Warranty.

2.9.1 Design-Builder warrants to Owner that the construction, including all materials and equipment furnished as part of the construction, shall be new unless otherwise specified in the Contract Documents, of good quality, in conformance with the Contract Documents and free of defects in materials and workmanship. Design-Builder’s warranty obligation excludes defects caused by abuse, alterations, or failure to maintain the Work in a commercially reasonable manner.

Nothing in this warranty is intended to limit any manufacturer’s warranty which provides Owner with greater warranty rights than set forth in this Section 2.9 or the Contract Documents. Design-Builder will provide Owner with all manufacturers’ warranties upon Substantial Completion.

2.10 Correction of Defective Work.

2.10.1 Design-Builder agrees to correct any Work that is found to not be in conformance with the Contract Documents, including that part of the Work subject to Section 2.9 hereof, within a period of one year from the date of Substantial Completion of the Work or any po rtion of the Work, or within such longer period to the extent required by any specific warranty included in the Contract Documents.

2.10.2 Design-Builder shall, within seven (7) days of receipt of written notice from Owner that the Work is not in conforman ce with the Contract Documents, take meaningful steps to commence correction of such nonconforming Work, including the correction, removal or replacement of the nonconforming Work and any damage caused to other parts of the Work affected by the

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nonconforming Work. If Design-Builder fails to commence the necessary steps within such seven (7) day period, Owner, in addition to any other remedies provided under the Contract Documents, may provide Design -Builder with written notice that Owner will commence corre ction of such nonconforming Work with its own forces. If Owner does perform such corrective Work, Design - Builder shall be responsible for all reasonable costs incurred by Owner in performing such correction. If the nonconforming Work creates an emergency requiring an immediate response, the seven (7) day period identified herein shall be deemed inapplicable.

2.10.3 The one-year period referenced in Section 2.10.1 above applies only to Design -Builder’s obligation to correct nonconforming Work and is not intended to constitute a period of limitations for any other rights or remedies Owner may have regarding Design -Builder’s other obligations under the Contract Documents.

Article 3
Owner’s Services and Responsibilities

3.1 Duty to Cooperate.

3.1.1 Owner shall, throughout the performance of the Work, cooperate with Design -Builder and perform its responsibilities, obligations and services in a timely manner to facilitate Design-Builder’s timely and efficient performance of the Work and so as not to delay or interfere with Design - Builder’s performance of its obligations under the Contract Documents.

3.1.2 Owner shall provide timely reviews and approvals of interim Design Submissions and Construction Documents consistent with the turnaround times set forth in D esign-Builder’s schedule.

3.1.3 Owner shall give Design -Builder timely notice of any Work that Owner notices to be defective or not in compliance with the Contract Documents.

3.2 Furnishing of Services and Information.

3.2.1 Unless expressly stated to the contrary in the Contract Documents, Owner shall provide, at its own cost and expense, for Design -Builder’s information and use the following, all of which Design-Builder is entitled to rely upon in performing the Work:

3.2.1.1 Surveys describing the property, boundaries, topography and reference points for use during construction, including existing service and utility lines;

3.2.1.2 Geotechnical studies describing subsurface conditions, and other surveys describing other latent or concealed physical conditions at the Site;

3.2.1.3 Temporary and permanent easements, zoning and other requirements and encumbrances affecting land use, or necessary to permit the proper design and construction of the Project and enable Design-Builder to perform the Work;

3.2.1.4 A legal description of the Site;

3.2.1.5 To the extent available, record drawings of any existing structures at the Site; and

3.2.1.6 To the extent available, environmental studies, reports and impact statements describing the environmental conditions, including Hazardous Conditions, in existence at the Site.

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3.2.2 Owner is responsible for securing and executing all necessary agreements with adjacent land or property owners that are necessary to enable Design -Builder to perform the Work. Owner is further responsible for all costs, including attorneys’ fees, incurred in securing these necessary agreements.

3.3 Financial Information.

3.3.1 At Design -Builder’s written request, Owner shall promptly furnish reasonable eviden ce satisfactory to Design-Builder that Owner has adequate funds available and committed to fulfill all of Owner’s contractual obligations under the Contract Documents. If Owner fails to furnish such financial information in a timely manner, Design-Builder may stop Work under Section 11.3 hereof or exercise any other right permitted under the Contract Documents.

3.3.2 Design-Builder shall cooperate with the reasonable requirements of Owner’s lenders or other financial sources. Notwithstanding the preceding sentence, after execution of the Agreement Design-Builder shall have no obligation to execute for Owner or Owner’s lenders or other financial sources any documents or agreements that require Design -Builder to assume obligations or responsibilities greater than those existing obligations Design -Builder has under the Contract Documents.

3.4 Owner’s Representative.

3.4.1 Owner’s Representative shall be responsible for providing Owner-supplied information and approvals in a timely manner to permit Design -Builder to fulfill its obligations under the Contract Documents. Owner’s Representative shall also provide Design -Builder with prompt notice if it observes any failure on the part of Design-Builder to fulfill its contractual obligations, including any errors, o missions or defects in the performance of the Work. Owner’s Representative shall communicate regularly with Design-Builder and shall be vested with the authority to act on behalf of Owner.

3.5 Government Approvals and Permits.

3.5.1 Owner shall obtain and pay for all necessary permits, approvals, licenses, government charges and inspection fees set forth in Owner’s Permit List attached as an exhibit to the Agreement.

3.5.2 Owner shall provide reasonable assistance to Design -Builder in obtaining those permits, approvals and licenses that are Design-Builder’s responsibility.

3.6 Owner’s Separate Contractors.

3.6.1 Owner is responsible for all work performed on the Project or at the Site by separate contractors under Owner’s control. Owner shall contractu ally require its separate contractors to cooperate with and coordinate their activities so as not to interfere with Design -Builder in order to enable Design-Builder to timely complete the Work consistent with the Contract Documents.

Article 4
Hazardous Conditions and Differing Site Conditions

4.1 Hazardous Conditions.

4.1.1 Unless otherwise expressly provided in the Contract Documents to be part of the Work, Design-Builder is not responsible for any Hazardous Conditions encountered at the Site. Upon

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encountering any Hazardous Conditions, Design-Builder will stop Work immediately in the affected area and duly notify Owner and, if required by Legal Requirements, all government or quasi-government entities with jurisdiction over the Project or Site.

4.1.2 Upon receiving notice of the presence of suspected Hazardous Conditions, O wner shall take the necessary measures required to ensure that the Hazardous Conditions are remediated or rendered harmless.

4.1.3 Design-Builder shall be obligated to resume Work at the affected area of the Project only after Owner’s expert provides it w ith written certification that (i) the Hazardous Conditions have been removed or rendered harmless; and (ii) all necessary approvals have been obtained from all government and quasi-government entities having jurisdiction over the Project or Site.

4.1.4 Design-Builder will be entitled, in accordance with these General Conditions of Contract, to an adjustment in its Contract Price and/or Contract Time(s) to the extent Design -Builder’s cost and/or time of performance have been adversely impacted by the presen ce of Hazardous Conditions.

4.1.5 Notwithstanding the preceding provisions of this Section 4.1, Owner is not responsible for Hazardous Conditions introduced to the Site by Design -Builder, Subcontractors or anyone for whose acts they may be liable. To the f ullest extent permitted by law, Design -Builder shall indemnify, defend and hold harmless Owner and Owner’s officers, directors, employees and agents from and against all claims, losses, damages, liabilities and expenses, including attorneys’ fees expenses, and costs to enforce this agreement, arising out of or resulting from those Hazardous Conditions introduced to the Site by Design-Builder, Subcontractors or anyone for whose acts they may be liable.

4.2 Differing Site Conditions.

4.2.1 Concealed or latent physical conditions or subsurface conditions at the Site that (i) materially differ from the conditions indicated in the Contract Documents or (ii) are of an unusual nature, differing materially from the conditions ordinarily encountered and generally rec ognized as inherent in the Work , are collectively referred to herein as “Differing Site Conditions.” If Design- Builder encounters a Differing Site Condition, Design-Builder will be entitled to an adjustment in the Contract Price and/or Contract Time(s) to the extent Design -Builder’s cost and/or time of performance are adversely impacted by the Differing Site Condition.

4.2.2 Upon encountering a Differing Site Condition, Design -Builder shall provide prompt written notice to Owner of such condition, which notice shall not be later than fourteen (14) days after such condition has been encountered. Design-Builder shall, to the extent reasonably possible, provide such notice before the Differing Site Condition has been substantially disturbed or altered.

Article 5
Insurance and Bonds

5.1 Design-Builder’s Insurance Requirements.

5.1.1 MINIMUM LIMITS DETAILED BELOW APPLY DURING DESIGN PHASE (PHASE 1) ONLY. THE HIGHER LIMITS DETAILED IN 5.1.2 MUST BE IN FORCE PRIOR TO ANY CONSTRUCTION (PHASE 2).
(a) Throughout the life of this Agreement, DESIGN-BUILDER shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A -

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VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by OWNER'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated there in. However, the insurance limits available to OWNER, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension, DESIGN-BUILDER or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to DESIGN- BUILDER shall be withheld until notice is received by OWNER that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to OWNER. Any failure to maintain the required insurance shall be sufficient cause for OWNER to terminate this Agreement. No action taken by OWNER pursuant to this section shall in any way relieve DESIGN-BUILDER of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by OWNER that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by DESIGN-BUILDER shall not be deemed to release or diminish the liability of DESIGN-BUILDER, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify OWNER shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by DESIGN-BUILDER. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of DESIGN- BUILDER, vendors, suppliers, invitees, contractors, sub -contractors, subcontractors, or anyone employed directly or indirectly by any of them.

Coverage shall be at least as broad as:

1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy sh all be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non -owned equipment), products and comple ted operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.”

2. The most current version of ISO *Commercia l Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto).

3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.

4. Professional Liability (Errors and Omissions) insurance appropriate to DESIGN-BUILDER’s profession.

MINIMUM LIMITS OF INSURANCE DESIGN/BUILD DESIGN-BUILDER

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DESIGN-BUILDER shall procure and maintain for the duration of the contract, and for 5 years thereafter, insurance with limits of liability n ot less than those set forth below. However, insurance limits available to OWNER, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured:

1. COMMERCIAL GENERAL LIABILITY
(i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreemen t.

2. COMMERCIAL AUTOMOBILE LIABILITY
$1,000,000 per accident for bodily injury and property damage.

3. Workers’ Compensation Insurance as required by the State of California with statutory limits and EMPLOYER’S LIABILITY with limits of liability not less than:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.

4. PROFESSIONAL LIABILITY (Errors and Omissions):

(i) $2,000,000 per claim/occurrence; and,
(ii) $4,000,000 policy aggregate.

UMBRELLA OR EXCESS INSURANCE

In the event DESIGN-BUILDER purchases an Umbrella or Exces s insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non -contributory basis for the benefit of the OWNER, its officers, officials, employees, agents and volunteers.

DEDUCTIBLES AND SELF-INSURED RETENTIONS

DESIGN-BUILDER shall be responsible for payment of any deductibles contained in an y insurance policy(ies) required herein and DESIGN-BUILDER shall also be responsible for payment of any self - insured retentions. Any deductibles or self -insured retentions must be declared on the Certificate of Insurance, and approved by, the OWNER’S Risk Manager or his/her designee. At the option of the OWNER’S Risk Manager or his/her designee, either:

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(i) The insurer shall reduce or eliminate such deductibles or self -insured retentions as respects OWNER, its officers, officials, employees, agents and volunteers; or

(ii) DESIGN-BUILDER shall provide a financial guarantee, satisfactory to OWNER’S Risk Manager or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall OWNER be responsible for the payment of any deductibles or self - insured retentions.

OTHER INSURANCE PROVISIONS/ENDORSEMENTS

(i) All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice has been given to OWNER, except ten (10) days for nonpayment of premium. DESIGN-BUILDER is also responsible for providing written notice to the OWNER under the same terms and conditions.

Upon issuance by the insurer, broker, or agent of a notice of cancellation, non -renewal, or reduction in coverage or in limits, DESIGN-BUILDER shall furnish OWNER with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for OWNER, DESIGN-BUILDER shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy.
(ii) The Commercial General and Automobile, Liability insurance policies shall be written on an occurrence form.
(iii) The Commercial General and Automobile Liability insurance policies shall be endorsed to name City of Fresno , its officers, officials, agents, employees and volunteers as an additional insured.

DESIGN-BUILDER shall establish additi onal insured status for the OWNER for all ongoing and completed operations under Commercial General Liability policies by use of ISO Forms or an executed manuscript insurance company endorsement providing additional insured status. The Commercial General endorsements must be as broad as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20 37.
(iv) All such policies of insurance shall be endorsed so the DESIGN-BUILDERS’ insurance shall be primary and no contribution shall be required of OWNER. The coverage shall contain no special limitations on the scope of protection afforded to Owner, its officers, officials, employees, agents and volunteers. If DESIGN-BUILDER maintains higher limits of liability than the minimums shown above, OWNER requires and shall be entitled to coverage for the higher limits of liability maintained by DESIGN- BUILDER.
(v) Should any of these policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defen se costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits.
(vi) For any claims related to this Agreement, DESIGN-BUILDER’S insurance coverage shall be primary insurance with respect to the City of Fre sno, its officers, officials, agents, employees and volunteers. Any insurance or self -insurance maintained by the OWNER, its officers, officials, agents, employees and volunteers shall be excess of the DESIGN-BUILDER’S insurance and shall not contribute with it.
(vii) The Workers’ Compensation insurance policy shall contain, or be endorsed to contain, a waiver of subrogation as to City of Fresno, its officers, officials, agents, employees and volunteers.

If the Professional (Errors and Omissions) policy is written on a claims-made form:

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1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by DESIGN-BUILDER.

2. Insurance must be maintained and evidence of insurance must be provided fo r at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period.

3. If coverage is canceled or non-renewed, and not replaced with another claims -made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by DESIGN-BUILDER, DESIGN-BUILDER must purchase “extended reporting” coverage for a minimum of five (5) years completion of the Agreement work or termination of the Agreement, whichever occurs first.

4. A copy of the claims reporting requirements must be submitted to OWNER for review.

5. These requirements shall survive expiration or termination of the Agreement.

PROVIDING OF DOCUMENTS - DESIGN-BUILDER shall furnish OWNER with all certificate(s) and applicable endorsements effecting coverage required herein All certificates and applicable endorsements are to be received and approved by the OWNER’S Risk Manager or his/her designee prior to OWNER’S execution of the Agreement and before work commences. All non -ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of OWNER, DESIGN-BUILDER shall immediately furnish OWNER with a comple te copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this A greement. All subcontractors working under the direction of DESIGN-BUILDER shall also be required to provide all documents noted herein.

SUBCONTRACTORS -If DESIGN-BUILDER subcontracts any or all of the services to be performed under this Agreement, DESIGN-BUILDER shall require, at the discretion of the OWNER Risk Manager or designee, subcontractor (s) to enter into a separate Side Agreement with the Owner to provide required indemnification and insurance protection. Any required Side Agreement(s) and a ssociated insurance documents for the subcontractors must be reviewed and preapproved by OWNER Risk Manager or designee. If no Side Agreement is required, DESIGN-BUILDER shall require and verify that subcontractors maintain insurance meeting all the requi rements stated herein and DESIGN-BUILDER shall ensure that OWNER, its officers, officials, employees, agents and volunteers are additional insureds. The subcontractors' certificates and endorsements shall be on file with DESIGN-BUILDER, and OWNER, prior to commencement of any work by the subcontractors.

5.1.2 PHASE 2 BUILD Design-Builder’s insurance shall specifically delete any design -build or similar exclusions that could compromise coverages because of the design -build delivery of the Project.
(a) Throughout the life of this Agreement, DESIGN-BUILDER shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the Sta te of California and rated no less than “A -VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by OWNER'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those

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amounts stated therein. However, the insurance limits available to OWNER, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, DESIGN-BUILDER or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to DESIGN -BUILDER shall be withheld until notice is received by OWNER that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to OWNER. Any failure to maintain the required insurance shall be sufficient cause for OWNER to terminate this Agreement. No action taken by OWNER pursuant to this section shall in any way relieve DESIGN -BUILDER of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by OWNER that an insurer has commenced pro ceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by DESIGN -BUILDER shall not be deemed to release or diminish the liability of DESIGN -BUILDER, including, without limita tion, liability under the indemnity provisions of this Agreement. The duty to indemnify OWNER shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by DESIGN-BUILDER. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of DESIGN -BUILDER, vendors, suppliers, invitees, contractors, sub -contractors, subcontractors, or anyone employed directly or indirectly by any of them.

Coverage shall be at least as broad as:

1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set f orth under “Minimum Limits of Insurance.”

2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto).

3. Workers’ Compensation insurance as required by the State of Califor nia and Employer’s Liability Insurance.

4. Professional Liability (Errors and Omissions) insurance appropriate to DESIGN - BUILDER’s profession.

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MINIMUM LIMITS OF INSURANCE DESIGN/BUILD DESIGN-BUILDER

DESIGN-BUILDER shall procure and maintain for the du ration of the contract, and for 5 years thereafter, insurance with limits of liability not less than those set forth below. However, insurance limits available to OWNER, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured:

1. COMMERCIAL GENERAL LIABILITY
(i) $5,000,000 per occurrence for bodily injury and property damage; (ii) $5,000,000 per occurrence for personal and advertising injury; (iii) $10,000,000 aggregate for products and completed operations; and, (iv) $10,000,000 general aggregate applying separately to the work performed under the Agreement.

2. COMMERCIAL AUTOMOBILE LIABILITY
$1,000,000 per accident for bodily injury and property damage.

3. Workers’ Compensation Insurance as required by the State of California with statutory limits and EMPLOYER’S LIABILITY with limits of liability not less than:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.

4. PROFESSIONAL LIABILITY (Errors and Omissions):

(i) $2,000,000 per claim/occurrence; and,
(ii) $4,000,000 policy aggregate.

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5. BUILDERS RISK (Course of Construction) insurance in an amount equal to the completed value of the project with no coinsurance penalty provisions.

6. CONTRACTOR’S POLLUTION LIABILITY with coverage for bodily injury, property damage or pollution clean -up costs that could result from of pollution condition, both sudden and gradual. Includin g a discharge of pollutants brought to the work site, a release of pre -existing pollutants at the site, or other pollution conditions with limits of liability of not less than the following:

(i) $2,000,000 per occurrence or claim; and,
(ii) $4,000,000 general aggregate per annual policy period.

(a) In the event this Agreement involves the transportation of hazardous material, either the Commercial Automobile policy or other appropriate insurance policy shall be endorsed to include Transportation Pollution Liability insurance covering materials to be transported by DESIGN - BUILDER pursuant to the Agreement.

UMBRELLA OR EXCESS INSURANCE

In the event DESIGN -BUILDER purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insuran ce,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non -contributory basis for the benefit of the OWNER, its officers, officials, employees, agents and volunteers.

DEDUCTIBLES AND SELF-INSURED RETENTIONS

DESIGN-BUILDER shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and DESIGN -BUILDER shall also be responsible for payment of any self-insured retentions. Any deductibles or self -insured retentions must be declared on the Certificate of Insurance, and approved by, the OWNER’S Risk Manager or his/her designee. At the option of the OWNER’S Risk Manager or his/her designee, either:

(i) The insurer shall reduce or eliminate such deductibles or self -insured retentions as respects OWNER, its officers, officials, employees, agents and volunteers; or

(ii) DESIGN-BUILDER shall provide a financial guarantee, satisfactory to OWNER’S Risk Manager or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall OWNER be responsible for the payment of

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any deductibles or self-insured retentions.

OTHER INSURANCE PROVISIONS/ENDORSEMENTS

(i) All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non -renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice has been given to OWNER, except ten (10) days for nonpayment of premium. DESIGN-BUILDER is also responsible for providing written notice to the OWNER under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, DESIGN -BUILDER shall furnish OWNER with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for OWNER, DESIGN -BUILDER shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. (ii) The Commercial General, Automobile, and Pollution Liability insurance pol icies shall be written on an occurrence form.
(iii) The Commercial General, Automobile and Contractors Pollution Liability insurance policies shall be endorsed to name City of Fresno, its officers, officials, agents, employees and volunteers as an additi onal insured. DESIGN -BUILDER shall establish additional insured status for the OWNER for all ongoing and completed operations under both Commercial General and Commercial Pollution Liability policies by use of ISO Forms or an executed manuscript insurance company endorsement providing additional insured status. The Commercial General endorsements must be as broad as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20 37.
(iv) All such policies of insurance shall be endorsed so the DESIGN -BUILDERS’ insurance shall be primary and no contribution shall be required of OWNER. The coverage shall contain no special limitations on the scope of protection afforded to Owner, its officers, officials, employees, agents and volunteers. If DESIGN-BUILDER maintains higher limits of liability than the minimums shown above, OWNER requires and shall be entitled to coverage for the higher limits of liability maintained by DESIGN-BUILDER.
(v) Should any of these policies provide that the defense costs are p aid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. (vi) For any claims related to this Agreement, DESIGN -BUILDER’S insurance coverage shall be primary insurance with respect to the City of Fresno, its officers, officials, agents, employees and volunteers. Any insurance or self -insurance maintained by the OWNER, its officers, officials, agents, employees and volunteers shall be excess of the DESIGN-BUILDER’S insurance and shall not contribute with it.
(vii) The Workers’ Compensation insurance policy shall contain, or be endorsed to contain, a waiver of subrogation as to City of Fresno, its officers, officials, agents, employees and volunteers. (viii) The Builder’s Risk Insurance shall have the policy endorsed to provide the City of Fresno to be named as a Loss Payee.

If the Professional (Errors and Omissions) policy is written on a claims-made form:

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1. The retr oactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by DESIGN-BUILDER.

2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of th e Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period.

3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by DESIGN-BUILDER, DESIGN-BUILDER must purchase “extended reporting” coverage for a minimum of five (5) years completion of the A greement work or termination of the Agreement, whichever occurs first.

4. A copy of the claims reporting requirements must be submitted to OWNER for review.

5. These requirements shall survive expiration or termination of the Agreement.

PROVIDING OF DOCUMENTS - DESIGN-BUILDER shall furnish OWNER with all certificate(s) and applicable endorsements effecting coverage required herein All certificates and applicable endorsements are to be received and approved by the OWNER’S Risk Manager or his/her designee prior to OWNER’S execution of the Agreement and before work commences. All non - ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of OWNER, DESIGN-BUILDER shall immediately furnish OWNER with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expi ration or termination of this Agreement. All subcontractors working under the direction of DESIGN -BUILDER shall also be required to provide all documents noted herein.

SUBCONTRACTORS -If DESIGN -BUILDER subcontracts any or all of the services to be performed under this Agreement, DESIGN-BUILDER shall require, at the discretion of the OWNER Risk Manager or designee, subcontractor (s) to enter into a separate Side Agreement with the Owner to provide required indemnification and insurance protection. Any r equired Side Agreement(s) and associated insurance documents for the subcontractors must be reviewed and preapproved by OWNER Risk Manager or designee. If no Side Agreement is required, DESIGN - BUILDER shall require and verify that subcontractors maintain insurance meeting all the requirements stated herein and DESIGN-BUILDER shall ensure that OWNER, its officers, officials, employees, agents and volunteers are additional insureds. The subcontractors' certificates and endorsements shall be on file with DES IGN-BUILDER, and OWNER, prior to commencement of any work by the subcontractors.

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5.4 Bonds and Other Performance Security.

5.4.1 If Owner requires Design -Builder to obtain performance and labor and material payment bonds, or other forms of performance secu rity, the amount, form and other conditions of such security shall be as set forth in the Agreement.

5.4.2 All bonds furnished by Design-Builder shall be in a form satisfactory to Owner. The surety shall be a company
Article 6
Payment

6.1 Schedule of Values.

6.1.1 Unless required by Owner upon execution of this Agreement, within ten (10) days of execution of the Agreement, Design -Builder shall submit for Owner’s review and approval a schedule of values for all of the Work. The Schedule of Values will (i) subdivide the Work into its respective parts; (ii) include values for all items comprising the Work ; and (iii) serve as the basis for monthly progress payments made to Design-Builder throughout the Work.

6.1.2 Owner will timely review and approve the s chedule of values so as not to delay the submission of Design-Builder’s first application for payment. Owner and Design-Builder shall timely resolve any differences so as not to delay Design -Builder’s submission of its first application for payment.

6.2 Monthly Progress Payments.

6.2.1 On or before the date established in the Agreement, Design -Builder shall submit for Owner’s review and approval its Application for Payment requesting payment for all Work performed as of the date of the Application for Pay ment. The Application for Payment shall be accompanied by all supporting documentation required by the Contract Documents and/or established at the meeting required by Section 2.1.4 hereof.

6.2.2 The Application for Payment may request payment for equipmen t and materials not yet incorporated into the Project, provided that (i) Owner is satisfied that the equipment and materials are suitably stored at either the Site or another acceptable location; (ii) the equipment and materials are protected by suitable insurance; and (iii) upon payment, Owner will receive the equipment and materials free and clear of all liens and encumbrances.

6.2.3 All discounts offered by Subcontractor s, Sub -Subcontractors, and suppliers to Design - Builder for early payment shall accrue one hundred percent to Design-Builder to the extent Design- Builder advances payment. Unless Owner advances payment to Design -Builder specifically to receive the discount, Design -Builder may include in its Application for Payment the full undiscounted cost of the item for which payment is sought.

6.2.4 The Application for Payment shall constitute Design-Builder’s representation that the Work described therein has been performed consistent with the Contract Documents, has progressed to the point indicated in the Application for Payment, and that title to all Work will pass to Owner free and clear of all claims, liens, encumbrances, and security interests upon the incorporation of the Work into the Project, or upon Design-Builder’s receipt of payment, whichever occurs earlier.

6.3 Withholding of Payments.

6.3.1 On or before the date established in the Agreement, Owner shall pay Design -Builder all amounts properly due. If Owner determines that Design -Builder is not entitled to all or part of an

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Application for Payment as a result of Design-Builder’s failure to meet its obligations hereunder, it will notify Design-Builder in writing at least five (5) days prior to the date payment is due. The notice shall indicate the specific amounts Owner intends to withhold, th e reasons and contractual basis for the withholding, and the specific measures Design -Builder must take to rectify Owner’s concerns. Design-Builder and Owner will attempt to resolve Owner’s concerns prior to the date payment is due. If the parties cannot resolve such concerns, Design-Builder may pursue its rights under the Contract Documents, including those under Article 10 hereof.

6.3.2 Notwithstanding anything to the contrary in the Contract Documents, Owner shall pay Design-Builder all undisputed amounts in an Application for Payment within the times required by the Agreement.

6.4 Design-Builder’s Payment Obligations.

6.4.1 Design-Builder will pay Design Consultants and Subcontractors, in accordance with its contractual obligations to such parties, all the amounts Design -Builder has received from Owner on account of their work. Design-Builder will impose similar requirements on Design Consultants and Subcontractors t o pay those parties with whom they have contracted. Design-Builder will indemnify and defend Owner against any claims for payment and mechanic’s liens as set forth in Section 7.3 hereof.

6.5 Substantial Completion.

6.5.1 Design-Builder shall notify Owner when it believes the Work, or to the extent permitted in the Contract Documents, a portion of the Work, is Substantially Complete. Within five (5) days of Owner’s receipt of Design-Builder’s notice, Owner and Design-Builder will jointly inspect such Work to verify that it is Substantially Complete in accordance with the requirements of the Contract Documents. If such Work is Substantially Complete, Owner shall prepare and issue a Certificate of Substantial Completion that will set forth (i) the date o f Substantial Completion of the Work or portion thereof; (ii) the remaining items of Work that have to be completed before final payment ; (iii) provisions (to the extent not already provided in the Contract Documents) establishing Owner’s and Design-Builder’s responsibility for the Project’s security, maintenance, utilities and insurance pending final payment; and (iv) an acknowledgment that warranties commence to run on the date of Substantial Completion, except as may otherwise be noted in the Certificate of Substantial Completion.

6.5.2 Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work, Owner shall release to Design -Builder all retained amounts relating, as applicable, to the entire Work or completed portion of the Work, less an amount equal to the reasonable value of all remaining or incomplete items of Work as noted in the Certificate of Substantial Completion.

6.5.3 Owner, at its option, may use a portion of the Work which has been determined to be Substantially Complete, provided, however, that (i) a Certificate of Substantial Completion has been issued for the portion of Work addressing the items set forth in Section 6.6.1 above ; (ii) Design- Builder and Owner have obtained the consent of their sureties and insu rers, and to the extent applicable, the appropriate government authorities having jurisdiction over the Project ; and (iii) Owner and Design -Builder agree that Owner’s use or occupancy will not interfere with Design - Builder’s completion of the remaining Work.

6.5.4 On the date that the Owner issues the Certificate of Substantial Completion, the Owner shall provide Design-Builder with the final punch list identifying the remaining minor corrective items to be completed for final completion of the Project.

When the Design-Builder considers the final punch list work to be complete, it shall request Owner to perform a final walk through of the Project to determine if said punch list work is complete and whether Design-Builder has otherwise completed all of its obligations under the Contract Documents.

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6.6 Completion.

The Owner shall record the Notice of Completion when the entire Work including, but not limited to Design-Builder’s closeout document obligations are fully satisfied, Design-Builder’s punch list(s ) and work shall have been completed to the satisfaction of the Owner.

However, the Owner, at its sole option, may accept completion of the Contract and have the Notice of Completion recorded when the entire Work including individual portions of the Work shall have been completed to the satisfaction of the Owner, except for minor corrective items, as distinguished from incomplete items.

Regardless of the cause therefore, the Design-Builder may not maintain any claim or cause of action against the Owner for damages incurred as a result of its failure or inability to complete its Work on the Proj ect in a shorter period than established in the Contract Documents, the parties stipulating that the period set forth in the Contract Documents is a reasonable time within which to perform the work on the Project.

6.7 Final Payment.

6.7.1 After receipt of a Final Application for Payment from Design -Builder, Owner shall make final payment by the time required in the Agreement, provided that Design -Builder has achieved Final Completion.

6.7.2 At the time of submission of its Final Application for Payment, Design-Builder shall provide the following information:

6.7.2.1 An affidavit that there are no claims, obligations or liens outstanding or unsatisfied for labor, services, material, equipment, taxes or other items performed, furnished or incurred for or in connection with the Work which will in any way affect Owner’s interests;

6.7.2.2 A general release executed by Design -Builder waiving, upon receipt of final payment by Design -Builder, all claims, except those claims previously made in writing to Owner and remaining unsettled at the time of final payment;

6.7.2.3 Consent of Design-Builder’s surety, if any, to final payment;

6.7.2.4 All operating manuals, warranties , As -Built drawings , marked up Record documents, and other deliverables required by the Contract Documents; and

6.7.2.5 Certificates of insurance confirming that required coverages will remain in effect consistent with the requirements of the Contract Documents.

6.7.3 Upon making final payment, Owner waives all claims against Design-Builder except claims relating to (i) Design -Builder’s failure to satisfy its payment obligations, if such failure affects Owner’s interests; (ii) Design-Builder’s failure to complete the Work consistent with the Contract Documents, including defects appearing after Substantial Completion ; and (iii) the terms of any special warranties required by the Contract Documents.

6.7.4 Deficiencies in the Work discovered after Substantial Completion, whether or not such deficiencies would have been included on the punch list if discovered earlier, shall be deemed warranty Work. Such deficiencies shall be corrected by Design -Builder under Sections 2.9 and

2.10 herein and shall not be a reason to withhold final payment from Design -Builder, provided, however, that Owner shall be entitled to withhold from the Final Payment the reasonable value of completion of such deficient work until such work is completed.

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Article 7
Indemnification

7.1 Patent and Copyright Infringement.

7.1.1 Design-Builder shall defend any action or proceeding brought against Owner based on any claim that the Work, or any part thereof, or the operation or use of the Work or any part thereof, constitutes infringement of any United States patent or copyright, now or her eafter issued. Owner shall give prompt written notice to Design -Builder of any such action or proceeding and will reasonably provide authority, information and assistance in the defense of same. Design-Builder shall indemnify and hold harmless Owner from and against all damages and costs, including but not limited to attorneys’ fees and expenses awarded against Owner or Design -Builder in any such action or proceeding. Design-Builder agrees to keep Owner informed of all developments in the defense of such actions.

7.1.2 If Owner is enjoined from the operation or use of the Work, or any part thereof, as the result of any patent or copyright suit, claim, or proceeding, Design -Builder shall at its sole expense take reasonable steps to procure the right to operate or use the Work. If Design -Builder cannot so procure such right within a reasonable time, Design -Builder shall promptly, at Design -Builder’s option and at Design-Builder’s expense, (i) modify the Work so as to avoid infringement of any such patent or copyright; or (ii) replace said Work with Work that does not infringe or violate any such patent or copyright.

7.1.3 Sections 7.1.1 and 7.1.2 above shall not be applicable to any suit, claim or proceeding based on infringement or violation of a patent or copyright (i) relating solely to a particular process or product of a particular manufacturer specified by Owner and not offered or recommended by Design-Builder to Owner; or (ii) arising from modifications to the Work by Owner or its agents after acceptance of the Work. If the suit, claim or proceeding is based upon events set forth in the preceding sentence, Owner shall defend, indemnify and hold harmless Design-Builder to the same extent Design-Builder is obligated to defend, indemnify and hold harmle ss Owner in Section 7.1.1 above.

7.1.4 The obligations set forth in this Section 7.1 shall constitute the sole agreement between the parties relating to liability for infringement of violation of any patent or copyright.

7.2 Payment Claim Indemnification.

7.2.1 Provided that Owner is not in breach of its contractual obligation to make payments to Design-Builder for the Work, Design-Builder shall indemnify, defend and hold harmless Owner from any claims or mechanic’s liens brought against Ow ner or against the Project as a result of the failure of Design-Builder, or those for whose acts it is responsible, to pay for any services, materials, labor, equipment, taxes or other items or obligations furnished or incurred for or in connection with the Work. Within three (3) days of receiving written notice from Owner that such a claim or mechanic’s lien has been filed, Design -Builder shall commence to take the steps necessary to discharge said claim or lien, including, if necessary, the furnishing of a mechanic’s lien bond. If Design-Builder fails to do so, Owner will have the right to discharge the claim or lien and hold Design-Builder liable for costs and expenses incurred, including attorneys’ fees.

7.3 Design-Builder’s General Indemnification.

7.3.1 To the furthest extent allowed by law, including California Civil Code section 2782, DESIGN- BUILDER shall indemnify, defend and hold harmless OWNER and each of its officers, officials, employees, agents, and volunteers from any and all claims, demands, actions in law or equity, loss, liability, fines, penalties, forfeitures, interest, costs including legal fees, and damages (whether in contract, tor t, or strict liability, including but not limited to personal injury, death at any time,

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property damage, or loss of any type) arising or alleged to have arisen directly or indirectly out of (1) any voluntary or involuntary act or omission, (2) error, omis sion or negligence, or (3) the performance or non-performance of this Contract . DESIGN-BUILDER'S obligations as set forth in this section shall apply regardless of whether OWNER or any of its officers, officials, employees, agents, or volunteers are pas sively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or the willful misconduct, of OWNER or any of its officers, officials, employees, agents or volunteers.

To the fullest extent allowed by law, and in addition to the express duty to indemnify, DESIGN- BUILDER, whenever there is any causal connection between the DESIGN-BUILDER’s performance or non-performance of the work or services required under this Contract and any claim or loss, injury or damage of any type, DESIGN-BUILDER expressly agrees to undertake a duty to defend OWNER and any of its officers, officials, employees, agents, or volunteers, as a separate duty, independent of and broader that the duty to indemnify. The duty to defend as herein agreed to by DESIGN-BUILDER expressly includes all costs of litigation, attorneys fees, settlement costs and expenses in connection with claims or litigation, whether or not the claims are valid, false or groundless, as long as the claims could be in any manner be causally connected to DESIGN- BUILDER as reasonably determined by OWNER.

Upon the tender by OWNER to DESIGN-BUILDER, DESIGN-BUILDER shall be bound and obligated to assume the defense of OWNER and any of its officers, officials, employees, agents, or volunteers, including the a duty to settle and otherwise pursue settlement negotiations, and shall pay, liquidate, discharge and satisfy any and all settlements, judgments, awards, or expenses resulting from or arising out of the claims without reimbursement from OWNER or any of its officers, officials, employees, agents, or volunteers.

It is further understood and agreed by DESIGN-BUILDER that if OWNER tenders a defense of a claim on behalf of OWNER or any of its officers, officials, employees, agents, or volunteers and DESIGN-BUILDER fails, refuses or neglects to assume the defense thereof, OWNER and its officers, officials, employees, agents, or volunteers may agree to compromise and settle or defend any such cla im or action and DESIGN-BUILDER shall be bound and obligated to reimburse OWNER and its officers, officials, employees, agents, or volunteers for the amounts expended by each in defending or settling such claim, or in the amount required to pay any judgmen t rendered therein.

The defense and indemnity obligations set forth above shall be direct obligations and shall be separate from and shall not be limited in any manner by any insurance procured in accordance with the insurance requirements set forth in t his Contract. In addition, such obligations remain in force regardless of whether OWNER provided approval for, or did not review or object to, any insurance DESIGN-BUILDER may have procured in a accordance with the insurance requirements set forth in this Contract. The defense and indemnity obligations shall arise at such time that any claim is made, or loss, injury or damage of any type has been incurred by OWNER, and the entry of judgment, arbitration, or litigation of any claim shall not be a condition p recedent to these obligations.

The defense and indemnity obligations set forth in this section shall survive termination or expiration of this Contract.

If DESIGN-BUILDER should subcontract all or any portion of the work to be performed under this Contract, DESIGN-BUILDER shall require each subcontractor to Indemnify, hold harmless and defend OWNER and each of its officers, officials, employees, agents and volunteers in accordance with the terms as set forth above.

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Article 8
Time

8.1 Obligation to Achieve the Contract Times.

8.1.1 Design-Builder agrees that it will commence performance of the Work and achieve the Contract Time(s) in accordance with Article 5 of the Agreement.

8.2 Delays to the Work.

8.2.1 If Design-Builder is delayed on the critical path in the performance of the Work due to acts, omissions, conditions, events, or circumstances beyond its control and due to no fault of its own or those for whom Design -Builder is responsible, the Contract Time(s) for performance shall be reasonably extended by Change Order. By way of example, events that will entitle Design -Builder to an extension of the Contract Time(s) include acts or omissions of Owner or anyone under Owner’s control (including separate contractors), changes in the Work, Differing S ite Conditions, Hazardous Conditions, and Force Majeure Events.

8.2.2 In addition to Design-Builder’s right to a time extension for those events set forth in Section

8.2.1 above, Design-Builder shall also be entitled to an appropriate adjustment of the Contract Price provided, however, that the Contract Price shall not be adjusted for Force Majeure Events unless otherwise provided in the Agreement.

Article 9
Changes to the Contract Price and Time

9.1 Change Orders.

9.1.1 A Change Order is a written instrument issued after execution of the Agreement signed by Owner and Design-Builder, stating their agreement upon all of the following:

9.1.1.1 The scope of the change in the Work;

9.1.1.2 The amount of the adjustment to the Contract Price; and

9.1.1.3 The extent of the adjustment to the Contract Time(s).

9.1.2 All changes in the Work authorized by applicable Change Order shall be performed under the applicable conditions of the Contract Documents. Owner and Design-Builder shall negotiate in good faith and as expeditiously as possible the appropriate adjustments for such changes.

9.1.3 If Owner requests a proposal for a change in the Work from Design -Builder and subsequently elects not to proceed with the change, a Change Order shall be issued to reimburse Design-Builder for reasonable costs incurred for estimating services, design services and services involved in the preparation of proposed revisions to the Contract Documents.

9.1.4 Approval of any change order by the Owner is subject to Resolution No. 2017 -158 as adopted by the City Council. The approval authori ty defined in Resolution No. 2017 -158 shall be based on the current awarded contract price for each Phase as approved by City Council.

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9.2 Work Change Directives.

9.2.1 A Work Change Directive is a written ord er prepared and signed by Owner directing a change in the Work prior to agreement on an adjustment in the Contract Price and/or the Contract Time(s).

9.2.2 Owner and Design -Builder shall negotiate in good faith and as expeditiously as possible the appropriate adjustments for the Work Change Directive. Upon reaching an agreement, the parties shall prepare and execute an appropriate Change Order reflecting the terms of the agreement.

9.3 Minor Changes in the Work.

9.3.1 Minor changes in the Work do not involve an adjustment in the Contract Price and/or Contract Time(s) and do not materially and adversely affect the Work, including the design, quality, performance and workmanship required by the Contract Documents. Design-Builder may make minor changes in the Work consistent with the intent of the Contract Documents, provided, however, that Design-Builder shall promptly inform Owner, in writing, of any such ch anges and record such changes on the documents maintained by Design-Builder.

9.4 Contract Price Adjustments.

9.4.1 The increase or decrease in Contract Price resulting from a change in the Work shall be determined by one or more of the following methods:

9.4.1.1 Unit prices set forth in the Agreement or as subsequently agreed to between the parties;

9.4.1.2 A mutually accepted lump sum, properly itemized and supported by sufficient substantiating data to permit evaluation by Owner;

9.4.1.3 Costs, fees and any other markups set forth in the Agreement; or

9.4.1.4 If an increase or decrease cannot be agreed to as set forth in items 9.4.1.1 through

9.4.1.3 above and Owner issues a Work Change Directive, the cost of the change of the Work shall be determined by the reasonable expense and savings in the performance of the Work resulting from the change, including a reasonable overhead and profit, as may be set forth in the Agreement.

9.4.2 If unit prices are set forth in the Contract Documents or are subsequently agreed to by the parties, but application of such unit prices will cause substantial inequity to Owner or Design-Builder because of differences in the character or quantity of such unit items as originally contemplated, such unit prices shall be equitably adjusted.

9.4.3 If Owner and Design -Builder disagree upon whether Design -Builder is entitled to be paid for any services required by Owner, or if there are any other disagreements over the scope of Work or proposed changes to the Work, Owner and Design -Builder shall resolve the disagreement pursuant to Article 10 hereof. As part of the negotiation process, Design-Builder shall furnish Owner with a good faith estimate of the costs to perform the disputed services in accordance with Owner’s interpretations. If the parties are unable to agree and Owner expects Design-Builder to perform the services in accordance with Owner’s interp retations, Design-Builder shall proceed to perform the disputed services, conditioned upon Owner issuing a written order to Design -Builder (i) directing Design-Builder to proceed; and (ii) specifying Owner’s interpretation of the services that are to be performed. If this occurs, Design-Builder shall be entitled to submit in its Applications for Payment an amount equal to fifty percent (50%) of its reasonable estimated direct cost to perform the services, and Owner agrees to pay such amounts, with the expre ss understanding that (i) such payment by Owner does not prejudice Owner’s right to argue that it has no responsibility to pay for

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such services ; and (ii) receipt of such payment by Design -Builder does not prejudice Design - Builder’s right to seek full paym ent of the disputed services if Owner’s order is deemed to be a change to the Work.

9.5 Emergencies.

9.5.1 In any emergency affecting the safety of persons and/or property, Design-Builder shall act, at its discretion, to prevent threatened damage, injury or loss. Any change in the Contract Price and/or Contract Time(s) on account of emergency work shall be dete rmined as provided in this Article 9.

Article 10
Contract Adjustments and Disputes

10.1 Requests for Contract Adjustments and Relief.

10.1.1 If either Design -Builder or Owner believes that it is entitled to relief against the other for any event arising out of or related to the Work or Project, such party shall provide written notice to the other party of the basis for its claim for relief. Such notice shall, if possible, be made prior to incurring any cost or expense and in accordance with any sp ecific notice requirements contained in applicable sections of these General Conditions of Contract. In the absence of any specific notice requirement, written notice shall be given within a reasonable time, not to exceed twenty -one (21) days, after the oc currence giving rise to the claim for relief or after the claiming party reasonably should have recognized the event or condition giving rise to the request, whichever is later. The claimant shall provide more complete information with respect to the claim within fourteen (14) days of the initial notice. The more complete information shall include sufficient information to advise the other party of the circumstances giving rise to the claim for relief, the specific contractual adjustment or relief requested and the basis of such request.

10.2 Dispute Avoidance and Resolution.

10.2.1 The parties are fully committed to working with each other throughout the Project and agree to communicate regularly with each other at all times so as to avoid or minimize disp utes or disagreements. If disputes or disagreements do arise, Design -Builder and Owner each commit to resolving such disputes or disagreements in an amicable, professional and expeditious manner so as to avoid unnecessary losses, delays and disruptions to the Work.

10.2.2 Claims for Additional Time.

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Extension of time, when granted, will be based upon the effect of delays to the Project as a whole and will not be granted f or noncontrolling delays to minor included portions of the Work unless it can be shown that such delays did, in fact, delay the progress of the Project as a whole. The Design-Builder shall not be entitled to damages or additional payment due to these dela ys except to the extent the delay exceeds the original Contract duration for Substantial Completion, and any extension hereunder other than any extension granted due to Owner caused delay, when Owner is responsible for the delay, the delay is unreasonable under the circumstances involved, not within the contemplation of the parties, and such delay causes actual damage to the Design-Builder. The Owner shall not be entitled to liquidated damages for Design-Builder delays unless the delay by Design-Builder exceeds the original Contract duration for Substantial Completion and any extension of time to which the Design-Builder is entitled to under the Specifications.

If delays are caused by unforeseen events beyond the control of the Design-Builder, such delays will entitle the Design-Builder to an extension of time as provided herein. War, governmental regulations, priorities, labor disputes, strikes, fires, floods, adverse weather necessitating cessation of Work, oth er similar action of the elements, inability to obtain materials, equipment or labor because of Federal Government restrictions arising out of the National Defense or War Program, required Extra Work, action or inaction by the Owner, or other specific reas ons as may be further described in the Specifications may constitute such a delay.

If the Design-Builder is delayed by the failure of the Owner to furnish necessary rights of way or materials agreed to be furnished by it, or by failure to supply necessary plans or instructions concerning the Work, after written request therefore, the Design-Builder shall be entitled to an extension of time as provided herein.

10.2.3 Claims and Disputes.

10.2.3.1 General.

The Design-Builder and Owner shall make good faith efforts to resolve any and all Claims and disputes in a timely manner that may from time to time arise during Design-Builder's performance of the Work. Claims, including those alleging an error or omission shall be directed to the Owner's Construction Manager for action as provided in the “Resolution of Claims and Disputes,” below.

It shall be a condition precedent to Claims review by the Public Works Director or his or her designated representative and to mediation or litigation between the Design-Builder and Owner as to all such matters arising prior to the date final payment is due, that a formal decision on all Design- Builder Claims be made by the Construction Manager. It shall be a condition precedent that the Design-Builder appeal any disputed Claim to the Public Works Director prior to initiating mediation or litigation. It shall be a condition precedent that the Design-Builder mediate any disputed Claim through non -binding mediation as provided herein, prior to init iating litigation. Unless mutually waived in writing by both parties, these provisions apply regardless of 1) whether such matters relate to execution and progress of the Work, or 2) the extent to which the Work has been completed.

Notice of Intent to Cl aim by Design-Builder must be made within 72 hours after occurrence of the event giving rise to such Claim, or within 72 hours after the claimant first discovers or should have reasonably discovered the condition giving rise to the Claim, whichever is later. Notice of Intent to Claim and Claims must be made by written notice.

At all times during the course of the dispute resolution process pursuant to the “Resolution of Claims and Disputes,” the Design-Builder shall continue with the Work as directed, in a diligent manner and without delay, or shall conform to the Owner's decision or order, and shall be governed by all applicable provisions of the Contract. Records of the Work shall be kept in sufficient detail to enable payment in accordance with applicable provisions in the Contract if this should become necessary.

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The making of final payment shall not constitute a waiver of Claims by the Owner including, but not limited to, the following:
(i) liens, Claims, security interests or encumbrances arising out of the Contract and unsettled; (ii) failure of the Work to comply with the requirements of the Contract Documents; or (iii) terms of special warranties required by the Contract Documents.

Design-Builder shall promptly provide an unconditional waiver and re lease upon final payment in accordance with California Civil Code section 3262 and these Contract Documents. Except to the extent of any Claim arising from City’s sole or active negligence, and except to the extent Design- Builder expressly describes any other disputed Claims for which prior written notice has been given the City and lists the respective dollar amounts in an unconditional waiver and release, the making of final payment shall constitute a waiver of Claims by the Design-Builder pertaining to any and all costs, expenses, changes or other Claims related to Contract Price or Contract Time, including any synergistic effects attributed to multiple Change Orders. In the event of any disputed Claims between the City and Design-Builder, the City may withhold from the final payment an amount not to exceed 150% of the disputed amount.

10.2.3.2 Resolution of Claims and Disputes.
(1) Decision of Construction Manager:
a. If the Design-Builder believes any Work or demand to be outside the requirements of the Contract or believes that omissions, conflicts, errors, or discrepancies will cause or have caused the Design-Builder additional costs or delays in the performance of the Work, he/she shall file a written Notice of Intent to Claim with the Construction Manager within 72 hours after occurrence of the event giving rise to the Claim, or within 72 hours after the Design-Builder or its subcontractor first discovers or should have reasonably disco vered the condition giving rise to the Claim, whichever is later. If a written Notice of Intent to Claim is not submitted within this time period, the Design-Builder shall waive his or her right to further Claims on the issue and any synergistic effects related to such Claim.

1. Within 10 working days following the Notice of Intent to Claim, the Design-Builder shall provide a Notice of Claim with complete supporting data for the Claim of the cost and delay related to such omissions, conflicts, errors, discrepancies, or Work alleged to be outside the requirements of the Contract. Notwithstanding the foregoing, if all supporting data cannot reasonably be made available within said 10 working days, then Design-Builder shall provide all then available supporting data along with a request for additional time, stating a time certain, to obtain the remainder of supporting data along with both an explanation of the nature of such supporting data and the reason why additional time is necessary to provide same to the Construction Manager.

2. If a written Notice of Claim, along with complete supporting data or all then available supporting data and reasonable request for additional time with explanation as required above, is not submitted within 10 working days followi ng the Notice of Intent to Claim, the Design-Builder shall waive his or her right to make further Claims on the issue and any synergistic effects related to such Claim.

3. The Design-Builder’s request for additional time to provide the remainder of its sup porting data shall be deemed acceptable to Owner unless the Construction Manager rejects in writing Design-Builder’s request within 5 working days from receipt of Design-Builder’s request. If the Construction Manager rejects Design-Builder’s request for a dditional time, then Design-Builder shall either provide complete supporting data immediately upon receipt of such rejection or within any time acceptable to the Construction Manager as stated in his or her written rejection, whichever is later (unless oth erwise mutually agreed upon in writing by Design-Builder and Construction Manager).

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b. The Construction Manager will review any and all Claims and take one or more of the following preliminary actions in writing within 10 working days of receipt of written Notice of Claim and complete supporting data: 1) request additional supporting data from the Design-Builder; 2) reject the Claim in whole, or in part, stating reasons for rejection; or, 3) recommend approval of the Claim. In the event the Construction Ma nager has not taken any preliminary action within 10 working days, then the Claim is deemed rejected unless the Design-Builder and the Construction Manager mutually agree in writing to extend the time period for taking preliminary action. The Construction Manager will make his or her decision on the basis of the pertinent Contract provisions, together with the facts and circumstances involved in the dispute. The Construction Manager may also, but is not obligated to, notify the surety on Design-Builder's performance bond of the nature and amount of the Claim.
c. If the Construction Manager requests additional supporting data from the Design-Builder, the Design-Builder shall supply the additional information to the Construction Manager within 10 working days unless the Design-Builder and the Construction Manager mutually agree in writing to extend the time period for supplying such information. The Construction Manager will have 10 working days from the receipt of additional supporting data to provide a written decision unless the Design-Builder and the Construction Manager mutually agree in writing to extend the time period for providing such decision. In the event the Construction Manager has not provided a written decision within 10 working days, or any extended time period agreed to in writing by Construction Manager and Design-Builder, then the Claim is deemed rejected and this shall constitute Design- Builder’s automatic request for an appeal meeting with the Public Works Director unless the Design-Builder submits a written withdrawal of its Claim. d. If the Claim is rejected in whole or in part by a written decision of the Construction Manager, the Design-Builder shall notify the Construction Manager in writing within 10 working days after receiving the written decision that either: 1) the decision is accepted, and the Claim is amended; accordingly, or 2) the Design-Builder requests an appeal meeting with the Public Works Director.

Failure to timely request an appeal meeting with the Public Works Director following receipt of the written decision constitutes acceptance by the Design-Builder of the Construction Manager's decision. If the Owner and Design-Builder are able to resolve their dispute, the Owner will promptly process any required Contract changes.
(2) Decision of Public Works Director
a. The Public Works Director, or his or her designee, shall meet with the Design-Builder and the Construction Manager within 15 working days (unless necessary to accommodate the Public Works Director’s schedule, or that of his or her designee, but in no event longer than 20 working days; or unless otherwise mutually agreed upon in writing by Design-Builder and Construction Manager) from the Design-Builder's timely submittal of his or her request, or any automatic request hereunder, for a meeting. The Design-Builder may make a presentation in support of his or her Claim. No attorney may take part in the presentation or defense of the Claim in the meeting with the Public Works Director, or his or her designee. Nothing herein shall prevent an attorney from providing advice to a party either before or after the meeting. In the event the meeting with the Public Works Director, or his or her designee, has not been conducted within the time provided herein or as agreed upon in writing by Design-Builder and Construction Manager, then the Claim is deemed rejected and, unless the Design-Builder submits a written withdrawal of its Claim, the parties shall proceed to mediation as provided herein.

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b. Within 10 working days (unless otherwise mutually agreed upon in writing by Design- Builder and Construction Manager) from the meeting with the Design-Builder and the Construction Manager, the Public Works Director, or his or her designee, shall render a written decision and a copy thereof shall be personally delivered, or mailed return receipt requested, to the Design- Builder. In the event the Public Works Director, or his or her designee, has not provided a written decision within 10 working days, or any extended time period agreed to in writing by Construction Manager and Design-Builder, then the Claim is deemed rejected and, unless the Design-Builder submits a written withdrawal of its Claim, the parties shall proceed to mediation as provided herein. c. If the Claim is rejected in whole or in part by a written decision of the Public Works Director, or his or her designee, the Design-Builder shall notify the Construction Manager in writing within 10 working days after receiving the written decision that either: 1) the decision is accepted and the Claim is amended accordingly; or 2) the Design-Builder rejects the decision of the Public Works Director, or his or her designee. Failure to timely notify the Construction Manager of either following receipt of the Public Works Director’s written decision, or that of his or her designee, shall constitute acceptance by the Design-Builder of the Public Work s Director’s decision, or that of his or her designee. If the Owner and Design-Builder are able to resolve their dispute, the Owner will promptly process any required Contract changes. If the Design-Builder rejects the written decision of the Public Works Director or his or her designee, the parties shall proceed to mediation as provided herein.
(3) Mediation
a. In the event that the Claim is not resolved after exhausting all aforementioned administrative measures, then the Design-Builder must participate in non -binding mediation with City before the Design-Builder may initiate litigation. b. The parties shall mutually select, in writing, a mediator with at least 5 years’ experience in the construction industry. In the event that the parties are unable to agree on a mediator within 15 working days of Design-Builder’s rejection of the decision of the Public Works Director or his or her designee, the City may select the mediator. Mediation, including at least one session requiring physical attendance by all parties, shall begin within 15 working days of selection of the mediator, unless necessary to accommodate the mediator’s schedule. The parties shall share the mediator’s fees and any administrative costs of mediation equally. The mediation shall be held in Fresno, California, unless another location is mutually agreed upon by the parties in writing. In the event the parties are unable to reach a mutually acceptable resolution of the Claim within 20 working days of the start of mediation, unless extended or otherwise terminated by written mutual agreement of the parties, mediation shall terminate.
c. If the Owner and Design-Builder are able to resolve their dispute the Owner will promptly process any required Contract changes. Any settlement reached in principle must be in writing and is subject to approval by the City Manager or City Council consistent with City laws and polic ies.

Should the dispute remain unresolved, the parties may resort to other dispute resolution procedures.
d. All statements made during the mediation shall be confidential and subject to sections 703.5, 1119 and 1152 of the California Evidence Code.
(4) Government Claims Act. Nothing herein is intended by the parties to waive any requirements of the Design-Builder to comply with the Government Claims Act including, without limitation, California Government Code section 905; and Design-Builder agrees that it shall remain responsible for complying with said section regarding any Claim. The parties agree, however, that the timeline for the Design-Builder to file a claim under the Government Claims Act is tolled until exhaustion of the Design-Builder of its administrative remedies hereunder (i.e., either upon termination of mediation, or upon written mutual waiver of mediation by the parties, whichever first occurs).

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(5) Litigation
a. If the Design-Builder continues to dispute the Work demanded of him/her after exhausting all aforementioned administrative measures, the Design-Builder may institute legal proceedings, but only after final acceptance of the Project by the Owner.

Unless specifically waived by the Owner, in writing, the submission of a disp ute for mediation in accordance with the above provisions shall be a condition precedent to the Design-Builder's right to initiate a suit, action or other proceeding against the Owner for damages. b. In the event Owner initiates suit, action, or other proceeding against the Design-Builder for damages, the prevailing party in such suit or action shall be entitled to recover reasonable attorney's fees and costs of suit.
c. In the event Design-Builder initiates suit, action, or other proceeding against the Own er, the Owner shall be entitled to recover reasonable attorneys' fees and engineering defense costs if the Design-Builder is not awarded, by the arbitrator or court, a dollar amount greater than 50 percent of the Design-Builder's original Claim for damages. d. The Design-Builder shall include, or cause to be included, a requirement in all subcontracts of all tiers of Subcontractors for this Project that whenever the Subcontractor disputes the Work demanded of him/her, he/she shall cooperate and comply with the Claims and Dispute procedures contained herein including, without limitation, exhausting all administrative measures prior to instituting legal proceedings, and instituting legal proceedings only after final acceptance of the Project by the Owner.

10.3 Mediator
The Owner shall be responsible for fifty percent (50%) of the Mediator costs. If needed, the owner’s share of the cost shall be added through a contract change order. The dollar amount listed in the bid item is an estimate only and will be included in each Bidder’s Proposal. Invoices of the Mediator shall be paid by the Design-Builder only upon direct written authorization from the Owner.

Final payment to Design-Builder will be based on fifty percent (50%) of the total amount of Owner approved invoices of the Mediator actually billed to Owner by Design-Builder. The Design-Builder shall include the specified lump sum bid item on the Bid Proposal for payment of Owner’s share of costs for the Mediator. Payment will be made under this bid item by issuance of a Change Order approved by the Owner and charged against this lump sum allocation.

This bid item may be increased, decreased, or deleted in its entirety and is not to b e construed as additional money owed to the Design-Builder. If no Change Order is issued against this bid item, the Contract Price shall be reduced by the full amount of the bid item included in the Bid Proposal for the Mediator.

The Design-Builder shall have no claim for anticipated overhead or profit should the Owner fail to issue any Change Orders against this bid item.

10.4 Duty to Continue Performance.

10..1 Unless provided to the contrary in the Contract Documents, Design -Builder shall continue to perform the Work and Owner shall continue to satisfy its payment obligations for undisputed amounts to Design-Builder as well as any further amounts pursuant to Section 9.4.3 , pending the final resolution of any dispute or disagreement between Design-Builder and Owner.

10.5 CONSEQUENTIAL DAMAGES.

10.5.1 NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY (EXCEPT AS SET

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FORTH IN SECTION 10.5.2 BELOW), NEITHER DESIGN -BUILDER NOR OWNER SHALL BE

LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL LOSSES OR DAMAGES, WHETHER

ARISING IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY

OR OTHERWISE, INCLUDING BUT NOT LIMITED TO LOSSES OF USE, PROFITS, BUSINESS, REPUTATION OR FINANCING.

10.7.2 The consequential damages limitation set forth in Section 10.5 .1 above is not intended to affect the payment of liquidated damages or lost early completion bonus, if any, set forth in Article 5 of the Agreement, which both parties recognize has been established, in part, to reimburse Owner or reward Design-Builder for some damages that might otherwise be deemed to be consequential.

Article 11
Stop Work and Termination

11.1 Owner’s Right to Stop Work.

11.1.1 Owner may, without cause and for its convenience, order Design-Builder in writing to stop and suspend the Work.

11.1.2 Design-Builder is entitled to seek an adjustment of the Contract Price and/or Contract Time(s) if its cost or time to perform the Work has been adversely impacted by any suspension o r stoppage of the Work by Owner.

11.2 Owner’s Right to Perform and Terminate for Cause.

11.2.1 If Design-Builder persistently fails to (i) provide a sufficient number of skilled workers, (ii) supply the materials required by the Contract Documents, (iii) comply with applicable Legal Requirements, (iv) timely pay, without cause, Design Consultants or Subcontractors, (v) prosecute the Work with promptness and diligence to ensure that the Work is completed by the Contract Time(s), as such times may be adjusted, or (vi) perform material obligations under the Contract Documents, then Owner, in addition to any other rights and remedies provided in the Contract Documents or by law, shall have the rights set forth in Sections 11.2.2 and 11.2.3 below.

11.2.2 Upon the occurrence of an event set forth in Section 11.2.1 above, Owner may prov ide written notice to Design-Builder that it intends to terminate the Agreement unless the problem cited is cured, or commenced to be cured, within seven (7) days of Design -Builder’s receipt of such notice. If Design-Builder fails to cure, or reasonably commence to cure, such problem, then Owner may give a second written notice to Design -Builder of its intent to terminate within an additional seven (7) day period. If Design-Builder, within such second seven (7) day period, fails to cure, or reasonably commence to cure, such problem, then Owner may declare the Agreement terminated for default by providing written notice to Design-Builder of such declaration.

11.2.3 Upon declaring the Agreement terminated pursuant to Section 11.2.2 above, Owner may enter upon the premises and take possession, for the purpose of completing the Work, of all materials, equipment, scaffolds, tools, appliances and other items thereon, which have been purchased or provided for the performance of the Work, all of which Design -Builder hereby transfers, assigns and sets over to Owner for such purpose, and to employ any person or persons to complete the Work and provide all of the required labor, services, materials, equipment and other items. In the event of such termination, Design -Builder shall not be entitled to receive any further payments under the Contract Documents until the Work shall be finally completed in accordance with the Contract Documents. At such time, if the unpaid balance of the Contract Price exceeds the cost and expense incurred by Owner in completing the Work, such excess shall be paid by Owner to Design -Builder. Notwithstanding the preceding sentence, if the Agreement establishes a

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Guaranteed Maximum Price, Design -Builder will only be entitled to be paid for Work pe rformed prior to its default. If Owner’s cost and expense of completing the Work exceeds the unpaid balance of the Contract Price, then Design-Builder shall be obligated to pay the difference to Owner. Such costs and expense shall include not only the cost of completing the Work, but also losses, damages, costs and expense, including attorneys’ fees and expenses, incurred by Owner in connection with the reprocurement and defense of claims arising from Design -Builder’s default, subject to the waiver of consequential damages set forth in Section 10.5 hereof.

11.3 Termination for Convenience.

11.3.1 Upon ten (10) days’ written notice to Design -Builder, Owner may, for its convenience and without cause, elect to terminate this Agreement. In such event, Owner shall pay Design -Builder for the following:

11.3.1.1 All Work executed and for proven loss, cost or expense in connection with the Work;

11.3.1.2 The reasonable costs and expenses attributable to such termination, including demobilization costs and amounts due in settlement of terminated contracts with Subcontractors and Design Consultants; and

11.3.1.3 The amount set forth in Article 8 of the Agreement.

11.3.2 If Owner terminates this Agreement pursuant to Section 11.6.1 above and proceeds to design and construct the Project through its employees, agents or third parties, Owner’s rights to use the Work Product shall be as set forth in Section 4.3 of the Agreement. Such rights may not be transferred or assigned to others without Design -Builder’s express written consent and such third parties’ agreement to the terms of Article 4 of the Agreement.

Article 12
Electronic Data

12.1 Electronic Data.

12.1.1 The parties recognize that Contract Documents, including drawings, specifications and three-dimensional modeling (such as Building Information Models) and other Work Product may be transmitted among Owner, Design-Builder and others in electronic media as an alternative to paper hard copies (collectively “Electronic Data”).

12.2 Transmission of Electronic Data.

12.2.1 Owner and Design -Builder shall agree upon the software and the format for the transmission of Electronic Data. Each party shall be responsible for securing the legal rights to access the agreed-upon format, including, if necessary, obtaining appropriately licensed copies of the applicable software or electronic program to display, interpret and/or generate the Electronic Data.

12.2.2 Neither party makes any representations or warranties to the other with res pect to the functionality of the software or computer program associated with the electronic transmission of Work Product. Unless specifically set forth in the Agreement, ownership of the Electronic Data does not include ownership of the software or computer program with which it is associated, transmitted, generated or interpreted.

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12.2.3 By transmitting Work Product in electronic form, the transmitting party does not transfer or assign its rights in the Work Product. The rights in the Electronic Data shall be as set forth in Article 4 of the Agreement. Under no circumstances shall the transfer of ownership of Electronic Data be deemed to be a sale by the transmitting party of tangible goods.

12.3 Electronic Data Protocol.

12.3.1 The parties acknowledge that Electronic Data may be altered or corrupted, intentionally or otherwise, due to occurrences beyond their reasonable control or knowledge, including but not limited to compatibility issues with user software, manipulation by the recipient, errors in transcription or transmission, machine error, environmental factors, and operator error.

Consequently, the parties understand that there is some level of increased risk in the use of Electronic Data for the communication of design and construction information and, in consideration of this, agree, and shall require their independent contractors, Subcontractors and Design Consultants to agree, to the following protocols, terms and conditions set forth in this Section 12.3.

12.3.2 Electronic Data will be transm itted in the format agreed upon in Section 12.2.1 above, including file conventions and document properties, unless prior arrangements are made in advance in writing.

12.3.3 The Electronic Data represents the information at a particular point in time and is subject to change. Therefore, the parties shall agree upon protocols for notification by the author to the recipient of any changes which may thereafter be made to the Electronic Data, which protocol shall also address the duty, if any, to update such information, data or other information contained in the electronic media if such information changes prior to Final Completion of the Project.

12.3.4 The transmitting party specifically disclaims all warranties, expressed or implied, including, but not lim ited to, implied warranties of merchantability and fitness for a particular purpose, with respect to the media transmitting the Electronic Data. However, transmission of the Electronic Data via electronic means shall not invalidate or negate any duties pur suant to the applicable standard of care with respect to the creation of the Electronic Data, unless such data is materially changed or altered after it is transmitted to the receiving party, and the transmitting party did not participate in such change or alteration.

Article 13
Miscellaneous

13.1 Confidential Information.

13.1.1 Confidential Information is defined as information which is determined by the transmitting party to be of a confidential or pro prietary nature and: (i ) the transmitting party identifies as either confidential or proprietary; (ii ) the transmitting party takes steps to maintain the confidential or proprietary n ature of the information; and (iii ) the document is not otherwise available in or considered to be in the public domain. The receiving party agrees to maintain the confidentiality of the Confidential Information and agrees to use the Confidential Information solely in connection with the Project.

13.2 Assignment.

13.2.1 Neither Design-Builder nor Owner sh all, without the written consent of the other assign, transfer or sublet any portion or part of the Work or the obligations required by the Contract Documents.

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13.3 Successorship.

13.3.1 Design-Builder and Owner intend that the provisions of the Contract Documents are binding upon the parties, their employees, agents, heirs, successors and assigns.

13.4 Governing Law.

13.4.1 The Agreement and all Contract Documents shall be governed by the laws of the location of the Project, without giving effect to its conflict of law principles.

13.5 Severability.

13.5.1 If any provision or any part of a provision of the Contract Documents shall be finally determined to be superseded, invalid, illegal, o r otherwise unenforceable pursuant to any applicable Legal Requirements, such determination shall not impair or otherwise affect the validity, legality, or enforceability of the remaining provision or parts of the provision of the Contract Documents, which shall remain in full force and effect as if the unenforceable provision or part were deleted.

13.6 No Waiver.

13.6.1 The failure of either Design -Builder or Owner to insist, in any one or more instances, on the performance of any of the obligations required by the other under the Contract Documents shall not be construed as a waiver or relinquishment of such obligation or right with respect to future performance.

13.7 Headings.

13.7.1 The headings used in these General Conditions of Contract, or any other Contract Document, are for ease of reference only and shall not in any way be construed to limit or alter the meaning of any provision.

13.8 Notice.

13.8.1 Whenever the Contract Documents require that notice be provided to the other party, notice will be deemed to have been validly given (i) if delivered in person to the individual intended to receive such notice; (ii) four (4) days after being sent by registered or certified mail, postage prepaid to the address indicated in the Agreement ; (iii) if transmitted by facsimile, by the time stated in a machine-generated confirmation that notice was received at the facsimile number of the intended recipient; or (iv) by electronic mail , by the time frame stated in the email-generated confirmation that notice was received by the email of the intended recipient.

13.9 Amendments.

13.9.1 The Contract Documents may not be changed, altered, or amended in any way except in writing signed by a duly authorized representative of each party.

13.10 Attorney’s Fees.

13.10.1 If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant of the Contract Documents, the prevailing party in such proceeding shall be entitled to recover from the other party its reasonable attorney’s fees and legal expenses.

13.11 Interpretation.

13.11.1 The parties acknowledge that this Contract in its final form is the result of the combined efforts of the parties and that, should any provision of this Contr act be found to be

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ambiguous in any way, such ambiguity shall not be resolved by construing this Contract in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning

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