Agenda packet — Oakley City Council, September 23, 2025 (part 2 of 2)

SECTION D - QUALIFICATIONS OF TEAM
WOODLAND CONSTRUCTION | SIEGEL & STRAIN ARCHITECTS 26

PROPOSED INTERIORS

MARINA BRANCH LIBRARY

SAN MATEO, CALIFORNIA
This project began as a technical problem—the 1960s-era branch library, located on Seal Slough, was experiencing significant structural settlement.

Siegel & Strain was hired to conduct a building condition assessment, and once a structural solution was identified, the design team and the City realized the opportunity to create a more community-oriented, 21st century library for the neighborhood. Our scope was expanded to include programing, full architectural services and interior design. Working with the Deputy City Librarian and branch staff, the collection was revised to align with current library practices, and the space was re-designed to serve the needs of the local community including a dedicated teen space, increased area for casual browsing and gathering, and a flexible children’s area with expanded capacity for story time and other public presentations.

CONNECTION TO NATURE: The original mid-century design capitalizes on the waterfront views and natural daylight. An existing non-conforming deck was demolished, and a new deck, with an accessible path from both the interior and exterior, was provided to maintain an outdoor space for gathering and meet the programmatic needs of the library. Invasive plants along the slough were replaced with native, drought tolerant landscaping.

TEAM
Marjorie Smith, S&S Principal
Colin Searles, S&S Project Manager
CLIENT
City of San Mateo
COST
$5.4 million
SIZE
5,500 sf on 0.6-acre site
STATUS
Started construction June 2025

SUSTAINABILITY FEATURES
- Conversion to all-electric mechanical and
plumbing systems
- Aerosol applied air-sealing for reduced
energy consumption
- Drought tolerant and low water consumption
landscaping
- Above-deck roof insulation decreasing
overall energy demands
- Low VOC and high recycled content finishes
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SECTION D - QUALIFICATIONS OF TEAM
27 OAKLEY LIBRARY & COMMUNITY CENTER
SUSI MARZUOLA, AIA, LEED AP BD+C

PRINCIPAL IN CHARGE
Susi focuses her considerable energy on the design of projects that are rooted in place and community, marry vision to design solutions, capture imagination, and achieve the highest levels of performance. Susi enjoys collaborating on master planning efforts, mission-based projects, educational and community-serving facilities which engage her participatory design and creative problem-solving skills. She has taught at UC Berkeley, and has been active in community service for local public and non-profit organizations. Susi particularly enjoys collaborating with clients and stakeholder groups to understand their vision and create design solutions that deeply resonate with their communities.

SELECT PROJECT EXPERIENCE
Brisbane Public Library, Brisbane, CA
Design and construction of a new 7,600 sf library located in the heart of the City’s commercial district. The project includes flexible community spaces, maker space, an outdoor patio, and a showcase of sustainable water reuse practices. LEED Silver equivalent project.

Yountville Town Center & Library, Town of Yountville, CA Master planning and design of a new facility with a branch library, multi-purpose room, teen center, meeting and program spaces. Emissions-reducing strategies include optimization of daylighting, natural ventilation, photovoltaic array, and ground-coupled heat pumps for heating and cooling. LEED Platinum equivalent project.

Portola Valley Town Center, Portola Valley, CA
Master planning through a public participatory process, workshops focusing on the program, opportunities and constraints, and sustainable design goals on this 11-acre parcel in 22,000 sf of new buildings including a Library, Town Hall, and Community Hall. LEED Platinum certified.

Mill Valley Public Library, Mill Valley, CA (while at TGH Architects) Renovation and upgrades to the existing Mill Valley Public Library and an addition which included a new children’s reading room, a fiction stacks area, and a community room.

Berkeley Civic Center Vision Plan and Design Concept, Berkeley, CA A master planning effort to advance a community vision, design concepts and implementation plan for Berkeley’s Civic Center area, transforming it into an urban oasis and a center for civic and cultural life. Public outreach efforts included engagement with over 700 participants.

Oakley Recreation Center, Oakley, CA
Design of a new 9,500 sf community recreation center for the City of Oakley, which includes a large flexible multi-purpose room, performance stage, kitchen, administrative offices and meeting spaces. Site improvements include outdoor gathering spaces and athletic fields.

Berkeley Tuolumne Camp, Tuolumne County, CA, for the City of Berkeley This 30-acre camp was destroyed in the 2013 Rim Fire. Working with 20 consultants, Siegel & Strain designed approximately 100 structures – dining and recreation halls, camp office, a child care facility, staff and camper tent cabins, and bathrooms – totaling 40,000 sf plus utilities, infrastructure improvements, vehicular circulation, and pedestrian trails and paths.

TOTAL YEARS EXPERIENCE: 42
YEARS WITH FIRM: 21
Registration
Registered Architect, California (C22905)
LEED Accredited Professional BD+C, USGBC
Education
Master of Architecture,
University of California, Berkeley
International Laboratory for Architecture and
Urban Design, Siena, Italy
Bachelor of Arts, Architecture,
Washington University, St. Louis, MO
Professional & Civic Affiliations
American Institute of Architects
United States Green Building Council (USGBC)
AIA East Bay / UCB College of Environmental
Design Joint Lecture Committee Chair
Member, Berkeley Electrification Group,
a collaboration between City of Berkeley and
the Ecology Center, Berkeley, CA
Past President and Board Member, American
Institute of Architects, East Bay Chapter
Languages Spoken
Spanish
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SECTION D - QUALIFICATIONS OF TEAM
WOODLAND CONSTRUCTION | SIEGEL & STRAIN ARCHITECTS 28

MICHAEL HAYDEN, AIA, ASSOCIATE DBIA

PROJECT MANAGER, DIRECTOR OF TECHNICAL PRACTICE
Michael Hayden is an experienced architect who has served as Senior Project Manager and Designer for numerous projects over the years, many of which have received awards for sustainable design and design excellence. Michael is a key team member on Siegel & Strain’s most prominent agency projects. He has over 25 years of experience managing public bid projects, directing construction documentation, coordinating consultants and negotiating with general contractors. Michael has extensive experience in quality control, document organization, building envelope detailing, and he is leading the effort for staff mentorship in these areas.

SELECT PROJECT EXPERIENCE
Oakley Recreation Center, Oakley, CA
Design of a new 9,500 sf community recreation center for the City of Oakley, which includes a large flexible multi-purpose room, performance stage, kitchen, administrative offices and meeting spaces. Site improvements include outdoor gathering spaces and athletic fields.

Jess S. Jackson Sustainable Winery Building, University of California, Davis, CA Design/Build project designed to be zero net-energy and water, the fi rst of its kind on US university campuses. The metal building structure utilized design strategies maximize energy savings. Outfi tted with future adaptibility features: radiant tubing for cooling system, ducting to be used with a rock bed and roof area for concentrating solar system. Zero-net energy.

McClellan Ranch Preserve Environmental Education Center, Cupertino, CA Master planning of nature and rural park preserve and design of new environmental education center housing indoor and outdoor classroom gathering spaces.

Orinda City Hall, City of Orinda, CA
New city hall master plan, design and construction using high-performance energy efficient systems. LEED Gold.

Union Sanitary District New Campus Building, Union City, CA Programming, workshop facilitation, and full architectural services for a new headquarters that consolidates administration, laboratory and maintenance into one facility as part of a treatment plant upgrade.

National Environmental Science Center, Yosemite National Park, CA Master planning and design of campus complex for NatureBridge and National Park Service.

The new 17-building center weds the latest green design and energy concepts with the site’s inherent attributes to provide an interactive model of sustainability for program participants.

TOTAL YEARS EXPERIENCE: 29
YEARS WITH FIRM: 25
Registration
Registered Architect, California (C33536)
Education
Bachelor of Architecture
California College of the Arts, Oakland, CA
Professional & Civic Affiliations
American Institute of Architects
Design-Build Institute of America
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29 OAKLEY LIBRARY & COMMUNITY CENTER

COLIN SEARLES, AIA

PROJECT ARCHITECT
Colin Searles has led project coordination through all phases of design, from programming to construction administration, bringing a high attention to detail along every step of the process. He has extensive experience working within difficult site constraints, finding design solutions that highlight the surrounding landscape and enhance the user experience. Colin is currently working on three public library projects in the Bay Area, as well as a new visitor center at the Cottonwood entrance to Joshua Tree National Park.

SELECT PROJECT EXPERIENCE
Marina Branch Library, San Mateo, CA
Renovation of a 1960s era branch library, located along the SF Bay, including mitigating significant structural settlement. Renovation focused on energy savings, including upgrades to MEP systems, as well as new insulation and modern glazing. Programming was re-envisioned to include a dedicated teen space, increased area for casual browsing and gathering, and a flexible children’s area with expanded capacity for story time and other public presentations.

Rincon Valley Regional Library, Santa Rosa, CA
Interior renovation of the existing 15,000 square foot library to refresh finishes and furnishings, provide dedicated teen and maker spaces, integrate new technologies, improve acoustics, and renovate restroom facilities. The project is currently in the design development phase.

Novato Library, Novato, CA
Renovation of 1960s Marin County Free Library branch to address waterproofing issues, update mechanical and lighting systems, improve workroom and office functions, and renovate restroom facilities. The project is currently in the programming and budget confirmation phase.

Cottonwood Visitor Center, Joshua Tree National Park, CA Comprehensive design of a new visitor center in the Cottonwood District of Joshua Tree National Park, and rehabilitation of a Historic Ranger Station. The project also includes expanded parking facilities and an interpetive plaza and trail network. Cottonwood is the primary visitor intercept station for visitors entering the park from the south and has experienced significant visitation increases and growing numbers of visiting school and tour groups.

TOTAL YEARS EXPERIENCE: 10
YEARS WITH FIRM: 8
Registration
Registered Architect, California (C40091)
Education
Master of Architecture,
University of California, Berkeley
Bachelor of Arts, History,
University of California, Los Angeles
Honors: Phi Beta Kappa
Professional & Civic Affiliations
American Institute of Architects
Member, AIA East Bay
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SECTION D - QUALIFICATIONS OF TEAM
WOODLAND CONSTRUCTION | SIEGEL & STRAIN ARCHITECTS 30

REFERENCES
WOODLAND CONSTRUCTION BUILDERS, INC.

Kipp Magnussen, DVM
Owner
Standiford Veterinary Hospital
T | 209.470.0569
E | [email protected]
Michele Petlansky
Owner
Legacy Athletic Center
T | 925.963.4272
E | [email protected]
Phil Grams
Athletic Director
Ripon Christian Schools
T | 916.412.3970
E | [email protected]

SIEGEL & STRAIN ARCHITECTS
Randy Breault
Director of Public Works
City of Brisbane
T | 415.508.2131
E | [email protected]
Kevin Rohani
Director of Public Works
City of Oakley
T | 925.625.7003
E | [email protected]
Karen Cornejo
Assistant Engineer
City of San Mateo
T | 650.522.7576
E | [email protected]
Scott Ferris
Director of Parks, Recreation & Waterfront Department
City of Berkeley
T | 510.981.6700
E | [email protected]
Legacy Athletic Center
Brisbane Public Library
354
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Resolution No. XX-25 Page 1 of 1
RESOLUTION NO. XX-25

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OAKLEY APPROVING

AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE DESIGN-BUILD AGREEMENT’S WITH WOODLAND CONSTRUCTION BUILDERS, INC.

FOR THE DESIGN AND CONSTRUCTION OF THE NEW OAKLEY LIBRARY AND

COMMUNITY CENTER PROJECT
BE IT RESOLVED by the City Council of the City of Oakley approves the attached Design-Build Agreement’s with Woodland Construction Builders, Inc. for the design and construction of the new Oakley Library and Community Center, and authorizes the City Manager to execute the Agreement’s on its behalf.

PASSED AND ADOPTED by the City Council of the City of Oakley this 23rd day of September 2025 by the following vote.

AYES:

NOES:

ABSTENTION:

ABSENT:

APPROVED:
___________________
Shannon Shaw, Mayor
ATTEST:
____________________ ________
Kim Snodgrass, City Clerk Date
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Progressive DesignBuild Agreement
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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 Construction 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 any 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 warrants 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, express or implied, including, but not 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 may 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 be 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 for 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 agreement, 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 any proposal or prior agreement, oral or written, and any other communications between the parties relating to the subject matter of this agreement. 358
Instruction Sheet for DBIA Document 544 Page 1
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INSTRUCTIONS
For DBIA Document No. 544 Progressive Design-Build Agreement (2024 Edition) Checklist
Use this Checklist to ensure that the Agreement is fully completed and all exhibits are attached.

Page 1 ends

Section 2.1.7 Identify other exhibits to the Agreement
_______ Section 4.3.2 Complete blanks for additional sum for use of Work Product Section 5.2.1 Complete blanks for calendar days and note the optional language that is provided Section 5.2.2 Insert any interim milestones (optional)
Section 5.4 Complete blanks for liquidated damages and note the optional provisions that are provided
_______ Section 5.5 If the parties select the option provided, they must insert an amount _______ Section 5.6 Complete blanks for early completion bonus and note the optional provision that is provided _______ Section 5.7.1 Complete blank for calendar days for owner review _______ Section 5.7.2 Complete blank for calendar days for Owner review and response _______ Section 6.1.1 Complete blank for Phase 1 Services price Section 6.1.3 Insert basis for pricing specific Work (optional) Section 6.2 Complete blank for Lump Sum pricing (optional) _______ Section 6.3.1 Choose markups for changes
_______ Section 6.4.1 Choose basis for Fee and complete blanks and note optional provision that is provided Section 6.4.2.1 Insert financial arrangements for adjustments and note optional provisions Section 6.5.1.3 Complete blanks for markup; insert or attach personnel names, etc. _______ Section 6.5.1.4 Note optional language that is provided _______ Section 6.5.1.23 Note optional language that is provided _______ Section 6.6.1 Complete blanks for guaranteed maximum price and note the optional language that is provided
_______ Section 6.6.2 Complete blanks for contingency amount _______ Section 6.6.3 Complete blanks for savings amounts and note optional language that is provided _______ Section 6.7.4 Note the optional provision that is provided _______ Section 6.8.1 Insert any performance incentives (optional) Section 7.2.1 Complete blanks for day of month
Section 7.3.1 Complete blanks for retention percentage and note optional provision _______ Section 7.3.2 Note optional provision
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Checklist (Continued)
Use this Checklist to ensure that the Agreement is fully completed and all exhibits are attached.

Section 7.5 Complete blanks for interest rate
Section 8.1 Choose overhead/profit method for termination for convenience Section 8.2.1 Complete blanks for percentages
Section 8.2.2 Complete blanks for percentages
Section 9.1.1 Insert Owner’s Senior Representative’s name, etc. (optional) Section 9.1.2 Insert Owner’s Representative’s name, etc. (optional) Section 9.2.1 Insert Design-Builder’s Senior Representative’s name, etc. (optional) Section 9.2.2 Insert Design-Builder’s Representative’s name, etc. (optional) Section 10.1 Attach Insurance Exhibit
Section 10.2 Insert amount and conditions of bonds or other security and note the options that are provided
Section 11.1 Insert any other provisions (optional) or exhibits or documents incorporated or referenced in the Agreement
Section 12 Complete blank for rate
Last Page Owner’s and Design-Builder’s execution of the Agreement _______ Exhibit A Detail Phase 1 Scope of Work as referenced in Section 1.2.1 _______ Exhibit B Detail Owner’s Project Criteria as referenced in Section 1.1.1 360
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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 counsel. Moreover, care should also be taken when using different editions of the DBIA Standard Form Documents 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. 361
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Specific Instructions
Section Title Instruction
General Purpose of This
Agreement
DBIA Document No. 544 (“Agreement”) should be used for progressive design-build projects. Progressive Design-Build allows an Owner to complete a Design-Build project in two phases. In Phase 1, Owner completes preliminary design, sets the construction plan, and establishes the Phase 2 costs to complete final design and the planned construction. This Agreement allows for Owner to pay Design-Builder for design services and construction work in Phase 2 using Cost of the Work plus a Fee, with or without a Guaranteed Maximum Price (“GMP”), or Lump Sum.

If there is uncertainty about Owner’s final design Project Criteria after Phase 1, or the final design Project Criteria remain to be developed by Owner and Design-Builder together during Phase 2, a cost-plus/GMP contracting approach is desirable.

If there is certainty as to Owner’s Project Criteria and project design after Phase 1, a lump sum fixed price for the completion of all design and construction services in Phase 2 may be suitable, especially when Owner procures Design-Builder’s services by competitive means.

General Purpose of These
Instructions
These Instructions are not part of this Agreement, but are provided to aid the parties in their understanding of the Agreement and in completing the Agreement.

General Related Documents This Agreement shall be used in conjunction with the General Conditions of Contract.

Other related Contract Documents are listed in Article 2 of this Agreement.

General Date
On Page 1, enter the date when both parties reach a final understanding. It is possible, due to logistical reasons, that the dates when the parties execute the Agreement may be different. Once both parties execute the Agreement, the effective date of the Agreement will be the date recorded on Page 1. This date does not, however, determine Contract Time, which is measured according to the terms of Article 5.

General Parties: Owner and
Design-Builder
On Page 1 enter the legal name and full address of Owner and Design-Builder, as well as the legal form of each entity, e.g., corporation, partnership, limited partnership, limited liability company, or other.

1.3 Contract Price
Amendment and
Proposal
When a GMP or Lump Sum is established after execution of this Agreement for Phase 2 work, the Proposal must be attached to the Contract Price Amendment pursuant to Section 1.3.2. Both the Contract Price Amendment and Proposal will include those Basis of Design Documents Design-Builder uses as the basis for its Contract Price.

This Agreement provides the parties flexibility in establishing the Phase 2 Contract Price. Parties can establish a GMP or Lump Sum for Phase 2 after entering into this Agreement, or elect to proceed on the basis of costs plus a fee, without a GMP or Lump Sum.

If a GMP or Lump Sum method is elected, the GMP or Lump Sum should not be established until the Basis of Design Documents is sufficiently defined during Phase 1 to make the GMP or Lump Sum realistic and meaningful. Setting it too early does not permit reasonable opportunity for scope definition and evaluation of Project risk.

On the other hand, setting it too late may not achieve Owner’s objective of having an early price guarantee to enable it to make decisions relative to the Project.

1.3.1.4 Schedule
Given that expedited delivery is one of the primary factors driving many owners to select the design-build method, DBIA strongly believes that the parties should discuss and understand what each party must do to support the Project schedule.

The entire Work, both design and construction, should be scheduled. The schedule should indicate the dates for the start and completion of the various stages of the Work, including the date when Owner information and approvals are required, and 362
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Section Title Instruction
any Owner-created constraints. The Agreement also provides flexibility to establish the Scheduled Substantial Completion Date prior to submission of the Proposal.

1.3.2.2 Acceptance of
Proposal
If Owner accepts the Proposal, the parties should amend this Agreement to add the final Proposal as a Contract Document pursuant to Section 2.1.2.

1.3.2.3 Failure to Accept
the Proposal
This Agreement provides three options for Owner in the event it fails to accept the Proposal and two choices for Design-Builder if Owner fails to exercise any of the three options. These options are specifically designed to prevent one party from receiving a windfall in the event the parties cannot agree on the GMP or Lump Sum and the Agreement is terminated. This Agreement also states when the Agreement terminates or the Agreement is deemed completed if Owner fails to exercise one of the options.

The parties should take note that if Owner exercises its option to terminate for convenience, or Design-Builder suspends performance, Design-Builder will not be entitled to payment for uncompleted Work provided by Section 8.2. However, additional payment for Owner’s use of Work Product will be due Design-Builder pursuant to Section 4.3, if Owner proceeds to complete the Project using DesignBuilder’s Work Product.

2.1 Order of
Precedence
The Contract Documents are listed in Section 2.1 in the order of their precedence.

The Contract Price Amendment and Proposal are based on the Basis of Design Documents, which are comprised of various documents. The parties should strongly consider establishing the priority of the various documents comprising the Contract Price Amendment or Proposal to avoid disputes should discrepancies arise among the documents. Moreover, Section 2.1.7 recognizes that there may be other exhibits attached to this Agreement. If this is the case, the parties should discuss whether these exhibits should be part of the Basis of Design Documents. If these exhibits are not made part of the Basis of Design Documents, these exhibits will not take priority over the Basis of Design Documents in the event of a conflict.

2.1.5 Construction
Documents
After execution of the Agreement, and consistent with the requirements of Section 2.4 of the General Conditions of Contract, Design-Builder will prepare Construction Documents, subject to Owner’s review and approval.

3.3 Definitions Terms, words and phrases used in the Agreement shall have the same meanings used in the General Conditions of Contract.

3.4 Design
Specifications
Owner is cautioned that consistent with legal precedent, if it includes design specifications in its Project Criteria Design-Builder is entitled to rely on the information provided and to the extent said information is not accurate, Design-Builder is entitled to an adjustment in the Contract Price and/or Contract Time. Accordingly, Owner should consider using performance specifications to avoid such potential liability.

4.1 Work Product
This Agreement provides that Design-Builder shall retain ownership of the Work Product it produces, but obligates Design-Builder to grant a limited license to Owner to use the Work Product according to the terms and circumstances described in Sections 4.2, 4.3, 4.4 and 4.5.

4.2 Owner’s Limited
License Upon
Payment in Full
Design-Builder shall grant Owner, at Owner’s sole risk, a limited license to use the Work Product at the completion of the Work in connection with Owner’s occupation of the Project. This Section also provides the parties with the option of transferring ownership of some or all of the Work Product to Owner upon payment in full for all Work performed. Generally, where Owner desires ownership of Work Product, it is sufficient to transfer ownership of unique architectural and design elements. 363
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4.3 Owner’s Limited
License Upon
Owner’s
Termination for
Convenience or
Design-Builder’s
Election to
Terminate
Owner should not use the Termination for Convenience Clause to obtain DesignBuilder’s valuable design concepts, and then seek lower bids from other designbuilders. Therefore, where Owner terminates this Agreement for its convenience, and then decides to complete the Project with its own or third-party forces, Design-Builder shall grant Owner the rights set forth in Section 4.3, provided Owner pays DesignBuilder all amounts due Design-Builder as required by the Contract Documents, including paying Design-Builder an additional sum per Section 4.3.2 for the use of the Work Product. In the event Design-Builder elects to terminate this Agreement for cause, for reasons set forth in Section 11.4 of the General Conditions of Contract, these same conditions apply to Owner’s use of the Work Product.

4.3.2 Additional
Compensation
To minimize disputes, the parties should negotiate prior to the execution of the Agreement the amount Owner shall pay Design-Builder for the use of DesignBuilder’s Work Product in the event Owner terminates this Agreement for its convenience or Design-Builder elects to terminate this Agreement for cause. Enter this amount.

4.4 Owner’s Limited
License upon
Design-Builder’s
Default
If Design-Builder is properly terminated for default, Owner is granted a limited license to use the Work Product, to complete the Project, and Owner shall thereafter have the same rights and obligations as set forth in Section 4.3.

4.5 Owner’s
Indemnification for
Use of Work
Product
Owner’s use or alteration of the Work Product shall be at its sole risk, and Owner must agree to defend, indemnify, and hold harmless Design-Builder and anyone working by or through Design-Builder, including Design Consultants of any tier.

5.1 Date of
Commencement
Design-Builder’s obligation to commence work is triggered by its receipt of a Notice to Proceed unless the parties mutually agree otherwise.

5.2.1 Substantial
Completion of the
Entire Work
Enter the calendar days of duration by which Substantial Completion has to be achieved. The parties in this Section have the option of modifying the definition of Substantial Completion set forth in the General Conditions of Contract. If this option is selected, Substantial Completion will be deemed to be achieved no later than the date a Temporary Certificate of Occupancy is issued if applicable to the Project.

5.2.2 Interim Milestones
It may be that some portions of the Work must be completed in phases or within a prescribed period of time to accommodate Owner’s needs. The parties may, at their option, identify these portions of the Work to be completed prior to Substantial Completion of the entire Work. Enter the calendar days, starting from the Date of Commencement, for achieving Substantial Completion of these identified portions of the Work. If these portions of the Work are required to be substantially completed by certain milestone dates, enter those dates. As presently drafted, no remedy is provided to Owner if an interim milestone is not met. If Owner has special requirements as it relates to interim milestones, Owner may want to consider a remedy for Design-Builder’s failure to meet an interim milestone, as well as providing a bonus to Design-Builder for satisfying such interim milestone. 364
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Section Title Instruction

5.4 Liquidated
Damages
Owner should make a good faith evaluation of the amount that is reasonably necessary to compensate it for delay. Owner should not establish liquidated damages to penalize Design-Builder. Moreover, in the event a GMP or Lump Sum is not established upon execution of the Agreement, it appears prudent for the parties to refrain from establishing liquidated damages until such time as the GMP or Lump Sum is established.

Section 5.4 establishes a grace period between the Scheduled Substantial Completion Date and the assessment of liquidated damages in order to prevent disputes as to which party bears responsibility for only a few days of delay. The parties should enter the calendar days that may pass following the Scheduled Substantial Completion Date before liquidated damages will be assessed.

The parties are also provided the option of establishing liquidated damages if the Design-Builder fails to achieve Final Completion within a specified number of days after Substantial Completion. If this option is selected, the parties must negotiate the number of days, as well as the liquidated damages amount. The parties in negotiating liquidated damages should keep in mind that the amount of liquidated damages for failing to achieve Final Completion should be a considerably scaled down amount and should reflect the financial harm to Owner. In no case should the total amount of liquidated damages for the Project exceed an amount that is reasonably necessary to compensate Owner for Project delay.

The parties also have the option here of eliminating liquidated damages altogether in which case Owner can recover actual damages for Project delay at an amount that is capped by the parties. Owner is cautioned that it still cannot recover consequential damages under Section 10.5.1 of the General Conditions of Contract.

5.5 Liquidated
Damages Cap The parties can agree to cap liquidated damages at a negotiated amount.

5.6 Early Completion
Bonus
If the Project economics justify liquidated damages, then it is appropriate to couple these liquidated damages with an early completion bonus. The parties should enter the number of calendar days prior to the Scheduled Substantial Completion Date that will set the Bonus Date. Also, enter the amount of the bonus to be paid per day that will allow Owner to share with Design-Builder the economic benefits of early completion. Moreover, in the event a GMP or Lump Sum is not established upon execution of the Agreement, it appears prudent for the parties to refrain from establishing an early completion bonus until such time as the GMP or Lump Sum is established. The parties also have the option in Section 5.6 of capping the early completion bonus at a negotiated amount.

Optional
Provision
in 5.6
Compensation for
Force Majeure
Events
The parties are provided the opportunity of providing Design-Builder the right to receive compensation for Force Majeure Events. By selecting this option, the parties agree to modify Section 8.2.2 of the General Conditions of Contract, in which case the parties must negotiate how many cumulative days of Force Majeure delays must occur before Design-Builder is entitled to either a negotiated amount per day for delay or the direct costs it has incurred as a result of such delay. 365
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6.1 GMP or Lump Sum
at Agreement
Execution
Enter the GMP or Lump Sum for Phase 2 Services, if appropriate. Attach as an amendment to this Agreement the Basis of Design Documents used to establish the GMP or Lump Sum. These documents comprise the Contract Price Amendment which shall become a Contract Document pursuant to Section 2.1.2 of the Agreement. Design-Builder does not guarantee any specific line item provided as part of a GMP.

By selecting the alternate option if using a GMP, Design-Builder agrees to guarantee the line item in its GMP for general conditions costs only. Design-Builder agrees that it is responsible for paying general conditions costs in excess of this line item.

Design-Builder does not guarantee any other line items in the GMP.

6.1.3 Optional Pricing
This Agreement allows the parties the flexibility to establish within the Contract Price a different payment basis for certain portions of the Work which may be necessary to permit Design-Builder to furnish Owner with a GMP or Lump Sum.

6.4.1 Design-Builder’s
Fee
Enter the amount of Design-Builder’s Fee as a sum certain or as a percentage of the Cost of the Work. Design-Builder’s Fee shall be commensurate with the services it provides and the risk it assumes in providing single point responsibility to Owner.

6.4.2 Adjustments to
Design-Builder’s
Fee
For additive Change Orders, the parties must negotiate the Fee Design-Builder will receive. For deductive Change Orders, the parties have the option by checking the appropriate box of whether there will be no additional reduction or whether there will be an additional reduction based on a negotiated percentage.

6.5.1.3 Wages for DesignBuilder’s Employees
at Principal or
Branch Offices
DBIA endorses reimbursing salaries and associated benefits of Design-Builder’s Project personnel, such as accountants, stationed at offices other than the field office, when to do so is more efficient and cost effective. Enter the percentage markup to be applied for Project-related overhead associated with such personnel. Insert, or attach as an exhibit, a list of such personnel and their job functions.

6.5.1.4 Employee Benefits
It may be simpler for the parties to agree on a multiplier (rather than actual costs) to compensate Design-Builder for employee benefits. Accordingly, the parties may want to insert the multiplier to be applied to the wages and salaries of its reimbursable employees.

6.5.1.7 Costs for
Defective/NonConforming Work
The Cost of the Work shall include the costs to repair or correct defective or nonconforming Work (including warranty or corrective work performed after Substantial Completion) unless caused by Design-Builder’s negligence. DBIA believes that Design-Builder should not be penalized for inadvertent mistakes which are inevitable when designing and constructing a Project. To do so would encourage ultraconservatism in every task, the ultimate cost of which would be greater than a proactive approach to performing the Work, which includes ordinary mistakes or inadvertence.

6.5.1.23 Warranty Escrow
At this section, the parties are provided the opportunity to establish prior to Final Completion an escrow account in a negotiated amount to be used to reimburse Design-Builder for its costs incurred in performing warranty Work if a GMP is used. If funds remain in the escrow account after the expiration of the warranty period, the funds are returned to Owner subject to Design-Builder’s share of any savings. Note that even if the escrow account is exhausted, if funds remain under the GMP, Owner is still obligated to reimburse Design-Builder for its warranty Work. 366
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6.6.2 GMP Contingency
Enter the amount of Design-Builder’s Contingency if using a GMP. The Contingency is for the exclusive use of Design-Builder and covers all unanticipated costs incurred that are not the basis of a Change Order, provided that such costs are documented, reasonable, and necessary for the completion of the Work. This section sets forth by way of example only the type of costs that would be funded out of the Contingency.

Other costs such as, but not limited to, any deductibles Design-Builder is obligated to pay would be subject to reimbursement. Design-Builder is also required to provide Owner with a monthly status report accounting for the Contingency, including all reasonably foreseen uses and potential uses, of the Contingency for the upcoming three months.

While not provided for in the Contingency provision, DBIA recognizes that there may be situations where Owner will want to recapture the Contingency prior to Final Completion. For example, Owner may want to use amounts in the Contingency to fund changes to the Project. Owner’s desire must be balanced against DesignBuilder’s need to use the Contingency to fund unanticipated costs for which it is liable. An option to consider to accommodate both interests is to establish an “Owner’s Contingency” and a “Design-Builder’s Contingency” in the GMP. If this option is used, any savings clause in the agreement should be drafted appropriately to address these pools of funds.

6.6.3 Savings
One of the benefits of a GMP approach is the possibility that with good management by Design-Builder and timely support from Owner the actual Cost of the Work and Fee may be less than the GMP. This creates a savings pool that should result in a benefit to both Design-Builder and Owner. Sharing these savings creates an incentive for Design-Builder to save costs. Some factors to consider in determining how the Savings are shared include the timing for the establishment of the GMP and the amount of Design-Builder’s Fee established under Section 6.4.1.

6.6.3.1 Savings
Calculations
This section provides that if the actual Cost of the Work and Design-Builder’s Fee is less than the GMP, as such GMP may have been adjusted, the savings, if any, shall be shared. The Agreement offers two choices for distributing Savings. Choose a method and enter the appropriate figures.

6.7.4 Allowance Value
This section recognizes that the parties may agree that certain items of Work should be treated as an Allowance Item and priced based on Allowance values. The Allowance Value for which Design-Builder will be entitled to receive compensation includes direct cost of labor, materials, equipment, transportation, taxes, and insurance associated with the Allowance Item. All other costs associated with the Allowance Item, such as design fees, general conditions costs, and Fee are deemed to be included in the Contract Price. However, by checking the box, the parties agree that in the event the actual cost of the Allowance Item is greater than or less than the Allowance Value by a negotiated percentage, then Design-Builder’s right to Fee and markup shall be determined pursuant to Section 6.4.

6.8 Performance
Incentives
In addition, for the potential of Design-Builder to share in Savings as set forth in Section 6.6.3, there may be other performance incentives that will influence Project success. Such incentives may include award fees tied to Design-Builder achieving certain standards relative to client satisfaction, safety, and personnel retention. The parties are encouraged to discuss the use of such incentives during negotiation of this Agreement. Any agreement on the use of incentives should be set forth in an exhibit attached to this Agreement.

7.2.1 Progress Payments Enter the day of the month when Design-Builder shall submit its Application for Payment.
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7.3.1 Retainage
Enter the percentage Owner will retain from Progress Payments to Design-Builder until fifty percent (50%) of the Work is completed. Owner should recognize that it creates undue hardship to hold retainage on Subcontractors that have completed their work early in the Project. Owner should accordingly consider releasing retainage on Subcontractors that complete work early in the Project, providing that these Subcontractors have satisfactorily performed their portion of the Work.

The parties are provided the option of modifying the retainage provision by checking the box. This option excludes from retainage the Design-Builder’s general conditions costs and amounts paid to Design-Builder’s Design Consultant. The rationale for selecting this option is that Design-Builder is obligated to pay its general conditions costs in full each month and that under the design-bid-build delivery method, Owner typically does not retain sums from its Designer.

7.3.2 Release of
Retainage
This section requires Owner to release retainage to Design-Builder. If Design-Builder and Owner have established a warranty reserve in accordance with Section 6.5.1.23, the parties shall establish an escrow account at this time.

7.5 Interest
The parties should enter the rate at which interest will accrue on Design-Builder’s payments if unpaid five (5) days after due. Late payment creates a hardship for Design-Builder, its Design Consultants, and Subcontractors.

7.6 Record Keeping
Owner is provided access to Design-Builder’s accounting information as it relates to Costs of the Work. However, if the parties have agreed to multipliers or markups, the time to challenge and negotiate those percentages is at the time the parties execute the Agreement and not during the Project or after it has been completed. Accordingly, Owner can at any time audit these percentages only to confirm that such percentage has been properly charged and not to challenge the composition of such percentage.

8.1 Termination for
Convenience:

Overhead and Profit
The parties should choose prior to execution of the Agreement the method that will be used to determine overhead and profit paid to Design-Builder in the event Owner terminates Design-Builder for its convenience. The parties may choose to set percentage rates for overhead and profit prior to execution of the Agreement, or may choose to determine reasonable sums to be paid for overhead and profit at the time of the termination. If the parties choose to set overhead and profit rates prior to execution of the Agreement, the percentages should be entered in Section 8.1.

8.2 Termination for
Convenience:

Additional Payments
Although it is important for Owner to have a process for terminating this Agreement for convenience, the process must consider the interests of Design-Builder. If Owner terminates this Agreement for its own convenience, compensating Design-Builder for its costs will not be adequate because Design-Builder will have committed its resources for a small amount of revenue. Therefore, in addition to the overhead and profit paid in Section 8.1, Owner shall pay Design-Builder an additional sum, calculated as a percentage of the remaining balance of the Contract Price or, if a GMP or Lump Sum has not been established, the remaining balance of the most recent estimated Contract Price. Enter the percentages Owner shall pay DesignBuilder if Owner terminates this Agreement for its own convenience prior to or after the start of construction.

8.3 Termination for
Convenience:

Owner’s Use of
Work Product
Owner should not use the Termination for Convenience clause to obtain DesignBuilder’s valuable design concepts and then seek lower bids from another designbuilder. 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. 368
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Article 9
Representatives of
the Parties
Enter the name, title, address and telephone number of Owner’s Senior Representative and Owner’s Representative at Sections 9.1.1 and 9.1.2, respectively.

Enter the name, title, address and telephone number of Design-Builder’s Senior Representative and Design-Builder’s Representative at Sections 9.2.1 and 9.2.2, respectively.

The parties can elect to establish these Representatives during the performance of the Project rather than at the time of execution of this Agreement. If Representatives are identified after execution of the Agreement, an appropriate amendment should be made to the Agreement at the time these individuals are designated.

10.1 Insurance
Attach an Insurance Exhibit setting forth in detail the insurance coverages required for the Project. Parties are advised to familiarize themselves with the terms of Article 5 of the General Conditions of Contract, Insurance and Bonds, and to consult their insurance advisor.

10.2 Bonds
Enter the type and amount of bonds or other performance security required for the Project. Where bonding is not required by statute, Owner may want to evaluate the project risks versus the bonding costs in deciding what type of performance security to require.

11.1 Other Provisions
Insert any other provisions. For example, the parties may elect to have disputes resolved through litigation rather than arbitration, in which case the following optional language in this Section should be included.

11.2 Listing of Exhibits
Include a listing of exhibits and documents incorporated or referenced in the Agreement. This listing includes the exhibits and documents referenced in the Agreement. Additional documents or exhibits referenced in the Agreement should be listed here.
12 Limitation of Liability This provision establishes a limit of liability of Design-Builder’s liability for the Project. 369
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This document has important legal consequences. Consultation with an attorney is recommended with respect to its completion or modification.

This AGREEMENT is made as of the day of in
the year of 20 , by and between the following parties, for services in connection with the Project identified below:

OWNER:
(Name and address)
City of Oakley
3231 Main Street
Oakley, CA 94561
DESIGN-BUILDER:
(Name and address)
Woodland Construction Builders, Inc.
4524 Salida Boulevard
Salida, CA 95368
PROJECT:
(Include Project name and location as it will appear in the Contract Documents) City of Oakley Library and Community Center
In consideration of the mutual covenants and obligations contained herein, Owner and Design-Builder agree as set forth herein.
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Article 1
Design-Builder’s Services and Responsibilities

1.1 General Services.

1.1.1 n/a

1.1.2 Owner’s Project Criteria has not been developed prior to the execution of this Agreement, therefore in Phase 1 of this Agreement Design-Builder will assist Owner in developing Owner’s Project Criteria, with such service deemed to be an additional service for which additional compensation shall be paid by Owner to Design-Builder. If Owner has developed Owner’s Project Criteria prior to executing this Agreement, Design-Builder shall review and prepare a written evaluation of such criteria, including recommendations to Owner for different and innovative approaches to the design and construction of the Project. The parties shall meet to discuss DesignBuilder’s written evaluation of Owner’s Project Criteria and agree upon what revisions, if any, should be made to such criteria.

1.2 Phased Services.

1.2.1 Phase 1 Services, VALIDATION (CONCEPT DESIGN). Design-Builder shall perform the services of design, pricing, and other services for the Owner’s Project Criteria based on Owner’s input, as may be revised in accordance with Section 1.1 hereof, as set forth in Exhibit A, Scope of Services. Design-Builder shall perform such services to the level of completion required for DesignBuilder and Owner to proceed to Phase 2, . The Contract Price for Phase 3 shall be developed during Phase 2 on an “open-book” basis. Design-Builder’s Compensation for Phase 1 Services is set forth in Section 6.1.1 herein. The level of completion required for Phase 1 Services is defined in Exhibit A, Scope of Services (either as a percentage of design completion or by defined deliverables).

1.2.2 Phase 2 Services, DETAILED DESIGN THROUGH PERMITTING. Design-Builder’s Phase 2 services shall consist of the completion of design services for the Project as required for permitting and construction, Estimating of the construction costs, assembly of construction cost Schedule of Values, an open-book bid review with owner, and the Proposal as required in Section 1.3. Upon receipt of Design-Builder’s proposed Contract Price for Phase 3, Owner may proceed as set forth in Section 1.3.

1.2.3 Phase 3 Services, CONSTRUCTION. Design-Builder’s Phase 3 shall consist of the procurement of all materials and equipment for the Project, the performance of construction services for the Project, the start-up, testing, and commissioning of the Project, and the provision of warranty services, all as further described in the Contract Price Amendment.

1.3 Proposal. Upon completion of the Phase 2 Services and any other Basis of Design Documents upon which the parties may agree, Design-Builder shall submit a proposal to Owner (the “Proposal”) for the completion of the design and construction for the Project for the Contract Price, will be based on Lump Sum Guaranteed Maximum Price (GMP).

1.3.1 The Proposal shall include the following unless the parties mutually agree otherwise:

1.3.1.1 The Contract Price that will be based on a Lump Sum, and shall include a detailed Schedule of Values breakdown of construction costs;

1.3.1.2 The Basis of Design Documents, which may include, by way of example, Owner’s Project Criteria which are set forth in detail and are attached to the Proposal; 371
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1.3.1.3 A list of the assumptions and clarifications made by Design-Builder in the preparation of the Proposal, which list is intended to supplement the information contained in the drawings and specifications and is specifically included as part of the Basis of Design Documents;

1.3.1.4 The Scheduled Substantial Completion Date upon which the Proposal is based, to the extent said date has not already been established under Section 5.2.1 hereof, and a schedule upon which the Scheduled Substantial Completion Date is based and a Project Schedule for the Work;

1.3.1.5 If applicable, a list of Allowance Items, Allowance Values, and a statement of their basis;

1.3.1.6 If applicable, a schedule of alternate prices;

1.3.1.7 If applicable, a schedule of unit prices;

1.3.1.8 If applicable, a statement of Additional Services which may be performed but which are not included in the Proposal, and which, if performed, shall be the basis for an increase in the Contract Price and/or Contract Time(s);

1.3.1.9 If applicable, a Savings provision;

1.3.1.10 If applicable, Performance Incentives;

1.3.1.11 The time limit for acceptance of the Proposal; and

1.3.1.12 An Owner’s permit list, a list detailing the permits and governmental approvals that Owner will bear responsibility to obtain.

1.3.1.13 List of all plans and design documents upon which the Proposal is based

1.3.2 Review and Adjustment to Proposal.

1.3.2.1 After submission of the Proposal, Design-Builder and Owner shall meet to discuss and review the Proposal. If Owner has any comments regarding the Proposal, or finds any inconsistencies or inaccuracies in the information presented, it shall promptly give written notice to Design-Builder of such comments or findings. If appropriate, Design-Builder shall, upon receipt of Owner’s notice, make appropriate adjustments to the Proposal.

1.3.2.2 Acceptance of Proposal. If Owner accepts the Proposal, as may be amended by Design-Builder, the Contract Price and its basis shall be set forth in an amendment to this Agreement, when mutually agreed between the parties (Contract Price Amendment).

Once the parties have agreed upon the Contract Price and Owner has issued a Notice to Proceed with Phase 3, Design-Builder shall perform the Phase 3 Services, all as further described in the Contract Price Amendment, as it may be revised.

1.3.2.3 Failure to Accept the Proposal. If Owner rejects the Proposal, or fails to notify Design-Builder in writing on or before the date specified in the Proposal that it accepts the Proposal, the Proposal shall be deemed withdrawn and of no effect. In such event, Owner and Design-Builder shall meet and confer as to how the Project will proceed, with Owner having the following options:
i Owner may suggest modifications to the Proposal, whereupon, if such modifications are accepted in writing by Design-Builder, the Proposal shall be deemed accepted and the parties shall proceed in accordance with Section

1.3.2.2 above;
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ii Owner may authorize Design-Builder to continue to proceed with the Work on the basis of reimbursement as provided in Section 6.1.2 hereof without a Contract Price, in which case all references in this Agreement to the Contract Price shall not be applicable; or
iii Owner may terminate this Agreement for convenience in accordance with Article 8 hereof; provided, however, in this event, Design-Builder shall not be entitled to the payment provided for in Section 8.2 hereof.

If Owner fails to exercise any of the above options, Design-Builder shall have the right to (a) continue with the Work as if Owner had elected to proceed in accordance with Section

1.3.2.3 ii. above, and be paid by Owner accordingly, unless and until Owner notifies it in writing to stop the Work; (b) suspend performance of Work in accordance with Section

11.3.1 of the General Conditions of Contract, provided, however, that in such event DesignBuilder shall not be entitled to the payment provided for in Section 8.2 hereof; or (c) may give written notice to Owner that it considers this Agreement completed. If Owner fails to exercise any of the options under Section 1.3.2.3 within ten (10) days of receipt of DesignBuilder’s notice, then this Agreement shall be deemed completed. If Owner terminates the relationship with Design-Builder under Section 1.3.2.3 iii, or if this Agreement is deemed completed under this paragraph, then Design-Builder shall have no further liability or obligations to Owner under this Agreement.

Article 2
Contract Documents

2.1 The Contract Documents are comprised of the following:

2.1.1 All written modifications, amendments, minor changes, and Change Orders to this Agreement issued in accordance with DBIA Document No. 535, Standard Form of General Conditions of Contract Agreement Between Owner and Design-Builder (2022 Edition) (“General Conditions of Contract”);

2.1.2 The Contract Price Amendment or the Proposal accepted by Owner in accordance with Section 1.3 above.

2.1.3 This Agreement, including all exhibits (list for example, performance standard requirements, performance incentive arrangements, markup exhibits, allowances, unit prices, or exhibit detailing offsite reimbursable personnel) but excluding, if applicable, the Contract Price Amendment;

2.1.4 The General Conditions of Contract;

2.1.5 Construction Documents prepared and approved in accordance with Section 2.4 of the General Conditions of Contract;

2.1.6 Exhibit A, Scope of Services; and

2.1.7 The following other documents, if any:

Article 3
Interpretation and Intent

3.1 Design-Builder and Owner, at the time of acceptance of the Proposal by Owner in accordance with Section 1.3 hereof, shall carefully review all the Contract Documents, including the various documents 373
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comprising the Basis of Design Documents for any conflicts or ambiguities. Design-Builder and Owner will discuss and resolve any identified conflicts or ambiguities prior to execution of the Agreement, or if applicable, prior to Owner’s acceptance of the Proposal.

3.2 The Contract Documents are intended to permit the parties to complete the Work and all obligations required by the Contract Documents within the Contract Time(s) for the Contract Price. The Contract Documents are intended to be complementary and interpreted in harmony so as to avoid conflict, with words and phrases interpreted in a manner consistent with construction and design industry standards. In the event inconsistencies, conflicts, or ambiguities between or among the Contract Documents are discovered after Owner’s acceptance of the Proposal, Design-Builder and Owner shall attempt to resolve any ambiguity, conflict, or inconsistency informally, recognizing that the Contract Documents shall take precedence in the order in which they are listed in Section 2.1 hereof. (Note, the parties are strongly encouraged to establish in the Contract Price Amendment or Proposal (as applicable) the priority of the various documents comprising such exhibit or proposal.)

3.3 Terms, words, and phrases used in the Contract Documents, including this Agreement, shall have the meanings given them in the General Conditions of Contract.

3.4 If Owner’s Project Criteria contain design specifications: (a) Design-Builder is entitled to reasonably rely on the accuracy of the information represented in the design specifications and their compatibility with other information set forth in Owner’s Project Criteria, including any design performance specifications; and (b) Design-Builder shall be entitled 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 such inaccurate design specification.

3.5 The Contract Documents form the entire agreement between Owner and Design-Builder and by incorporation herein are as fully binding on the parties as if repeated herein. No oral representations or other agreements have been made by the parties except as specifically stated in the Contract Documents.

Article 4
Ownership of Work Product

4.1 Work Product. All drawings, specifications and other documents and electronic data, including such documents identified in the General Conditions of Contract, furnished by Design-Builder to Owner under this Agreement (“Work Product”) are deemed to be instruments of service and Design-Builder shall retain the ownership and property interests therein, including but not limited to any intellectual property rights, copyrights, and/or patents, subject to the provisions set forth in Sections 4.2 through 4.5 below.

4.2 Owner’s Limited License upon Project Completion and Payment in Full to Design-Builder. Upon Owner’s payment in full for all Work performed under the Contract Documents, Design-Builder shall grant Owner a limited license to use the Work Product in connection with Owner’s occupancy of the Project, conditioned on Owner’s express understanding that its alteration of the Work Product without the involvement of Design-Builder is at Owner’s sole risk and without liability or legal exposure to DesignBuilder or anyone working by or through Design-Builder, including Design Consultants of any tier (collectively the “Indemnified Parties”), and on the Owner’s obligation to provide the indemnity set forth in Section 4.5 herein.

4.3 Owner’s Limited License upon Owner’s Termination for Convenience or Design-Builder’s Election to Terminate. If Owner terminates this Agreement for its convenience as set forth in Article 8 hereof, or if Design-Builder elects to terminate this Agreement in accordance with Section 11.4 of the General Conditions of Contract, Design-Builder shall, upon Owner’s payment in full of the amounts due DesignBuilder under the Contract Documents, grant Owner a limited license to use the Work Product to complete the Project and subsequently occupy the Project, and Owner shall thereafter have the same rights as set forth in Section 4.2 above, conditioned on the following:
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4.3.1 Use of the Work Product is at Owner’s sole risk without liability or legal exposure to any Indemnified Party, and on the Owner’s obligation to provide the indemnity set forth in Section 4.5 herein, and

4.4 Owner’s Limited License upon Design-Builder’s Default. If this Agreement is terminated due to Design-Builder’s default pursuant to Section 11.2 of the General Conditions of Contract, then DesignBuilder grants Owner a limited license to use the Work Product to complete the Project and subsequently occupy the Project, and Owner shall thereafter have the same rights and obligations as set forth in Section

4.2 above. Notwithstanding the preceding sentence, if it is ultimately determined that Design-Builder was not in default, Owner shall be deemed to have terminated the Agreement for convenience, and DesignBuilder shall be entitled to the rights and remedies set forth in Section 4.3 above.

4.5 Owner’s Indemnification for Use of Work Product. Owner recognizes that in the event of an early termination of the Work, whether for convenience or for cause, Design-Builder will not have the opportunity to finish or to finalize its Work Product. Therefore, if Owner uses the Work Product, in whole or in part, or if Owner is required to indemnify any Indemnified Parties based on the use or alteration of the Work Product under any of the circumstances identified in this Article 4, Owner shall defend, indemnify, and hold harmless the Indemnified Parties from and against any and all claims, damages, liabilities, losses, and expenses, including attorneys’ fees, arising out of or resulting from the use or alteration of the Work Product, to the fullest extent permitted by applicable law.

Article 5
Contract Time

5.1 Date of Commencement. The Phase 1 Services shall commence within five (5) days of DesignBuilder’s receipt of Owner’s Notice to Proceed unless the parties mutually agree otherwise in writing. The Work shall commence within five (5) days of Design-Builder’s receipt of Owner’s Notice to Proceed for Phase 3 Services (“Date of Commencement”) if the Proposal is accepted and the Contract Price Amendment is amended to this Agreement unless the parties mutually agree otherwise in writing.

5.2 Substantial Completion and Final Completion.

5.2.1 Substantial Completion of the entire Work shall be outlined in the lump sum proposal provided by Design-Builder as part of Phase 2 of this Agreement.

5.2.2 Final Completion of the Work or identified portions of the Work shall be achieved as expeditiously as reasonably practicable. Final Completion is the date when all Work is complete pursuant to the definition of Final Completion set forth in Section 1.2.8 of the General Conditions of Contract.

5.2.3 All of the dates set forth in this Article 5 (“Contract Time(s)”) shall be subject to adjustment in accordance with the General Conditions of Contract.

5.3 Time is of the Essence. Owner and Design-Builder mutually agree that time is of the essence with respect to the dates and times set forth in the Contract Documents.

5.4 Liquidated Damages. Design-Builder understands that if Substantial Completion is not attained by the Scheduled Substantial Completion Date, Owner will suffer damages which are difficult to determine and accurately specify. Design-Builder and Owner shall define and agree to any liquidated damages terms as part of the Phase 3 lump sum proposal and contract amendment.

5.5 Owner’s Review Time. The parties have established the following maximum and minimum amount of time for Owner to review Design Submissions and the Project Schedule or any updates thereto unless the parties agree in writing otherwise.
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5.5.1 Owner shall have a minimum of ten (10) days of receipt by Owner to review all Design Submissions, the Project Schedule, and any updates thereto.

5.5.2 Owner shall review and (if applicable) provide a response to Design-Builder on all Design Submissions, the Project Schedule, and any updates thereto within ten (10) days of receipt by Owner.

Article 6
Contract Price

6.1 Contract Price.

6.1.1 Owner shall pay Design-Builder its costs at the rates outlined on Exhibit A, for the Phase 1 Services, subject to adjustments made in accordance with the General Conditions of Contract. It is agreed that the Phase 1 work will not exceed the total amount of $251,140, unless otherwise provided in the Contract Documents, the Phase 1 Services compensation is deemed to include all sales, use, consumer and other taxes mandated by applicable Legal Requirements.

6.1.2 Upon completion of Phase 1, Design-Builder will provide Owner with a not to exceed price for the Phase 2 work. Upon approval by Owner Design-Builder will proceed with the Phase 2 work to be paid in accordance with Article 6 of the General Conditions, subject to adjustments made in accordance with the General Conditions of Contract. Unless otherwise provided in the Contract Documents, the Phase 2 Services compensation is deemed to include all sales, use, consumer and other taxes mandated by applicable Legal Requirements.

6.1.3 For Phase 3 Services, Owner shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract a contract price (“Contract Price”) equal to the Lump Sum amount set forth in Section 6.2 hereof or in the Contract Price Amendment, subject to any GMP established in Section 6.6 hereof or as set forth in the Contract Price Amendment and any adjustments made in accordance with the General Conditions of Contract.

6.2 Lump Sum. Owner shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract the sum agreed to by the Owner and Design-Builder after the Phase 2 design has been completed (“Contract Price”) for the Work for Phase 3 Services, subject to adjustments made in accordance with the General Conditions of Contract. Unless otherwise provided in the Contract Documents, the Contract Price is deemed to include all sales, use, consumer and other taxes mandated by applicable Legal Requirements.

6.3 Markups for Changes. If the Contract Price requires an adjustment due to changes in the Work, and the cost of such changes is determined under Section 9.4.1. of the General Conditions of Contract, the following markups shall be allowed on such changes:

6.3.1 For additive Change Orders, including additive Change Orders arising from both additive and deductive items, it is agreed that Design-Builder shall receive a Fee of five percent (5) of the additional costs incurred for that Change Order, plus the cost of Design-Builders insurance and bonding costs.

6.3.2 For deductive Change Orders, including deductive Change Orders arising from both additive and deductive items, the deductive amounts shall include:
[X No additional reduction to account for Design-Builder’s Fee or any other markup. 376
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6.4 Cost of the Work.

6.4.1 The term Cost of the Work shall mean costs reasonably incurred by Design-Builder in the proper performance of the Work. The Cost of the Work shall include only the following:

6.4.1.1 Wages of direct employees of Design-Builder performing the Work at the Site or, with Owner’s agreement, at locations off the Site, provided, however, that the costs for those employees of Design-Builder performing design services shall be calculated on the basis of prevailing market rates for design professionals performing such services or, if applicable, those rates set forth in an exhibit to this Agreement.

6.4.1.2 Wages or salaries of Design-Builder’s supervisory and administrative personnel engaged in the performance of the Work and who are located at the Site or working offSite to assist in the production or transportation of material and equipment necessary for the Work.

6.4.1.3 Wages or salaries of Design-Builder’s personnel stationed at Design-Builder’s principal or branch offices, but only to the extent said personnel are identified within a category of services listed within Exhibit-A and performing the function set forth in said Exhibit. The reimbursable costs of personnel stationed at Design-Builder’s principal or branch offices shall include a six percent (6%) markup to compensate Design-Builder for the Project-related overhead associated with such personnel.

6.4.1.4 Costs incurred by Design-Builder for employee benefits, premiums, taxes, insurance, contributions and assessments required by law, collective bargaining agreements, or which are customarily paid by Design-Builder, to the extent such costs are based on wages and salaries paid to employees of Design-Builder covered under Sections

6.5.1.1 through 6.5.1.3 hereof.

6.5 Allowance Items and Allowance Values.

6.5.1 Any and all Allowance Items, as well as their corresponding Allowance Values, are set forth in the Contract Price Amendment or the Proposal.

6.5.2 Design-Builder and Owner have worked together to review the Allowance Items and Allowance Values based on design information then available to determine that the Allowance Values constitute reasonable estimates for the Allowance Items. Design-Builder and Owner will continue working closely together during the preparation of the design to develop Construction Documents consistent with the Allowance Values. Nothing herein is intended in any way to constitute a guarantee by Design-Builder that the Allowance Item in question can be performed for the Allowance Value.

6.5.3 No work shall be performed on any Allowance Item without Design-Builder first obtaining in writing advanced authorization to proceed from Owner. Owner agrees that if Design-Builder is not provided written authorization to proceed by the date set forth in the Project schedule, due to no fault of Design-Builder, Design-Builder may be entitled to an adjustment of the Contract Time(s) and Contract Price.

6.5.4 The Allowance Value includes the direct cost of labor, materials, equipment, transportation, taxes, and insurance associated with the applicable Allowance Item. All other costs, including design fees, Design-Builder’s overall project management and general conditions costs, overhead and Fee, are deemed to be included in the original Contract Price, and are not subject to adjustment notwithstanding the actual amount of the Allowance Item. (The parties are encouraged to discuss and agree upon performance incentives that will influence project success. These incentives may consist of Award Fees, incentives for safety, personnel retention, client satisfaction, and similar items.)
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Article 7
Procedure for Payment

7.1 Payment for Preliminary Services. Design-Builder and Owner agree upon the following method for partial and final payment to Design-Builder for the services hereunder: (Insert terms.)

7.2 Contract Price Progress Payments.

7.2.1 Design-Builder shall submit to Owner on the twentieth (20th) day of each month, beginning with the first month after the Date of Commencement, Design-Builder’s Application for Payment in accordance with Article 6 of the General Conditions of Contract.

7.2.2 Owner shall make payment within ten (10) days after Owner’s receipt of each properly submitted and accurate Application for Payment in accordance with Article 6 of the General Conditions of Contract, but in each case less the total of payments previously made, and less amounts properly withheld under Section 6.3 of the General Conditions of Contract.

7.2.3 If Design-Builder’s Fee under Section 6.4 hereof is a fixed amount, the amount of DesignBuilder’s Fee to be included in Design-Builder’s monthly Application for Payment and paid by Owner shall be proportional to the percentage of the Work completed, less payments previously made on account of Design-Builder’s Fee.

7.3 Retainage on Progress Payments.

7.3.1 Starting with the Phase 3 work Owner will retain five percent (5%) of each Application for Payment. Owner will also reasonably consider reducing retainage for Work completed early in the Project. Owner will not withhold retention during the Phase 1 and 2 services.

7.4 [Final Payment. Design-Builder shall submit its Final Application for Payment to Owner in accordance with Section 6.7 of the General Conditions of Contract. Owner shall make payment on DesignBuilder’s properly submitted and accurate Final Application for Payment (less any amount the parties may have agreed to set aside for warranty work) within ten (10) days after Owner’s receipt of the Final Application for Payment, provided that Design-Builder has satisfied the requirements for final payment set forth in Section 6.7.2 of the General Conditions of Contract.

7.5 Interest. Payments due and unpaid by Owner to Design-Builder, whether progress payments or final payment, shall bear interest as provided by California law.

7.6 Record Keeping and Finance Controls. Design-Builder acknowledges that this Agreement is to be administered on an “open book” arrangement relative to Costs of the Work. Design-Builder shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management, using accounting and control systems in accordance with generally accepted accounting principles and as may be provided in the Contract Documents. During the performance of the Work and for a period of three (3) years after Final Payment, Owner and Owner’s accountants shall be afforded access to, and the right to audit from time to time, upon reasonable notice, Design-Builder’s records, books, correspondence, receipts, subcontracts, purchase orders, vouchers, memoranda, and other data relating to the Work, all of which Design-Builder shall preserve for a period of three (3) years after Final Payment. Such inspection shall take place at Design-Builder’s offices during normal business hours unless another location and time is agreed to by the parties. Any multipliers or markups agreed to by Owner and Design-Builder as part of this Agreement are only subject to audit to confirm that such multiplier or markup has been charged in accordance with this Agreement, but the composition of such multiplier or markup is not subject to audit.

Any lump sum agreed to by Owner and Design-Builder as part of this Agreement is not subject to audit. 378
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Article 8
Termination for Convenience

8.1 If Design-Builder is terminated for convenience pursuant to Section 11.6 of the General Conditions of Contract, and the parties have agreed to a payment to Design-Builder in the case of such termination of convenience, Owner shall pay Design-Builder for the following in addition to the amount set forth in Section

11.6.1 of the General Conditions of Contract:

Overhead and profit in the amount of six percent (6%) on the sum of items set forth in Section

11.6.1 of the General Conditions of Contract.

8.2 In addition to the amounts set forth in Section 8.1 above and Section 11.6.1 of the General Conditions of Contract, Design-Builder shall be entitled to receive one of the following if the parties agree to an additional payment:

8.2.1 If Owner terminates this Agreement prior to commencement of construction, DesignBuilder shall be paid six percent (6%) of the remaining balance of the Contract Price or, if a GMP has not been established, the remaining balance of the most recent estimated Contract Price.

8.2.2 If Owner terminates this Agreement after commencement of construction, Design-Builder shall be paid six percent (6%) of the remaining balance of the Contract Price or, if a GMP has not been established, the remaining balance of the most recent estimated Contract Price.

Article 9
Representatives of the Parties

9.1 Owner’s Representatives.

9.1.1 Owner designates the individual listed below as its Senior Representative (“Owner’s Senior Representative”), which individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract: (Identify individual’s name, title, address, and telephone numbers.)

9.1.2 Owner designates the individual listed below as its Owner’s Representative, which individual has the authority and responsibility set forth in Section 3.4 of the General Conditions of Contract: (Identify individual’s name, title, address, and telephone numbers.)

9.2 Design-Builder’s Representatives.

9.2.1 Design-Builder designates the individual listed below as its Senior Representative (“Design-Builder’s Senior Representative”), which individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract:
(Identify individual’s name, title, address, and telephone numbers.)

9.2.2 Design-Builder designates the individual listed below as its Design-Builder’s Representative, which individual has the authority and responsibility set forth in Section 2.1.1 of the General Conditions of Contract: (Identify individual’s name, title, address, and telephone numbers.)
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Article 10
Bonds and Insurance

10.1 Insurance. Design-Builder and Owner shall procure the insurance coverages set forth in the Insurance Exhibit attached hereto and in accordance with Article 5 of the General Conditions of Contract.

10.2 Bonds and Other Performance Security. Upon approval of the Phase 3 price and acceptance of the Phase 3 proposal by Owner, Design-Builder shall provide Payment and Performance bonds for the full amount of the accepted Phase 3 proposal.

Article 11
Other Provisions

11.1 Other provisions, if any, are as follows: (Insert any additional provisions.)

11.2 Listing of Exhibits and documents incorporated herein:

Exhibit A – Scope of Services
DBIA Document No. 535, Standard Form of General Conditions of Contract Between Owner and Design-Builder (2022 Edition) ("General Conditions of Contract") Contract Price Amendment, if any.

Any claims, disputes, or controversies between the parties arising out of or related to the Agreement, or the breach thereof, which have not been resolved in accordance with the procedures set forth in Section 10.2 of the General Conditions of Contract shall be resolved in a court of competent jurisdiction in the state in which the Project is located. [Section 2.9.1 of the General Conditions of Contract contains an option for the parties to establish a limited time frame for the Design-Builder’s warranty. If the parties agree to such a limited time frame, the parties may insert it below.] The parties have agreed to limit the time frame that Owner can make a claim pursuant to Section

2.9.1 of the General Conditions of Contract. Owner must make all claims pursuant to Section 2.9.1 of the General Conditions of Contract within One __________________ years of the date of Final Completion of the Project.

Article 12
Limitation of Liability

12.1 Limitation. To the fullest extent permitted by law, and notwithstanding any other provision of this Agreement, the total liability, in the aggregate, of Design-Builder, its Design Consultants, and Subcontractors, surety (if any) and their respective officers, directors, employees, and agents, and any of them, to Owner and anyone claiming by, through, or under Owner, for any and all claims, losses, liabilities, costs, or damages whatsoever arising out of, resulting from, or in any way related to, the Project or this Agreement from any cause, including but not limited to the negligence, indemnity, professional errors or omissions, strict liability, breach of contract, or warranty (express or implied) shall not exceed 50______ percent (50%) of the Contract Price. The parties agree that specific consideration has been given by Design-Builder for this limitation and that it is deemed adequate. 380
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In executing this Agreement, Owner and Design-Builder each individually represents that it has the necessary financial resources to fulfill its obligations under this Agreement, and each has the necessary corporate approvals to execute this Agreement, and perform the services described herein.

OWNER: DESIGN-BUILDER:
______________________________
(Name of Owner) (Name of Design-Builder)
(Signature) (Signature)
(Printed Name) (Printed Name)
(Title) (Title)
Date: Date:

Caution: An original DBIA document has this caution printed in blue. This is a printable copy and an original assures that changes will not be obscured as may occur when documents are reproduced.
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(202) 682-0110
[email protected]
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4524 Salida Blvd Salida, CA 95368 (209) 545-1987 www.woodlandconstruction.net 5116037.1
OLCC - Oakley Library and Community Center
EXHIBIT A.1 - GENERAL CONTRACTOR SCOPE OF

SERVICES
September 15, 2025
PHASE 1 – VALIDATION (CONCEPT DESIGN)

1. Project management services

2. Estimating and budgeting services

3. Office clerical and billing services

4. Legal and contracts administration

5. Procure initial civil site survey as required to proceed to detailed plan development in phase 2

6. Solicit design build proposals from subcontractors for the following trades:
a. Electrical
b. Mechanical
c. Plumbing
d. Fire Protection Systems

7. Solicit and finalize all architectural and engineering fees required for Phase 2

8. Obtain owner review and approval on scope and cost of items 6 and 7 above prior to proceeding to phase 2
PHASE 2 – DETAILED DESIGN THROUGH PERMITTING

1. Project management support of meetings and design reviews as required

2. Estimating and budgeting services throughout the design cycle

3. Legal and contract administration as required to proceed to phase 3

4. Conduct estimating and bidding of the construction phase

5. Assemble detailed Guaranteed Maximum Price (GMP) Schedule of Values for the Construction Phase, and conduct open-book bid review with owner

6. Assemble a proposal for the GMP for the current proposed agreed upon scope

7. Assemble detailed construction schedule for the agreed upon scope of the project

8. Amend the contract to perform phase 3 under a fixed price with stipulated sum contract basis

9. Obtain owner approval to proceed with the construction phase under the agreed upon GMP proposal

10. Secure necessary permits and bonds as required for construction

11. Facilitate utility application and fees with owner
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4524 Salida Blvd Salida, CA 95368 (209) 545-1987 www.woodlandconstruction.net 5116037.1
PHASE 3 – Construction

1. Manage and complete all construction of the proposed agreed upon scope in adherence to the Lump Sum GMP price reflected in the final executed addendum to this contract

2. Procure all necessary materials, equipment and furnishings in order to deliver the agreed upon scope of work

3. Obtain all necessary inspections, and approvals needed for completion of the project

4. Perform commissioning and closeout of the construction phase

FEE SUMMARY
Woodland Construction Fee Summary For Phase 1
Billed as accrued, on a not to exceed basis
Task Rate QTY
Maximum To Not
Exceed
Project Management $165 per hour 80 hours $13,200.00
Estimating $145 per hour 72 hours $10,440.00
Office/clerical/Contracts Administration
Allowance (Consultants as billed)
$90/hr Office
& Clerical
Not To
Exceed $8,500.00
Architectural Design Fees (see below
breakdown) $204,785.00
General Contractor OHP 6% $14,215.00
NOT TO EXCEED TOTAL $251,140.00
Siegel & Strain Fee Summary for Phase 1 (included in total above) Task Rate QTY
Maximum To Not
Exceed
Architectural fee $119,275.00
Interior design consultant $18,000.00
Civil consultant $28,000.00
Landscape consultant $21,000.00
Library programing consultant $18,000.00
Reimbursable Expenses $510.00
Total $204,785.00
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EXHIBIT A.2 - ARCHITECTURAL SCOPE OF SERVICES
PHASE 1 – VALIDATION (CONCEPT DESIGN)
Task 1 – Validation (Concept Design) (3 to 4 months)

1. Subtasks:

1.1 Project Start-up:
● Establish communication protocols, develop design team project plan and schedule
● Review available existing documents including site surveys, as-built drawings, geotechnical reports, feasibility studies, technical studies, Contra Costa County Library Design Standards, Example Contra Costa County Library Lease Agreement and all other provided documents and project information.

1.2 Project Leadership and Stakeholders Identification and Meetings: With City’s input, identify groups and individuals who are to be engaged in the spatial programming and design process. At the writing of this scope, the groups, their representatives, responsibilities, and engagement have been identified as follows (and forms the basis of our engagement efforts):

Project Leadership Team
● Members: City Manager, Assistant City Manager, Public Works Director ● Responsible for overall project direction and decisions, project management, and specifically direction related to the community center aspects (building program and design).
● Bi-weekly progress meetings plus direct communications with individual team members as needed to advance the project.

Design Steering Committee
● Members: Project Leadership Team (see above) plus representatives from the Contra Costa County Library (CCCL) including County Librarian, Deputy County Librarian, Library Services Manager and Oakley Library Manager. (Note 385
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that others from CCCL including Deputy County Librarian for Technical Services, Library IT and Collection Development Manager will be engaged as needed.) ● Responsible for providing direction related to library services and operations, and those of the community center; project vision, mission and goals; spatial program for the building and site; and input on evolving design. ● Up to (4) programming and concept design meetings during this initial Validation Phase.
● Direct communications as needed for specific project background and spatial programming information.

Council Subcommittee
● Members: (2) City of Oakley Council Members plus Project Leadership Team ● City Council Members responsible for attending monthly project progress meetings with Project Leadership Team, providing input on design and process, and keeping the City Council apprised of the project progress. ● Up to (3) Progress meetings with Council Subcommittee Project Stakeholders
● Friends of the Oakley Library, Oakley Youth Advisory Council, and the local Oakley veterans group.
● Responsibilities include attending small informational meetings with the Design Team. (We will schedule meeting(s) directly with the Friends group. We’ll attend one of the pre-scheduled Youth Advisory Council monthly meetings and one of the veterans’ breakfast meetings.)

1.3 Community Engagement Process: Work with the City to define the community engagement strategy that best aligns with the project needs for rollout in Phase 2 during the Schematic Design effort. The approach discussed with the Project Leadership Team is to conduct up to three engagement events with the same content at different locations in Oakley for input on the evolving project design.

1.4 Existing Site Conditions Documentation
● Visit the site to familiarize with the existing conditions. ● Prepare site analysis diagrams indicating opportunities and constraints. ● Produce topographic utility, and boundary surveys.
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1.5 Vision, Mission, Goals and Spatial Program, developed in collaboration with City & CCCL.
● Collect background information related to library and community center services and operations, and prepare an Oakley Library Background & Assessment Report. This report will include vision and mission statements; service and project goals; relevant aspects of operating agreement between City and Library; existing and anticipated usage of the Library & Community Center; current and anticipated service and program offerings; and staffing considerations.
● Based on the collected background information, prepare a detailed Building and Site Spatial Program that articulates the space requirements for the new Oakley Library & Community Center. This document will describe the types of uses and activities to be accommodated in the new building, their area requirements and occupancy loads, desired adjacencies, qualities and special requirements (lighting, power, technology, acoustics). The document will cover including but not limited to:
○ User groups and collections for Adults, Young Adults, Youth, Preschool Children, Toddlers and their parents/care providers ○ Collection handling, processing, shelving requirements and desires ○ Staffing spaces related to and including: public service interaction; workroom, equipment and breakroom requirements; deliveries ○ Furnishings: seating, tables, shelving, display systems, etc. ○ Public access computers and equipment
○ Meeting, gathering and flex spaces for library and city programs, gatherings, events
○ Access including after library hours
○ Displays and exhibits
● The process for gathering information for goal setting and the spatial program includes meetings with City and Library staff and stakeholders as described above in Subtask 1.2.
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1.6 Conceptual Design
● Based on the information gathered in the previous subtask, prepare a conceptual design, documented in site plan, floor plan, and simple 3D renderings, for a project with indication of space for the possibility of future expansion.
● Review and advance the preliminary design based on input from the Project Leadership Team, the Design Steering Committee, and the Council Subcommittee.
● Conceptual design cost estimate (by Builder). Assist Builder to develop an initial construction cost estimate.

1.7 Preliminary Regulatory & Code Analyses, and Approval Process ● Summarize zoning regulations including allowable uses, setbacks, height limits, parking requirements and any other zoning considerations. ● Conduct and summarize a preliminary building code analysis. ● Host a roundtable meeting with City Agencies to review applicable codes and interpretations, review procedures, associated costs, and review periods. ● Document approval process and submittal requirements for required reviews.

1.8 Budget Confirmation (by Builder): Assist Builder establish an initial project budget that includes all anticipated project costs including soft, permitting, utility-related, construction, and FF&E costs.

1.9 Schedule Development (by Builder): Assist Builder to develop a detailed project schedule for project through completion.

1.10 Owner’s Project Criteria Document: This task concludes with the definition and documentation of the Owner’s Project Criteria. This document will serve as the foundation for the project scope in subsequent phases. The City of Oakley Project Leadership Team must approve this document, including the vision, mission, and goals statements, the detailed spatial program, and the conceptual design, before advancing the project to the next phase.

2. Required from the City:
● Existing Documents
● Attendance at meetings and responses to requests in a timely manner 388
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3. Deliverables:
● Topographic, Utility, and Boundary Surveys
● Site Analysis Diagrams
● Program document including Vision, Mission, and Goals Statements and a detailed Building and Site Spatial Program
● Conceptual Design as documented in diagrams, site plan, floor plan, and 3D renderings
● Preliminary Regulatory & Code Analyses, and Approval Process documented ● Owner’s Project Criteria (written in conjunction with the City and Builder) ● BY BUILDER: Project budget and schedule

4. Meeting Summary:
● Project Oversight Meetings - (12) Bi-Weekly virtual meetings with Project Leadership Team
● Library & Community Center Operations and Detailed Spatial Program - (4) virtual Work Sessions with Design Steering Committee
● (3) Progress meetings with Council Subcommittee - (2) virtual, (1) in-person meetings
● (1) each Informational in-person interviews/meetings with the Friends of the Oakley Library, Youth Advisory Council, local veterans group ● Up to (3) meetings with city departments and local agencies to review conceptual design, and confirm requirements and approval process - (2) virtual, (1) in-person meetings
● Information gathering, review, and confirmation meetings and communications to complete tasks and deliverables

INFORMATION BELOW PRELIMINARY & PROVIDED FOR INFORMATION ONLY PHASE 2 – DETAILED DESIGN THROUGH PERMITTING
Note, the scope listed below is preliminary and will be refined as we progress through Phase 1. Phases 2 and 3 scopes will be submitted for approval towards the conclusion of the previous phase.

Task 2 – 30% Design (Schematic Design) (TBD months)
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1. Subtasks:
● Meet with the City to review comments on Phase 1 Pre-Design Documents and Owner’s Project Criteria.
● Stakeholder Engagement Implementation: Implement the Stakeholder engagement strategy as defined in Phase 1.
○ (3) Community Engagement Meetings
○ Additional informational meetings with groups such as the Veterans and Youth Advisory Group as needed
○ Present Preferred Conceptual Design to the City Council ● Develop a Preliminary Energy Model, testing various options. Review results with the City.
● Prepare 30% Design Documents, including:
○ Site Plan locating major features
○ Grading Plan
○ Utility Plan
○ Building Plans
○ (3) 3D renderings
○ Structural framing diagram
○ Systems (MEP) diagrams
○ Regulatory & Code Analysis
○ Draft Basis of Design Document
■ Project Goals
■ Performance requirements
■ Proposed materials, assembly descriptions
■ Proposed System descriptions
● Submit 30% Design Documents to the City
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2. Deliverables:
● 30% Design Documents

3. Meeting Summary:
● City Council to present the preferred Conceptual Design ● Pre-Design Report comment review
● Energy Model review meeting
● Conduct collaborative meetings and workshops with the City and Stakeholders.
○ Process TBD
○ (3) Community Engagement Meetings
● Ongoing coordination and progress meetings
Task 3 – 60% Design (Design Development) (TBD months)
Advance design to 60% Design level. Fix and describe size and character of the architecture together with structural, mechanical, and electrical.

1. Tasks:
● Meet with the City to review 30% Design and City comments ● Design Workshops
● Develop design of building and related site improvements. 60% Design Documents to include:
○ Architectural Plans
○ Regulatory & Code Analysis Plans
○ Site Demolition Plan
○ Grading & Utility Plans
○ Stormwater Management Plan
○ Landscape Site Plans
○ Mechanical Plans
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○ Plumbing Plans
○ Lighting Plans
○ Low voltage plans for technology system, security system cabling infrastructure, and fire alarm system components.
○ Outline Specifications
○ Cut sheets for major equipment & fixtures
○ Cost Estimate
○ Final Basis of Design Document
■ Project Goals
■ Performance requirements
■ Proposed materials, assembly descriptions
■ Proposed System descriptions
● Submit 60% Design documents to the City
● Planning Approvals: Coordinate and submit required documents to secure planning approvals.

2. Deliverables:
● 60% Design Documents

3. Meeting Summary:
● 30% Design comment review
● Design Workshops
● Meet with Planning agencies to review comments
● Ongoing coordination and progress meetings
Task 4 –90% Design (Construction Documents) (TBD months) Prepare contract documents used to permit and bid.

Drawings prepared in Revit; specifications in MS Word.
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1. Tasks:
● Develop site and building design to 90% Design level (Permit Submittal / Bid Set)
○ Meet with the City to review 60% Design documents and City comments
○ Prepare 90% Design Documents, including:
■ Update to 60% Design documents
■ Cal Green checklist
■ Title 24 Documentation
○ Submit permit documents for review by the City
○ Submit permit documents for review by AHJ
○ Respond to up to 2 rounds of plan check comments
● Design team to Assist Builder in obtaining a successful bid, including:
○ Manage Design Team through bidding process
○ Attend bid walk, organized by PM
○ Respond to Bidder Requests for Information (RFIs)
○ Issue Addenda

2. Deliverables:
● 90% Design, Drawings and Specifications (Permit Submittal / Bid Set) ○ Final permit applications and supporting design documents

3. Meeting Summary:
● 60% Design Comment Review
● Pre-permit submittal meetings with Regulatory Agencies (up to 2) ● Plan Check comment review meeting (up to 2, if needed) ● Bid Walk
393
Exhibit A – Scope of Services 09/15/2025
Oakley Library and Community Center page 12
4524 Salida Blvd Salida, CA 95368 (209) 545-1987 www.woodlandconstruction.net 5116037.1
● Meetings with the City to present the GMP proposal
● Ongoing coordination and progress meetings
Task 5 – 100% Design (Construction Documents) (TBD months) Prepare contract documents used to construct.

1. Tasks:
● Develop site and building design to 100% Design level ○ Incorporate Permit comments & City comments into Construction Documents
○ Prepare 100% Design documents, including:
■ Update to 90% Design documents
○ Submit 100% Design Documents to the City
● Assist Builder in securing necessary permits

2. Deliverables:
● 100% Design Documents, Drawings and Specifications

3. Meeting Summary:
● 90% Design comment review
● Ongoing coordination and progress meetings
PHASE 3 – CONSTRUCTION
Note, The scope listed below for this phase is preliminary and will be refined as we progress through Phase 1 and Phase 2.

Task 6 – Construction (TBD months)

1. Tasks:
● Design Team tasks during construction include:
○ Attend pre-construction Meeting
○ Construction meetings and site observations
394
Exhibit A – Scope of Services 09/15/2025
Oakley Library and Community Center page 13
4524 Salida Blvd Salida, CA 95368 (209) 545-1987 www.woodlandconstruction.net 5116037.1
○ Review shop drawings and submittals
○ Review change orders
○ Prepare RFI responses
○ Prepare Supplemental Instructions
○ Issue Field Notes
○ Attend Punch list walks
○ Review and approve punch lists
● Design Team tasks during close-out include:
○ Review contractor provided as-built drawings for all disciplines ○ Prepare As-Built drawings and documentation based on contractor markups
○ Review Operations and Manual submittals for accuracy and completeness

2. Deliverables:
● As-Built drawings

3. Meeting Summary:
● Pre-construction Meeting
● Construction Meetings
Service Exclusions
The following are excluded from the scope of services:

1. Overall project management beyond the S&S consultant team

2. Furniture, fixtures and equipment (FF&E)

3. Report by a Certified Access Specialist, CASp

4. Permit submission fees

5. Hazardous material testing, report, or abatement
395
Exhibit A – Scope of Services 09/15/2025
Oakley Library and Community Center page 14
4524 Salida Blvd Salida, CA 95368 (209) 545-1987 www.woodlandconstruction.net 5116037.1

6. Structural anchorage and vibration calculations

7. Geotechnical, geological, or soils testing or reports

8. Arborist report

9. Pest and Termite inspection and report

10. Fire Sprinkler detailed design

11. Security system detailed design

12. Fire alarm detailed design

13. Construction staking

14. Division 0 - Front-end documents including the following typically included in a Project Manual: Introductory Information, Bidding Requirements, Instructions to Bidders, Contracting Requirements

15. Division 1 Specifications

16. Regulatory Application submittal forms, fees and permits

17. CEQA documents and professional evaluations required by CEQA

18. Signage beyond that required by code
Additional Services
The following are excluded from the scope of services, but maybe provided as an additional service:

19. LEED documentation and submission for LEED certification or other building rating systems

20. Meetings and site visits in excess of those indicated in the Scope above

21. Project phasing (i.e phased construction documentation)

22. Value Engineering the project after contractor bid

23. Life cycle cost analysis

24. Planning entitlements documentation and process are not included in the design scope nor are traffic and acoustic studies that may be required for entitlements

25. Commercial kitchen design
396
Exhibit A – Scope of Services 09/15/2025
Oakley Library and Community Center page 15
4524 Salida Blvd Salida, CA 95368 (209) 545-1987 www.woodlandconstruction.net 5116037.1

26. Elevator design

27. Acoustical analysis or design beyond that required for designing interior wall and ceiling assemblies

28. Certified Access Specialist (CASp) evaluation

29. Specialty waterproofing and building enclosure engineering

30. Design of new electrical service or generator system

31. Energy modeling, thermal comfort, and daylighting analysis beyond that listed in this scope

32. Photovoltaic System Design and Battery Energy Storage System (BESS)

33. Reconciliation of cost estimates with cost estimates by others 2025 Hourly Billing Rates
Principal ................................................................. $285 Senior Architect/Designer ............................. $180-$220 Architect/Designer........................................ $165-$180 Junior Architect/Designer ............................. $115-$165 Support Staff .................................................... $90-$130 Overhead is included in these rates. Administrative time of support staff is only billed for services on a project.

Reimbursable Expenses
Reimbursable expenses are not included in our professional fees and are an additional charge.

We bill the following reimbursable expenses at our invoice cost times 1.05:
● Reproduction, plotting and handling of drawings and specifications ● Travel expenses (mileage rate is $.70 per mile)
● Delivery expenses
Direct Job Costs
397
Exhibit A – Scope of Services 09/15/2025
Oakley Library and Community Center page 16
4524 Salida Blvd Salida, CA 95368 (209) 545-1987 www.woodlandconstruction.net 5116037.1
Other direct job costs, such as consultants (structural engineering and the like), fees paid for securing approvals of authorities having jurisdiction over the project, and models or renderings requested by the Owner, are also billed at direct costs times 1.05 unless you contract for them directly.

Payment
Projects are typically billed monthly, and payment is due within 30 days from the date of architect’s invoice. Amounts unpaid 30 days after the invoice date shall bear late payment penalty at the rate of 1.5% per month. Siegel & Strain Architects prefers electronic payment via Automate Clearing House (ACH). Please email [email protected] to set up the electronic payment process. Alternatively, make checks payable to Siegel & Strain Architects, 6201 Doyle Street, Suite B, Emeryville, CA 94608.
*Billing rates are subject to change January 2026.
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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.

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.

6. Limited Warranty. DBIA warrants 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 not 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 may 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 be 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 for 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 agreement, 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 any proposal or prior agreement, oral or written, and any other communications between the parties relating to the subject matter of this agreement.
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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

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 NonDBIA
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 counsel. Moreover, care should also be taken when using different editions of the DBIA Standard Form Document on the same project to ensure consistency.

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.

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. 401
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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 DesignBuilder 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

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 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 an 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 delivery 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. 402
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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.

9.4.3 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 Prevailing Party
Fees
The prevailing party in any arbitration, or any other final, binding dispute proceeding upon which the parties may agree, 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, reasonable 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 software 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. 403
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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............................................................................................... 24 404
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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 (2024 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 (2024 Edition); DBIA Document No. 544, Standard Form of Progressive Design-Build Agreement (2024 Edition); or DBIA Document No. 545, Standard Form of Progressive Design-Build Agreement for Water and Wastewater Projects (2024 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 DesignBuild 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 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.

1.2.4 Day or Days shall mean calendar days unless otherwise specifically noted in the Contract Documents.

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

1.2.6 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 by anyone under contract to Design Consultant, to furnish design services required under the Contract Documents.

1.2.7 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. 405
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1.2.8 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.

1.2.9 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.

1.2.10 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).

1.2.11 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.

1.2.12 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 1.3 of DBIA Document No. 544, Progressive Design-Build Agreement, or DBIA Document No. 545, Progressive Design-Build Agreement for Water and Wastewater Projects.

1.2.13 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.

1.2.14 Legal Requirements are all applicable federal, state and local laws, 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.

1.2.15 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 DesignBuilder’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.

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

1.2.17 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.

1.2.18 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.

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

1.2.20 Work is comprised of all Design-Builder’s design, construction and other services required by the Contract Documents, including procuring and furnishing all materials, equipment, services and labor reasonably inferable from the Contract Documents. 406
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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 Option 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 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 407
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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 DesignBuilder’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, diagrams 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 and 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, 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 Submissions, 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 Documents, 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 results in a design that is inconsistent with or otherwise gives 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 408
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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, DesignBuilder 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.

2.5.2 The Contract Price and/or Contract Time(s) shall be adjusted to compensate DesignBuilder 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 quasigovernment entity having jurisdiction over the Project.

2.6.2 Design-Builder shall provide reasonable assistance to Owner in obtaining those 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. Design409 DBIA Document No. 535 Page 6
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Builder shall at all times 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 Documents. 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, trash 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, 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 construction, 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 DesignBuilder’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 Documents, 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 safetyrelated matters involving the Project or the Work. 410
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2.8.3 Design-Builder’s responsibility for safety under this Section 2.8 is not 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 all 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. If the parties have opted in Section ___ of the Agreement to establish a limited time frame for the warranty set forth in this Section, the warranty in this section shall be limited to the time frame set forth in Section ____ of the Agreement. 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 portion 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 conformance 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 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 correction of such nonconforming Work with its own forces. If Owner does perform such corrective Work, DesignBuilder 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 DesignBuilder’s performance of its obligations under the Contract Documents. 411
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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 Design-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.

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 evidence 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 412
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errors, omissions 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 contractually 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 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, Owner shall take the necessary measures required to ensure that the Hazardous Conditions are remediated or rendered harmless. Such necessary measures shall include Owner retaining qualified independent experts to (i) ascertain whether Hazardous Conditions have actually been encountered, and, if they have been encountered, (ii) prescribe the remedial measures that Owner must take either to remove the Hazardous Conditions or render the Hazardous Conditions 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 with 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 presence of Hazardous Conditions.

4.1.5 To the fullest extent permitted by law, Owner shall indemnify, defend and hold harmless Design-Builder, Design Consultants, Subcontractors, anyone employed directly or indirectly by any of them, and their officers, directors, employees and agents, from and against any and all claims, losses, damages, liabilities and expenses, including reasonable attorneys’ fees and expenses, arising out of or resulting from the presence, removal or remediation of Hazardous Conditions at the Site.
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4.1.6 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 fullest 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 and expenses, 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 recognized as inherent in the Work, are collectively referred to herein as “Differing Site Conditions.” If DesignBuilder 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 Design-Builder is responsible for procuring and maintaining the insurance for the coverage amounts all as set forth in the Insurance Exhibit to the Agreement. Coverage shall be secured from insurance companies authorized to do business in the state in which the Project is located, and with a minimum rating set forth in the Agreement.

5.1.2 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.

5.1.3 Prior to commencing any construction services hereunder, Design-Builder shall provide Owner with certificates evidencing that (i) all insurance obligations required by the Contract Documents are in full force and in effect and will remain in effect for the duration required by the Contract Documents; and (ii) no insurance coverage will be canceled, renewal refused, or materially changed unless at least thirty (30) days’ prior written notice. If any of the foregoing insurance coverages are required to remain in force after final payment is reasonably available, an additional certificate evidencing continuation of such coverage shall be submitted with the Final Application for Payment. If any information concerning reduction of coverage is not furnished by the insurer, it shall be furnished by Design-Builder with reasonable promptness according to Design-Builder’s information and belief.

5.2 Owner’s Liability Insurance.

5.2.1 Owner shall procure and maintain from insurance companies authorized to do business in the state in which the Project is located such liability insurance as set forth in the Insurance Exhibit to the Agreement to protect Owner from claims which may arise from the performance of Owner’s obligations under the Contract Documents or Owner’s conduct during the course of the Project. 414
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5.3 Owner’s Property Insurance.

5.3.1 Unless otherwise provided in the Contract Documents, Owner shall procure and maintain from insurance companies authorized to do business in the state in which the Project is located property insurance upon the entire Project to the full insurable value of the Project, including professional fees, overtime premiums and all other expenses incurred to replace or repair the insured property. The property insurance obtained by Owner shall be the broadest coverage commercially available, and shall include as additional insureds the interests of Owner, DesignBuilder, Design Consultants and Subcontractors of any tier. Such insurance shall include but not be limited to the perils of fire and extended coverage, theft, vandalism, malicious mischief, collapse, flood, earthquake, debris removal and other perils or causes of loss as called for in the Contract Documents. The property insurance shall include physical loss or damage to the Work, including materials and equipment in transit, at the Site or at another location as may be indicated in DesignBuilder’s Application for Payment and approved by Owner. Owner is responsible for the payment of any deductibles under the insurance required by this Section 5.3.1.

5.3.2 Unless the Contract Documents provide otherwise, Owner shall procure and maintain boiler and machinery insurance that will include the interests of Owner, Design-Builder, Design Consultants, and Subcontractors of any tier. Owner is responsible for the payment of any deductibles under the insurance required by this Section 5.3.2.

5.3.3 Prior to Design-Builder commencing any Work, Owner shall provide Design-Builder with certificates evidencing that (i) all Owner’s insurance obligations required by the Contract Documents are in full force and in effect and will remain in effect until Design-Builder has completed all of the Work and has received final payment from Owner; and (ii) no insurance coverage will be canceled, renewal refused, or materially changed unless at least thirty (30) days’ prior written notice is given to Design-Builder. Owner’s property insurance shall not lapse or be canceled if Owner occupies a portion of the Work pursuant to Section 6.6.3 hereof. Owner shall provide DesignBuilder with the necessary endorsements from the insurance company prior to occupying a portion of the Work.

5.3.4 Any loss covered under Owner’s property insurance shall be adjusted with Owner and Design-Builder and made payable to both of them as trustees for the insureds as their interests may appear, subject to any applicable mortgage clause. All insurance proceeds received as a result of any loss will be placed in a separate account and distributed in accordance with such agreement as the interested parties may reach. Any disagreement concerning the distribution of any proceeds will be resolved in accordance with Article 10 hereof.

5.3.5 Owner and Design-Builder waive against each other and Owner’s separate contractors, Design Consultants, Subcontractors, agents and employees of each and all of them, all damages covered by property insurance provided herein, except such rights as they may have to the proceeds of such insurance. Design-Builder and Owner shall, where appropriate, require similar waivers of subrogation from Owner’s separate contractors, Design Consultants and Subcontractors and shall require each of them to include similar waivers in their contracts. These waivers of subrogation shall not contain any restriction or limitation that will impair the full and complete extent of its applicability to any person or entity unless agreed to in writing prior to the execution of this Agreement.

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 security, 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 qualified and registered to conduct business in the state in which the Project is located.
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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 schedule 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 Payment. 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 equipment 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 Subcontractors, Sub-Subcontractors, and suppliers to DesignBuilder for early payment shall accrue one hundred percent to Design-Builder to the extent DesignBuilder 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 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, the 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. 416
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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 Right to Stop Work and Interest.

6.4.1 If Owner fails to pay timely Design-Builder any undisputed amount that becomes due, Design-Builder, in addition to all other remedies provided in the Contract Documents, may stop Work pursuant to Section 11.3 hereof. All payments due and unpaid shall bear interest at the rate set forth in the Agreement.

6.5 Design-Builder’s Payment Obligations.

6.5.1 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 to 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.

6.6 Substantial Completion.

6.6.1 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 of 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.

6.6.2 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.

6.6.3 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) DesignBuilder and Owner have obtained the consent of their sureties and insurers, 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 DesignBuilder’s completion of the remaining Work.

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:
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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 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.

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 hereafter 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.

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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 harmless 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 Tax Claim Indemnification.

7.2.1 If, in accordance with Owner’s direction, an exemption for all or part of the Work is claimed for taxes, Owner shall indemnify, defend and hold harmless Design-Builder from and against any liability, penalty, interest, fine, tax assessment, attorneys’ fees or other expenses or costs incurred by Design-Builder as a result of any action taken by Design-Builder in accordance with Owner’s directive. Owner shall furnish Design-Builder with any applicable tax exemption certificates necessary to obtain such exemption, upon which Design-Builder may rely.

7.3 Payment Claim Indemnification.

7.3.1 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 Owner 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.

7.4 Design-Builder’s General Indemnification.

7.4.1 Except as set forth in Section 7.4.2 below, Design-Builder, to the fullest extent permitted by law, shall indemnify, hold harmless and defend Owner, its officers, directors, and employees from and against claims, losses, damages, liabilities, including attorneys’ fees and expenses, for non-party bodily injury, sickness or death and non-party property damage or destruction (other than to the Work itself) but only to the extent resulting from the negligent acts or omissions of DesignBuilder, Design Consultants, Subcontractors, anyone employed directly or indirectly by any of them or anyone for whose acts any of them may be liable.

7.4.2 For indemnity obligations that arise from professional errors and omissions, DesignBuilder, to the fullest extent permitted by law, shall indemnify Owner, its officers, directors, and employees from and against claims, losses, damages, liabilities, including attorneys’ fees and expenses, for non-party bodily injury, sickness, or death and non-party property damage or destruction (other than to the Work itself) but only to the extent resulting from the negligent acts or omissions of Design-Builder, Design Consultants, Subcontractors, anyone employed directly or indirectly by any of them or anyone for whose acts any of them may be liable.

7.4.3 If an employee of Design-Builder, Design Consultants, Subcontractors, anyone employed directly or indirectly by any of them or anyone for whose acts any of them may be liable has a claim against Owner, its officers, directors, employees, or agents, Design-Builder’s indemnity obligations set forth in Sections 7.4.1 and 7.4.2 above shall not be limited by any limitation on the amount of damages, compensation or benefits payable by or for Design-Builder, Design Consultants, Subcontractors, or other entity under any employee benefit acts, including workers’ compensation or disability acts.
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7.5 Owner’s General Indemnification.

7.5.1 Owner, to the fullest extent permitted by law, shall indemnify, hold harmless and defend Design-Builder and any of Design-Builder’s officers, directors, and employees, from and against claims, losses, damages, liabilities, including attorneys’ fees and expenses, for bodily injury, sickness or death, and property damage or destruction (other than to the Work itself) but only to the extent resulting from the negligent acts or omissions of Owner, Owner’s separate contractors or anyone for whose acts any of them may be liable.

7.6 Limited Recourse.

7.6.1 None of the obligations set forth in this Agreement (on behalf of any party) constitute personal obligations of any natural persons who are the officers, shareholders, members, partners, employees, or agents of any party unless the natural person is expressly identified as a contracting party. All Parties to this Agreement shall not seek recourse against any natural person described herein. This provision, however, shall not protect such natural persons from liability for willful misconduct, illegal acts or intentional violation of any duty of corporate loyalty.

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 Site 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 420
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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.

9.2 Work Change Directives.

9.2.1 A Work Change Directive is a written order 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 changes 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 421
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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 interpretations, 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 express understanding that (i) such payment by Owner does not prejudice Owner’s right to argue that it has no responsibility to pay for such services; and (ii) receipt of such payment by Design-Builder does not prejudice DesignBuilder’s right to seek full payment 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 determined 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 specific 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 occurrence 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 disputes 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 Design-Builder and Owner will first attempt to resolve disputes or disagreements at the field level through discussions between Design-Builder’s Representative and Owner’s Representative which shall conclude within fourteen (14) days of the written notice provided for in Section 10.1.1 unless Owner and Design-Builder mutually agree otherwise.

10.2.3 If a dispute or disagreement cannot be resolved through Design-Builder’s Representative and Owner’s Representative, Design-Builder’s Senior Representative and Owner’s Senior 422
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Representative, upon the request of either party, shall meet as soon as conveniently possible, but in no case later than thirty (30) days after such a request is made, to attempt to resolve such dispute or disagreement. Five (5) days prior to any meetings between the Senior Representatives, the parties will exchange relevant information that will assist the parties in resolving their dispute or disagreement.

10.2.4 If after meeting the Senior Representatives determine that the dispute or disagreement cannot be resolved on terms satisfactory to both parties, the parties shall submit within thirty (30) days of the conclusion of the meeting of Senior Representatives the dispute or disagreement to non-binding mediation. The mediation shall be conducted by a mutually agreeable impartial mediator, or if the parties cannot so agree, a mediator designated by the American Arbitration Association (“AAA”) pursuant to its Construction Industry Mediation Rules. The mediation will be governed by and conducted pursuant to a mediation agreement negotiated by the parties or, if the parties cannot so agree, by procedures established by the mediator. Unless otherwise mutually agreed by Owner and Design-Builder and consistent with the mediator’s schedule, the mediation shall commence within ninety (90) days of the submission of the dispute to mediation.

Representatives of the parties with authority to resolve the dispute shall be present at any mediation.

10.3 Arbitration.

10.3.1 Any claims, disputes or controversies between the parties arising out of or relating to the Agreement, or the breach thereof, which have not been resolved in accordance with the procedures set forth in Section 10.2 above, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the AAA then in effect, unless the parties mutually agree otherwise.

10.3.2 The award of the arbitrator(s) shall be final and binding upon the parties without the right of appeal to the courts. Judgment may be entered upon it in accordance with applicable law by any court having jurisdiction thereof.

10.3.3 Design-Builder and Owner expressly agree that any arbitration pursuant to this Section

10.3 may be joined or consolidated with any arbitration involving any other person or entity (i) necessary to resolve the claim, dispute or controversy; or (ii) substantially involved in or affected by such claim, dispute or controversy. Both Design-Builder and Owner will include appropriate provisions in all contracts they execute with other parties in connection with the Project to require such joinder or consolidation.

10.3.4 The prevailing party in any arbitration, or any other final, binding dispute proceeding upon which the parties may agree, shall be entitled to recover from the other party reasonable attorneys’ fees and expenses incurred by the prevailing party. The prevailing party, if any, shall be determined by the applicable binding dispute tribunal.

10.4 Duty to Continue Performance.

10.4.1 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 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.
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10.5.2 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. Such suspension shall not exceed sixty (60) consecutive days or aggregate more than ninety (90) days during the duration of the Project.

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 of 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 provide 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, 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 Guaranteed Maximum Price, Design-Builder will only be entitled to be paid for Work performed 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 424
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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 Design-Builder’s Right to Stop Work.

11.3.1 Design-Builder may, in addition to any other rights afforded under the Contract Documents or at law, stop the Work for the following reasons:

11.3.1.1 Owner’s failure to provide financial assurances as required under Section 3.3 hereof; or

11.3.1.2 Owner’s failure to pay amounts properly due under Design-Builder’s Application for Payment.

11.3.2 Should any of the events set forth in Section 11.3.1 above occur, Design-Builder has the right to provide Owner with written notice that Design-Builder will stop the Work unless said event is cured within seven (7) days from Owner’s receipt of Design-Builder’s notice. Design-Builder shall not stop work unless it provides such written notice and Owner has failed to cure the reason for default within the seven (7) day cure period. If Owner does not cure the problem within such seven (7) day period, Design-Builder may stop the Work. In such case, Design-Builder shall be entitled to make a claim for adjustment to the Contract Price and Contract Time(s) to the extent it has been adversely impacted by such stoppage.

11.4 Design-Builder’s Right to Terminate for Cause.

11.4.1 Design-Builder, in addition to any other rights and remedies provided in the Contract Documents or by law, may terminate the Agreement for cause for the following reasons:

11.4.1.1 The Work has been stopped for sixty (60) consecutive days, or more than ninety (90) days during the duration of the Project, because of court order, any government authority having jurisdiction over the Work, or orders by Owner under Section 11.1.1 hereof, provided that such stoppages are not due to the acts or omissions of Design-Builder or anyone for whose acts Design-Builder may be responsible.

11.4.1.2 Owner’s failure to provide Design-Builder with any information, permits or approvals that are Owner’s responsibility under the Contract Documents which result in the Work being stopped for sixty (60) consecutive days, or more than ninety (90) days during the duration of the Project, even though Owner has not ordered Design-Builder in writing to stop and suspend the Work pursuant to Section 11.1.1 hereof.

11.4.1.3 Owner’s failure to cure the problems set forth in Section 11.3.1 above after Design-Builder has stopped the Work.

11.4.2 Upon the occurrence of an event set forth in Section 11.4.1 above, Design-Builder may provide written notice to Owner that it intends to terminate the Agreement unless the problem cited is cured, or commenced to be cured, within seven (7) days of Owner’s receipt of such notice. If Owner fails to cure, or reasonably commence to cure, such problem, then Design-Builder may give a second written notice to Owner of its intent to terminate within an additional seven (7) day period.

If Owner, within such second seven (7) day period, fails to cure, or reasonably commence to cure, such problem, then Design-Builder may declare the Agreement terminated for default by providing written notice to Owner of such declaration. In such case, Design-Builder shall be entitled to recover in the same manner as if Owner had terminated the Agreement for its convenience under Article 8 of the Agreement.
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11.5 Bankruptcy of Owner or Design-Builder.

11.5.1 If either Owner or Design-Builder institutes or has instituted against it a case under the United States Bankruptcy Code (such party being referred to as the “Bankrupt Party”), such event may impair or frustrate the Bankrupt Party’s ability to perform its obligations under the Contract Documents. Accordingly, should such event occur:

11.5.1.1 The Bankrupt Party, its trustee or other successor, shall furnish, upon request of the non-Bankrupt Party, adequate assurance of the ability of the Bankrupt Party to perform all future material obligations under the Contract Documents, which assurances shall be provided within ten (10) days after receiving notice of the request; and

11.5.1.2 The Bankrupt Party shall file an appropriate action within the bankruptcy court to seek assumption or rejection of the Agreement within sixty (60) days of the institution of the bankruptcy filing and shall diligently prosecute such action.

If the Bankrupt Party fails to comply with its foregoing obligations, the non-Bankrupt Party shall be entitled to request the bankruptcy court to reject the Agreement, declare the Agreement terminated and pursue any other recourse available to the non-Bankrupt Party under this Article 11.

11.5.2 The rights and remedies under Section 11.5.1 above shall not be deemed to limit the ability of the non-Bankrupt Party to seek any other rights and remedies provided by the Contract Documents or by law, including its ability to seek relief from any automatic stays under the United States Bankruptcy Code or the right of Design-Builder to stop Work under any applicable provision of these General Conditions of Contract.

11.6 Termination for Convenience.

11.6.1 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:

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

11.6.1.2 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

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

11.6.2 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 426
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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 respect 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.

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 transmitted 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 limited 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 pursuant 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.
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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 proprietary nature and: (i) the transmitting party identifies as either confidential or proprietary; (ii) the transmitting party takes steps to maintain the confidential or proprietary nature 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 shall, 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.

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, or 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 428
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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. 429
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Resolution No. XX-25 Page 1 of 1
RESOLUTION NO. XX-25

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OAKLEY

ESTABLISHING A LIBRARY AND COMMUNITY CENTER PROJECT SPECFIC

SUB-COMMITTEE FOR THE DESIGN-BUILD PHASE OF THE PROJECT WHEREAS, the City Council has determined that a Library and Community Center project specific Sub-committee with tasks centered around public outreach and concept design would be beneficial to the City at this current time; and NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Oakley, that the Library and Community Center project specific Sub-committee is hereby established.

The City Council has appointed ____________ and _____________ to serve on the committee; and
BE IT FURTHER RESOLVED that the committee shall end on June 30, 2026, if not extended prior to that date.

PASSED AND ADOPTED by the City Council of the City of Oakley this 23rd day of September 2025 by the following vote:

AYES:

NOES:

ABSTENTION:

ABSENT:

APPROVED:
___________________
Shannon Shaw, Mayor
ATTEST:
____________________ ________
Kim Snodgrass, City Clerk Date
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STAFF REPORT
CITY HALL | 3231 Main Street, Oakley, CA 94561
O (925) 625-7000 | F (925) 625-9859 | www.oakleyca.gov
DATE: September 23, 2025
TO: Joshua McMurray, City Manager
FROM: Ken Strelo, Community Development Director
SUBJECT: Interview and Appoint Three Applicants to the Planning Commission for Four-Year Terms 10/12/2025 through 10/11/2029
Background and Analysis
At the July 13, 2021, City Council Meeting, the City Council adopted Ordinance No. 06-21, which amended and updated the Municipal Code establishing the five-member Planning Commission. The current Planning Commission consists of two two-year term seats which expire February 28, 2027, and three four-year term seats which expire October 11, 2025.

The goal of the City Council is to have all five seats be four-year staggered terms.

One way to shift all seats to staggered four-year terms would be to interview and appoint three Applicants to four-year terms. When the two-year terms expire in 2027, those terms could then switch to four-year terms and would expire in 2031, 2035 etc. and the other three seats would expire in 2029 and every four years after, giving the staggering. This is consistent the method considered in February of 2025 when the current two-year term seats were appointed.

Recruitment for the three expiring seats began August 11, 2025, as of the application deadline at 5:00 PM on September 11, 2025, seven applications were received.

Staff recommends the City Council interview and appoint three applicants to the Planning Commission for four-year terms beginning October 12, 2025 and ending October 11, 2029.

The order for interviews was determined by the order in which the applications were received.

Consistency with the Oakley Strategic Plan 27+
This agenda item is consistent with the Strategic Plan 27+’s Community and Collaborative Partnerships Goal and specifically supports the Sub-Goal of Community Outreach and Engagement by increasing our communication and engaging our residents.

Fiscal Impact
None
Approved and
Forwarded to the
City Council
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STAFF REPORT
CITY HALL | 3231 Main Street, Oakley, CA 94561
O (925) 625-7000 | F (925) 625-9859 | www.oakleyca.gov
Staff Recommendation
Staff recommends the City Council adopt the proposed Resolution, appointing three Planning Commissioners to four-year terms running from October 12, 2025 through October 11, 2029.

Attachments

1. Planning Commissioner Applications (7 total)

2. Proposed Resolution
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OAKLEY
-�-

CALIFORNIA

PLANNING COMMISSION APPOINTMENT APPLICATION
The City of Oakley is seeking applications to fill three expiring seats on the Planning Commission for four-year terms beginning on October 13, 2025, and ending October 12, 2029.

The City of Oakley Planning Commission is comprised of five members, appointed by the City Council. All members of the Planning Commission must be Oakley residents.

The Planning Commission conducts Public Hearings on all Planning land use entitlements, either as the adopting body or serving as a recommendation body to the City Council, depending on the type of application. Entitlements subject to adoption by the Planning Commission include tentative parcel maps, conditional use permits, and design reviews Meetings are regularly scheduled for the first and third Tuesdays of each month in-person at the City Hall Council Chambers located at 3231 Main Street, Oakley, CA 94561. Meetings begin at 6:30 p.m. A second meeting will only be held when necessary.

Applications will be accepted from Monday, August 11 through Thursday, September 11, 2025, at 5:00 p.m.

Upon appointment, commissioners will be required to file a Conflict-of-Interest disclosure statement, complete two hours of certified Ethics Training (in accordance with AB 1234) and two hours of certified Anti-Harassment Training (in accordance with AB 1661). The selected Commissioners should be prepared to attend the League of California Cities Planning Commissioners Academy in Anaheim, California, from March 11 through March 13, 2026. The City of Oakley will cover the costs of the academy and related travel expenses.

For additional information please contact Kim Snodgrass, City Clerk, at {925) 625-7013 or snodgrass@ci .oa kley.ca. us.
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3. Please describe your education, work and other experiences that would qualify you for the position of Planning Commissioner.

I hold a MBA with an emphasis in Finance and multiple project management certifications, I have over 30 years of experience in leadership, project management, and operations across public and private sectors. My work includes managing multi-site teams, vendor relations, election operations, and community engagement. I have also served as a program and project manager for municipal-level projects, providing me with direct experience in planning, budgeting, and stakeholder coordination, These experiences have equipped me with analytical and organizational skills necessary to review complex development proposals and contribute meaningfully to city planning decisions.

4. Please describe the professional preparation or expertise that you would bring to this position, if any.

I bring extensive experience in program management, including strategic planning, operational oversight, budget management and regulatory compliance. I have led cross-functional teams, coordinated with local agencies, and implemented processes that ensure efficient project execution. Additionally, my background in finance and analytics allows me to evaluate proposals from both technical and community impact perspectives. I am skilled in fostering collaboration among diverse stakeholder a critical component of effective planning and development oversight.

5. What do you believe is the most important role of a Planning Commissioner? The most important role of a Planning Commissioner is to ensure that development decisions align with the city's long term vision and community values. This includes reviewing proposals critically, balancing economic growth with quality of life, ensuring compliance with zoning and regulatory standards, and considering the impact on residents, infrastructure, and the environment. Commissioners also serve as a bridge between the community and city leadership, representing residents' interest while supporting sustainable growth and responsible planning. 447

6. What do you hope to accomplish in your role as a Planning Commissioner, if selected?
I hope to contribute to a well-planned, sustainable, and vibrant Oakley by providing strategic insight and careful evaluation of development proposals. My goal is to enhance community engagement in planning processes, support projects that strengthens neighborhoods, and advocate for responsible growth that balances housing, business, infrastructure, and recreational needs I aim to ensure that planning decisions are transparent, data-driven, and reflective of residents' priorities.

7. Having been a resident of Oakley, what do you see as the strengths of the community? Conversely, what are its weaknesses?
Strengths: Oakley benefits from a strong sense of community, active participation in local events, and family-oriented neighborhoods.

The city's parks, schools, and recreational programs are notable assets, providing an excellent quality of life.

Weaknesses: As Oakley continues to grow, challenges include managing infrastructure demands, balancing residential and commercial development, and ensuring that growth remains sustainable . There is also an opportunity to increase community engagement in planning and decision making processes.

8. Are you currently serving as an appointed or elected member of any local or regional government agency that includes any portion of Oakley City limits within its jurisdictional territory?
No
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9. Have you previously served on any board or commission for Oakley or any other government agency?
No, although I have extensive experience in civic engagement, public administration, and municipal project management that has provided exposure to government decision making processes.

10. Are you or have you been involved in any local, civic or community groups? Yes, I am actively involved in my daughters' youth tennis programs, serving as a volunteer coach and organizer. Additionally, I have participated in community outreach initiatives related to public health and civic engagement, including voter outreach and local program support.

11. Please provide any additional relevant comments.

I bring a unique combination of professional expertise and personal commitment to Oakley. My background in program and project management, coupled with strong analytical, financial, and leadership skills allows me to contribute meaningfully to planning decisions. I am dedicated to promoting balanced growth, community engagement, and sustainable development, ensuring that Oakley remains safe, vibrant, and thriving community for families, businesses, residents. 449

The City of Oakley Planning Commission is comprised of five members, appointed by the City Council. All members of the Planning Commission must be Oakley residents.

The Planning Commission conducts Public Hearings on all Planning land use entitlements, either as the adopting body or serving as a recommendation body to the City Council, depending on the type of application. Entitlements subject to adoption by the Planning Commission include tentative parcel maps, conditional use permits, and design reviews Meetings are regularly scheduled for the first and third Tuesdays of each month in-person at the City Hall Council Chamberslocated at 3231 Main Street, Oakley, CA 94561. Meetings begin at 6:30 p.m. A second meeting will only be held when necessary.

Applications will be accepted from Monday, August 11 through Thursday, September 11, 2025, at 5:00 p.m.

For additional information please contact Kim Snodgrass, City Clerk, at (925) 625-7013 or [email protected].
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Application
Please type or print clearly on this application or attach typed responses and return it to the City Clerk’s Office via email to [email protected], by mail or in person at 3231 Main Street, Oakley, California 94561. Applications will be accepted until Thursday, September 11, 2025, at 5:00 p.m.

All information contained in this application is public data and will be made available for public review and copying for anyone requesting it and may be posted on the website of the City of Oakley. All information in this application will be provided to the Oakley City Council in a public forum and will be reviewed in public. It will therefore be part of the public record. Although you are not legally required to provide any of the information requested in this application, the information may be used to determine your suitability for appointment to the committee.

Casey Vigil
Name:

Home Address:

Phone Number:

E-Mail Address:

This appointment will be for a four-year term.

1. How long have you lived in the City of Oakley? 6 years

2. Briefly explain why you would like to serve on the Planning Commission.

I would like to serve on the planning commission because I believe that our community deserves someone who is willing to listen to their needs and deliver it with the intentions of insuring all of our citizens voices are heard in terms of planning what is next for our town's development.

Our town is changing rapidly; growth is inevitable. It needs to be done in a manner that recognizes Oakley's past, present and future. I think that I can be of service in that aspect. 451

3. Please describe your education, work and other experiences that would qualify you for the position of Planning Commissioner.

I have an Associates in Liberal Arts.

I am a realtor
I have over 20 years of experience working in education

4. Please describe the professional preparation or expertise that you would bring to this position, if any.

I have over 20 years of experience in education. My problem solving skills and ability to adapt quickly are superb.

I am a real estate agent, so land development and the best way to use the land is my profession.

5. What do you believe is the most important role of a Planning Commissioner? The most important role of a Planning Commissioner is making sure our tax dollars are going towards projects that we, the citizens of Oakley, can agree that is best for our town. This is not about politics this is about accountability, transparency and understanding the wants and needs of our tax-paying citizens. Yes, change needs to happen to our town as it grows, but we need to make sure that the changes reflect our morals, values and standards that is at the core of Oakley's rich family-oriented history. 452

6. What do you hope to accomplish in your role as a Planning Commissioner, if selected?
If selected I hope that my role as Planning Commissioner will instill trust in the citizens and restore unity in Oakley.

I know that everyone will not be excited for everything we propose, but I at least want them to feel proud to live here.

Also, I want to be a voice for the people who were not born and raised here. We chose to live here.

There was reason why we chose to live here, we all wanted to call this play home and we love it here.

I hope to be the bridge between the people who have lived here their entire lives and those who chose to live here.

7. Having been a resident of Oakley, what do you see as the strengths of the community? Conversely, what are its weaknesses?
Strengths- This is a place where children can fish, play and roam freely. Oakley provides parks and recs for everyone Our town is newer, so there is opportunity for people who haven't lived here forever to come in embrace the future and technology.

Weakness- Local businesses do not support local schools. Freedom deserves more support from everywhere.

The land by Emerson Ranch is getting another gas station and car wash. We were promised Safeway. We didn't get that.

We have storages, gas stations, and car washes on every single corner. We do not have many places to shop and eat.

8. Are you currently serving as an appointed or elected member of any local or regional government agency that includes any portion of Oakley City limits within its jurisdictional territory?
no
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9. Have you previously served on any board or commission for Oakley or any other government agency?
no

10. Are you or have you been involved in any local, civic or community groups? no

11. Please provide any additional relevant comments.
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The City of Oakley Planning Commission is comprised of five members, appointed by the City Council. All members of the Planning Commission must be Oakley residents.

The Planning Commission conducts Public Hearings on all Planning land use entitlements, either as the adopting body or serving as a recommendation body to the City Council, depending on the type of application. Entitlements subject to adoption by the Planning Commission include tentative parcel maps, conditional use permits, and design reviews Meetings are regularly scheduled for the first and third Tuesdays of each month in-person at the City Hall Council Chamberslocated at 3231 Main Street, Oakley, CA 94561. Meetings begin at 6:30 p.m. A second meeting will only be held when necessary.

Applications will be accepted from Monday, August 11 through Thursday, September 11, 2025, at 5:00 p.m.

For additional information please contact Kim Snodgrass, City Clerk, at (925) 625-7013 or [email protected].
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3. Please describe your education, work and other experiences that would qualify you for the position of Planning Commissioner.

I hold two undergraduate degrees in Sociology, Anthropology, and History, and a Master's in Museum Studies. My career has been devoted to strengthening communities through the arts, civic engagement, philanthropy, and environmental work. I began at major institutions such as the De Young and the Legion of Honor, and then pivoted to community-focused work at The San Francisco Foundation, where we partnered closely with the mayors of San Francisco, Oakland, and San Jose to fund and implement programs that created safer, more walkable, and more vibrant neighborhoods. More recently, my work in the environmental sector has deepened my understanding of how urban development and design can reduce car dependence, promote sustainability, and create spaces where people gather and build lasting connections. Throughout my career, I have been mentored by civic leaders across private, public, and governmental institutions, shaping my approach to building strong, inclusive communities.

4. Please describe the professional preparation or expertise that you would bring to this position, if any.

My expertise lies in community engagement, data-driven decision-making, and consensus building. I bring experience in convening diverse stakeholders, balancing competing priorities, and aligning long-term vision with immediate needs. My work across the arts, philanthropy, and environmental sectors has given me a systems-level perspective on how planning decisions ripple across economic, cultural, and environmental outcomes. I am particularly skilled at helping translate community values into actionable strategies that make neighborhoods more connected, sustainable, and desirable places to live.

5. What do you believe is the most important role of a Planning Commissioner? The most important role of a Planning Commissioner is to be a steward of the community's long-term vision. This means balancing growth and development with the responsibility to preserve Oakley's character, sustainability, and inclusivity. Equally important is listening to residents and ensuring that decisions reflect community values while also preparing Oakley to thrive for future generations. 462

6. What do you hope to accomplish in your role as a Planning Commissioner, if selected?
If selected, I hope to help Oakley become a model for suburban development that prioritizes community, sustainability, and livability. First, I want to support the continued updates to downtown and encourage unique shops and vendors that create a strong sense of place. Second, I see an opportunity to add a secondary community hub and a network of safe walking and biking trails that connect neighborhoods, especially as growth continues along Cypress, reducing reliance on cars and creating safer streets.

Third, I want to ensure that new development respects and preserves the character of Oakley's farms and homesteads, which are an important part of our history and identity.

Finally, as a parent of a young child, I am deeply motivated to help create a community that my child and future generations will love, feel safe in, and thrive in.

7. Having been a resident of Oakley, what do you see as the strengths of the community? Conversely, what are its weaknesses?
The city's dependence on cars is a weakness, with major roads like Laurel, Empire and Cypress functioning as high-speed thoroughfares rather than connectors. I believe Oakley can address this by incorporating more safe and dedicated walking and biking trails that strengthen community ties and improve safety. I am inspired by cities like Georgetown, Atlanta, and Walnut Creek, where parks and walking paths link neighborhoods without requiring cars. Oakley could also grow its cultural identity by encouraging more independent shops, restaurants, and businesses to complement existing options, creating a vibrant community identity. At the same time, as growth continues, it is important to respect Oakley's working lands and rural heritage, ensuring that future development builds on the city's history while preparing for its future.

8. Are you currently serving as an appointed or elected member of any local or regional government agency that includes any portion of Oakley City limits within its jurisdictional territory?
No
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9. Have you previously served on any board or commission for Oakley or any other government agency?
No

10. Are you or have you been involved in any local, civic or community groups?_ Yes. My professional career has centered on building stronger communities through nonprofit, civic, and environmental work. At The San Francisco Foundation, I collaborated with civic leaders to design and fund programs that strengthened local neighborhoods. My current work continues to focus on creating communities that are sustainable, safe, and connected.

11. Please provide any additional relevant comments.

I believe Oakley is at an exciting and defining moment in its growth. My career has given me experience across arts institutions, philanthropy, civic engagement, and environmental sustainability, and I want to bring that perspective to help guide Oakley's future. I am committed to ensuring that Oakley develops into a community that is not only functional but also beautiful, walkable, and deeply connected. A place where families, neighbors, and businesses thrive together.
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Resolution No. XX-25 Page 1 of 1
RESOLUTION NO. XX-25

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF OAKLEY APPOINTING

THREE MEMBERS TO THE OAKLEY PLANNING COMMISSION FOR

FOUR-YEAR TERMS
WHEREAS, on July 13, 2021, the City Council of the City of Oakley adopted Ordinance No. 06-21, which amended provisions of Chapters 3 and 4 of Title 2 of the Oakley Municipal Code concerning the Oakley Planning Commission; and WHEREAS, the City solicited applications for the Planning Commission through a formal application process. The period ran from August 11, 2025 to September 11, 2025.

The City received a total of seven applications; and
WHEREAS, on September 23, 2025, the City Council conducted interviews, ranked the applicants and selected three members to serve four-Year terms on the Planning Commission.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Oakley hereby appoints the following individuals to the Oakley Planning Commission for fouryear terms running from October 12, 2025 through October 11, 2029:
 [Name and Term]
 [Name and Term]
 [Name and Term]
BE IT FURTHER RESOLVED that the City Council of the City of Oakley hereby authorizes City Staff to provide the above-appointed individuals instruction, training materials and assistance prior to the beginning of their terms.

PASSED AND ADOPTED by the City Council of the City of Oakley this 23rd day of September 2025 by the following vote:

AYES:

NOES:

ABSENT:

ABSTENTION:

APPROVED:

Shannon Shaw, Mayor
ATTEST:

Kim Snodgrass, City Clerk Date
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MEMORANDUM
City of Oakley | 3231 Main Street, Oakley, CA 94561
O (925) 625-7000 | F (925) 625-9859 | www.oakleyca.gov
DATE: September 23, 2025
TO: Joshua McMurray, City Manager
FROM: Danielle Navarro, Assistant City Manager
SUBJECT: Provide Direction to Staff Regarding the
Acknowledgement of Indigenous Land
At the May 13, 2025 City Council meeting, Councilmember Fuller requested a Work Session on establishing a policy for acknowledging indigenous land in Oakley.

Councilmember Williams seconded the follow-up request.

The Contra Costa County Office of Education has a Land Acknowledgement Toolkit on their website, which defines a Land Acknowledgement as “a formal statement that recognizes and respects the indigenous peoples as traditional stewards of this land, the enduring relationship that exists between indigenous peoples and their traditional lands. This is an act of conciliation that makes a statement recognizing the traditional land of the indigenous people who have called and still call the land home before and after the arrival of settlers.”
There are different methods of acknowledging indigenous land, including, but not limited to: written statements; verbal statements at meetings and/or events; or a combination of written and verbal statements. Staff researched the current practice in the other 18 cities in Contra Costa County. Two cities formally acknowledge indigenous land:
 The City of Lafayette includes a written Land Acknowledgement on their City Council agendas, in the City’s annual budget document, and on the City’s website. The Acknowledgement is read out loud monthly at the beginning of the City Council meeting, annually at the beginning of the first meeting of each of Lafayette’s four commissions, and at all openings of new City facilities (e.g. parks, buildings, etc.).
 The City of Pinole has a written Land Acknowledgement on their City Council agendas that the Mayor reads out loud at the meetings.

At its April 15, 2025 meeting, the City of Brentwood’s Diversity, Equity, Belonging and Inclusion Committee discussed adopting an official City Land Acknowledgement.

Direction was given to return to the full Council with a proposal for a Land Acknowledgment to be read out loud at every City Council and Planning Commission meeting. As of the time this staff report was written, the item has not been brought to the City of Brentwood City Council.

Staff is seeking direction from the City Council regarding whether and how to proceed.

Approved and
Forwarded to the
City Council
466

STAFF REPORT
481
City of Oakley | 3231 Main Street, Oakley, CA 94561
O (925) 625-7000 | F (925) 625-9859 | www.oakleyca.gov
DATE: September 23, 2025
TO: Hon. Mayor and Members of the City Council
FROM: Derek Cole, City Attorney
SUBJECT: Workshop to Discuss any Proposed Amendments to the Process for Selecting the Mayor and Vice Mayor
Background and Analysis
At its last meeting, during the request for future agenda items portion of the City Council’s agenda, more than two councilmembers requested a workshop to consider any changes to the Council’s current process for selecting the Mayor and Vice Mayor.

In early 2023, the City Council amended the process for selecting its officers to accommodate changes it then believed were needed as part of implementation of by-district elections. The current text of the City Code implementing this new system, which took effect this calendar year, is attached as Exhibit 1.

This new system replaced a prior system that was based on a seniority model. The implementation of by-district elections complicated this system for reasons explained in a workshop staff report this office prepared in January 2023. For reference, that previous staff report is attached as Exhibit 2.

The City Council’s options for converting to any new officer selection system may be limited. This Office retains its concerns about a seniority system for any city council elected by districts. (Those are noted in the attached, previous staff report.) If the Council does not continue its current system—or some modified system based on district rotation—then it appears the only other options would be, as noted in the previous staff report, either (1) a random-selection system, or (2) no set rotational system.

The City Attorney is unable to provide any formal or scientific study of how all California local agencies select their officers. But in his experience, (probably) most follow the latter system. The City Attorney has observed that most do not establish any rotational, randomly-selected, or other set method for selecting officers. Instead, they leave the selection of each year’s officers to the discretion of the council or board. In these systems, governing bodies are free each year to decide whom to select.

Often I have seen these bodies with these systems keep the same officers in place for sake of continuity. Ultimately, the Mayor and Vice Mayors are selected simply based on which councilmembers can secure the necessary motions, seconds, and Approved and
Forwarded to the
City Council
467

STAFF REPORT
4905-9301-6426.1 CITY HALL | 3231 Main Street, Oakley, CA 94561 2 O (925) 625-7000 | F (925) 625-9859 | www.oakleyca.gov
majority votes. Some may assert this system is more “political” than the others, but it allows for maximum flexibility in selection.

In sum, the options for selecting Council officers appear to include (1) choosing based on seniority, (2) district rotation, (3) random selection, or (4) selecting whomever can secure the necessary votes. This office is not aware of other potential options.
(To be sure, I note that some California cities have elected mayors. I exclude discussion of this option because it is something voters would have to approve and would require the City Council be completely redistricted to accommodate four, rather than five, districts.).

Consistency with the Oakley Strategic Plan 27+
The proposed action is consistent with the Sustainable Organization Goal.

Fiscal Impact
There is no fiscal impact associated with this action.

Staff Recommendation
The City Council is requested to give this Office direction regarding any proposed ordinance it would like to consider for amending the process for selecting the Mayor and Vice Mayor. Should the Council give such direction, this Office will be prepared to present an ordinance consistent with the Council’s direction at the first meeting in October. If the Council introduces this ordinance at that meeting, it may be read and enacted at the second meeting that month. As the 30-day “waiting period” before ordinances take effect would conclude in November, the new system could be in place before the City Council selects its officers for 2026.

Attachments

1. Current Text of Oakley Municipal Code § 2.1.003

2. Staff Report, January 10, 2023
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2.1.003 Appointment of Mayor and Vice Mayor Following Implementation of ByDistrict City Council Elections. a. Each year during the month of December, the City Council shall appoint one of its members as Mayor and one of its members as Vice Mayor for the following calendar year. b. Except as provided in paragraph (e) of this Section, the Mayor and Vice Mayor shall be selected based on the number of the City Council district from which each was elected in their immediately preceding City Council elections. The Mayor and Vice Mayor shall be selected based on the rotation schedule stated in paragraphs (c) and (d) of this Section. c. For calendar year 2025, the rotation schedule for selection of Mayor and Vice Mayor shall commence as follows:
1) If the City Council member elected to represent City Council District Five has served for at least the preceding 345 days on the City Council, then the Mayor for that calendar year shall be selected from Council District Five, and the Vice Mayor for that calendar year shall be selected from City Council District Four; or 2) If the member elected to represent City Council District Five has not served at least the preceding 345 days on the City Council, and the member elected to represent City Council District Four has served for at least the preceding 345 days on the City Council, then the Mayor for that calendar year shall be selected from Council District Four, and the Vice Mayor shall be selected from City Council District Three; or 3) If the members elected to represent City Council Districts Four and Five have not served at least the preceding 345 days on the City Council, and the member elected to represent City Council District Two has served for at least the preceding 345 days on the City Council, then the Mayor for that calendar year shall be selected from Council District Two, and the Vice Mayor shall be selected from City Council District One; or 4) If the members elected to represent City Council Districts Two, Four, and Five have not served at least the preceding 345 days on the City Council, and the member elected to represent City Council District Three has served for at least the preceding 345 days on the City Council, then the Mayor for that calendar year shall be selected from Council District Three, and the Vice Mayor shall be selected from City Council District Two.
5) If the members elected to represent City Council Districts Two, Three, Four, and Five have not served at least the preceding 345 days on the City Council, then the Mayor for that calendar year shall be selected from Council District One, and the Vice Mayor shall be selected from City Council District Five. d. For calendar year 2026, and each calendar year thereafter, the Mayor for the calendar year shall be the councilmember who served as the Vice Mayor during the preceding calendar year; and the Vice Mayor for the calendar year shall be selected from the district number that is the next 469
lower-numbered district below the number of district from which the Mayor is selected, except that if the Mayor is selected from City Council District One, the next lower-numbered district shall be deemed to be City Council District Five.
e. A member shall not serve as Mayor if he or she has not previously served on the City Council for at least 345 days preceding the date of selection. In addition, the City Council may decline to appoint a member as Mayor or Vice Mayor if a majority of the City Council determines any of the following circumstances exist:
1) A violation of law or City policy, or has been or is being investigated for a violation of law or of policy;
2) Intemperate, rude, or disparaging remarks or conduct toward the public, staff or City Council;
3) Lack of leadership or communications skills;
4) Excessive absenteeism as a Council member;
5) Any other conduct that would be considered to be unprofessional or unbecoming of the position of Mayor or Vice Mayor;
6) Determination that the person does not have the available time to assume the additional duties of Mayor or Vice Mayor.
f. Should a member be ineligible under paragraph (e) to serve as Mayor, or should a majority of the City Council decline to appoint a member as Mayor or Vice Mayor for any of the reasons stated in paragraph (e), or should the member serving as Mayor or Vice Mayor resign his or her service as Mayor or Vice Mayor during his or her term, the City Council shall by majority vote select another member to fill the position for the calendar year or remainder of that year. The appointment of any member under this paragraph shall not affect, alter, or reset the mayoral and vice-mayoral rotation schedule for future calendar years, as provided in paragraph (d). g. The provisions of this Section shall take effect on December 1, 2024, on which date and thereafter, this Section shall supersede and replace the provisions of Section 2.1.005 of this Code. 470

STAFF REPORT
Approved and Forwarded to the City Council

DATE: January 10, 2023
TO: Joshua McMurray, City Manager
FROM: Derek P. Cole, City Attorney
SUBJECT: Process for Selecting Mayor and Vice-Mayor Following Implementation of District Elections
Background and Introduction
In 2021, the City switched from at-large to by-district elections for city councilmembers.

Two council seats (Districts 2 and 4) were elected by district during the 2022 General Election. The three remaining seats (Districts 1, 3, and 5) will be selected by district in the next General Election in 2024.

The switch to district elections necessitates a change in the way the Mayor and ViceMayor are selected. Currently, the general standard for selecting both positions is that the Vice-Mayor serves as the Mayor during the following year. The Vice Mayor is the person who (1) has the most experience serving on the City Council, and (2) who has not previously served as Vice Mayor. In cases in which two members have equal continuous service, the Oakley Municipal Code provides a tie-breaker: the Vice Mayor is the member who received the most votes at the last election.

Because of the City’s recent transition to district elections, this process for breaking ties as to the Vice-Mayor (and, thus, the following year’s Mayor) is no longer workable.

This is for two reasons. First, it is doubtful that each council district will have an equal, or substantially similar, number of voters in each election. For instance, one district could have 5,000 votes cast for its councilmembers, while another district may have 4,000 votes. The councilmember in the district with the higher votes cast will inherently have a vote-count advantage over the member from the other district.

Second, and relatedly, one district may have fewer candidates than in other districts.

As an example, if one district had two candidates, and assuming 5,000 votes cast, a candidate could win with 2,501 votes. But if there are three candidates in another district, a candidate—who would only need to win by plurality—could win with 1,667 votes (again, assuming 5,000 total votes cast). Accordingly, councilmembers in districts in which fewer candidates run will often have an advantage over other members.
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Because of these systemic problems under the current ordinance (the relevant provisions of which are attached at the end of this staff report), Staff proposes that the Council give direction concerning alternative means of selecting the Vice Mayor (and, thus, the following year’s Mayor).

Analysis
Staff has researched how several other cities handle the issues of tie-breakers for selection of Mayoral and Vice-Mayoral positions. Many cities continue to use the highest-vote method for breaking ties, which for the reasons above, does not seem optimal. Based on Staff’s review, other options for selecting the Vice-Mayor (and the following year’s Mayor) include:

1. Using percentage instead of vote count. Because of the inherent variation in the vote count for districts, the Council could consider using percentage as a tie-breaker. For instance, in a two-candidate district in which 4,000 votes are cast, a candidate who receives 2,500 votes wins 62.5% of the vote. In contrast, a candidate who receives 2,505 votes in a district in which 5,000 votes are cast would receive a greater number of votes, but a lower percentage, 50.001%. In a district-election system, the percentages by which candidates win may be viewed as a better measure of relative strength.

A problem would arise when the number of candidates differs between districts.

In a two-candidate race, the winning candidate will always receive more than 50% of the vote. But in races in which a greater number of candidates run, candidates would only need to win by plurality. It is thus possible that candidates could win with 34% (three candidates), 26% (four candidates), or 21% (five candidates) of the vote.

One potential solution to this problem is to measure the relative difference between only the top two candidates in each district. For example, in a district in which there are three candidates, and 4,000 votes cast, assume the top vote getter receives 2,100 votes and the second place candidate receives 1,800 votes. In this situation, the 100 votes for the third place candidate would be excluded, and the top vote getter would be deemed to have received 53.8% of the vote (2,100 divided by 3,900). If the other Vice-Mayoral candidate ran in a two-candidate district, an applies-to-apples comparison could (arguably) be made.

2. Random selection. Instead of considering relative strength of electoral victories (by vote count or percentage), a random form of selection could be used to break the tie. This could include the drawing of cards, rolling of dice, drawing of lots, or some other method.

3. Discontinue rotation system. Several cities do not have any rotation system for selecting their mayors and vice-mayors. In these cities, candidates may serve in either position without regard to prior service or relative strength of outcomes in previous elections. All councilmembers are eligible each year to serve in 472
either position and they may serve continuous terms with the consent of their fellow councilmembers. The selections for each position are made through the usual motion process.

4. Rotation by district. A rotation system based on district number could also be used. This is probably the simplest system. It would involve each district’s councilmember serving one year every five years. A drawback is that because councilmembers serve for four-year terms, a councilmember could be excluded from serving as Mayor during his or her term. For instance, if the District One councilmember takes office the year following that district serving as Mayor, he or she will not be able to serve as Mayor during his or her term.

Conclusion
Staff will appreciate receiving direction on how the City Council would like to select the Vice Mayor going forward. Once such direction is received, the City Attorney will prepare an ordinance consistent with the direction given. 473

ATTACHMENT
Excerpts from Oakley Municipal Code § 2.1.005
“e. The City Clerk shall establish and keep a "rotation schedule" regarding the City Council members. The member with the most continuous time of service on the Council who has not previously served as Vice Mayor and is not selected Mayor will be selected as Vice Mayor. If two or more members have equal time of continuous service, the member who received the highest number of votes at his/her election shall be selected. The other members with equal time of continuous service will have their rank on the rotation schedule determined by the number of votes that they received at their election, with the member having the higher number of votes receiving higher ranking.
f. When the Mayor completes his/her service as Mayor, he/she shall revert to the bottom of the rotation schedule.
g. If a member was appointed to the City Council, he/she shall be placed at the bottom of the rotation schedule when appointed, and shall continue up the rotation schedule thereafter in the same manner as the other members. h. If a member voluntarily declines appointment as either Mayor or Vice Mayor, he/she shall then rotate to the bottom of the schedule. i. The City Council may decline to appoint a member to serve as Mayor or as Vice Mayor if a majority of the City Council determines that the person has experienced or exhibited any of the following:
1) A violation of law or City policy, or has been or is being investigated for a violation of law or of policy;
2) Intemperate, rude or disparaging remarks or conduct toward the public, staff or City Council;
3) Lack of leadership or communications skills;
4) Excessive absenteeism as a Council member;
5) Any other conduct that would be considered to be unprofessional or unbecoming of the position of Mayor or Vice Mayor;
6) Determination that the person does not have the available time to assume the additional duties of Mayor or Vice Mayor.”
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Oakley City CouncilSeptember 23, 2025

Oakley City Council
September 23, 2025