Paradise City Council
March 12, 2024

It is specifically understood, however, that none of the following shall constitute a “Change in Law”:
(1) Any Change in Law relating to Taxes other than a change in law pertaining to state sales Taxes or tariffs on materials and equipment incorporated in the Project;
(2) A change in the severity of the actions typically taken by a Governmental Body to enforce compliance with Applicable Law that was in effect as of the Contract Date;
(3) Any increase in any fines or penalties provided for under Applicable Law in effect as of the Baseline Date;
(4) Any Change in Law (including the enactment of any statute, or the promulgation of any regulation) the terms and conditions of which do not impose more stringent or burdensome requirements on the Design-Builder than are imposed by the Contract Standards in effect as of the Baseline Date;
(5) Any event that affects generally applicable working conditions or standards that is not specific to the wastewater pipeline construction industry or the Project; or
(6) Acts, events and circumstances with respect to Design-Builder Managed Governmental Approvals to the extent the Design-Builder has assumed the permitting risk under Section 6.5 (Permitting Responsibilities and Schedule). “Change Order” means a written order issued by the Town and agreed to in writing by the Design-Builder prior to Final Completion making a Baseline Design Requirements Change, a Base Guaranteed Maximum Price Adjustment, adjustment to the Scheduled Substantial Completion Date or any other change to the terms and conditions of the Contract Documents. A Change Order shall be deemed to constitute a Contract Amendment. “Chico WPCP” means the City of Chico’s Water Pollution Control Plant. “Chico WPCP Connection” means the sewer pipeline connection from the Export Pipeline System to the Chico WPCP at its Influent Sewer Junction Box A. “Chico WPCP Connection Site” means the site where the Chico WPCP Connection will be located pursuant to the Baseline Design Documents. “City of Chico” means the City of Chico, California, a municipal corporation organized and existing and by virtue of the laws of the State. 247
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“Construction” means that part of the Design-Build Work consisting of the construction of the Project as required by the Contract Documents, including furnishing, installing or incorporating Supplies into the Project.
“Construction Commencement Date” means the date, following satisfaction of the Construction Commencement Date Conditions by the Design-Builder, upon which the Design-Builder shall have the right to proceed with the Construction of the Project, as determined in accordance with Section 6.1(A)(1) (Notice to Proceed). “Construction Commencement Date Conditions” has the meaning specified in Section 6.2(A) (Construction Commencement Date Generally). “Construction Phasing Plan” means the Design-Builder’s plan for Construction sequencing site access, to be developed as part of the Preliminary Services in accordance with the requirements set forth in Appendix 2 (Preliminary Services). “Contaminated Media Management Plan” means the Design-Builder’s plan for the management of contaminated soils and groundwater, to be developed as part of the Preliminary Services in accordance with the Contract Standards and required to comply with CEQA and NEPA in accordance with Section 4.3 (Environmental Review). “Contract Administration Memorandum” has the meaning specified in Section

17.4(B) (Contract Administration Memoranda).
“Contract Amendment” has the meaning specified in Section 17.5(A) (Amendments Generally).
“Contract Compensation” means the Preliminary Services Fees and the DesignBuild Price. “Contract Date” means the date this Design-Build Contract is executed and delivered by the parties hereto.
“Contract Documents” means:
(1) This Design-Build Contract and all Appendices;
(2) Any amendments to the Design-Build Contract including the GMP Amendment and any Early Work Package Amendment;
(3) The Baseline Design Documents;
(4) Any Change Order, Work Change Directive or other Contract Amendment;
(5) Any Notice to Proceed;
(6) Any Contract Administration Memoranda; and
(7) The Issued for Construction Drawings and Specifications. “Contract Obligations” means everything required to be furnished and done for and relating to the Design-Build Work and the Warranty Work pursuant to the Contract Documents.
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“Contract Standards” means the standards, terms, conditions, methods, techniques and practices imposed or required by:
(1) Applicable Law;
(2) The Baseline Design Documents;
(3) The Substantial Completion Standards;
(4) Good Engineering and Construction Practice;
(5) The Insurance Requirements;
(6) All plans required to be developed by the Design-Builder pursuant to the requirements of this Design-Build Contract;
(7) All applicable requirements of the Grants, including all applicable provisions identified in Appendix 12 (Certain Grant Requirements and Guidelines); and (8) the Quality Management Plan;
(9) the Health and Safety Plan;
(10) the Operations and Maintenance Manual; and
(11) Any other standard, term, condition or requirement specifically provided in the Contract Documents to be observed by the Design-Builder.

Section 1.2(R) (Applicability, Stringency and Consistency of Contract Standards) shall govern issues of interpretation related to the applicability, stringency and consistency of the Contract Standards.
“Core Collection System” means the wastewater pipelines (including connections beginning at the property lines and trunkline) for the collection of wastewater from the properties located in the Sewer Service Area to the Export Pipeline System, including all related structures, lift stations, pipes, valves and equipment, as generally described in Appendix 1 (Project and Project Sites) and more particularly described in the Baseline Design Documents, to be designed, constructed, and tested by the Design-Builder in accordance with the Contract Documents.
“Core Collection System Rights of Way” means the right of access to the real property, as generally described in Appendix 1 (Project and Project Sites) and more particularly described in the Baseline Design Documents, on or under which the Core Collection System are to be constructed by the Design-Builder.
“Cost Substantiation” means the process of providing evidence of actual costs in accordance with Section 9.8 (Cost Substantiation).
“Deliverable Material” means the Preliminary Services Deliverable Material and the Design-Build Period Work Deliverable Material.
“Design-Build Contract” means this Design-Build Contract for the Town of Paradise Sewer Project between the Design-Builder and the Town, including the Appendices and all other Contract Documents, as the same may be amended or modified from time to time in accordance herewith.
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“Design-Build Period” means the period from and including the GMP Amendment Date (or with respect to any Design-Build Work authorized pursuant to an Early Work Package Amendment, the applicable Early Work Package Amendment Date) through the date Final Completion is achieved.
“Design-Build Period Costs” has the meaning specified in Appendix 8 (DesignBuild Price). “Design-Build Period Work Health and Safety Plan” means the DesignBuilder’s plan for health and safety in implementing the Design-Build Period Work including related field work, to be developed as part of the Preliminary Services as an update to the Preliminary Services Quality Management Plan in accordance with the requirements set forth in Appendices 2 and 5.
“Design-Build Period Work Quality Management Plan” means the DesignBuilder’s plan for quality assurance and quality control in implementing the Design-Build Period Work, to be developed as part of the Preliminary Services as an update to the Preliminary Services Quality Management Plan.
“Design-Build Period Work” means all Design-Build Work performed by the Design-Builder hereunder on and after (1) the GMP Amendment Date and (2) the Early Work Package Amendment Date in connection with any Early Work Package. “Design-Build Period Work Deliverable Material” means all documents, reports, studies, surveys, computer programs, warranties, manuals, submittals, licenses and other documents and materials required to be delivered by the Design-Builder to the Town in the performance of the Design-Build Period Work pursuant to this Design-Build Contract, including the Final Design Documents.
“Design-Build Period Work Schedule” means the Design-Builder’s critical path method completion schedule for the performance of the Design-Build Period Work, as set forth as an attachment to Appendix 5 (General Design-Build Work Requirements) on the GMP Amendment Date and as updated and maintained by the Design-Builder in accordance with Section 6.1(F) (Design-Build Period Work Schedule and Reports). “Design-Build Price” has the meaning specified in Appendix 8 (Design-Build Price).
“Design-Build Work” means everything required to be furnished and done for and relating to the design and construction of the Project pursuant to the Contract Documents.

Design-Build Work includes the employment and furnishing of all labor, materials, equipment, supplies, tools, scaffolding, transportation, Utilities, insurance, temporary facilities and other things and services of every kind whatsoever necessary for the full performance and completion of the Design-Builder’s design, engineering, permitting, procurement, construction, Testing, and related obligations with respect to the construction of the Project under the Contract Documents, including all completed structures, assemblies, fabrications, acquisitions and installations, all testing, and all of the Design-Builder’s administrative, accounting, recordkeeping, notification and similar responsibilities of every kind whatsoever under the Contract Documents pertaining to such obligations. Design-Build Work includes the Preliminary Services, all work performed pursuant to Early Work Package Amendments, the Design-Build Period Work and the Warranty Work. A reference to Design-Build Work shall mean any part and all of the Design-Build Work unless the context otherwise requires, and shall include all Design-Build Work authorized by Change Order or Work Change Directive. 250
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“Design-Builder” means Mountain Cascade, Inc., a corporation organized and existing under the laws of the State of California, and its permitted successors and assigns. “Design-Builder Contingency” has the meaning specified in Appendix 8 (Design-Build Price).
“Design-Builder Contract Representative” has the meaning specified in Section 17.6(A) (Design-Builder Contract Representative and Senior Supervisors). “Design-Builder Fault” means:
(1) A breach by the Design-Builder of any of its obligations under this Design-Build Contract;
(2) A breach of any representation or warranty made by the Design-Builder under this Design-Build Contract;
(3) Willful misconduct of the Design-Builder or any other Design-Builder Person; or
(4) A negligent act or omission of the Design-Builder or any other DesignBuilder Person. “Design-Builder Fee” has the meaning specified in Appendix 8 (Design-Build Price).
“Design-Builder Managed Governmental Approvals” means the Governmental Approvals other than the Town Managed Governmental Approvals. The Design-Builder Managed Governmental Approvals are those Governmental Approvals for which the DesignBuilder is the application manager, as designated in Appendix 3 (Governmental and NonGovernmental Approvals). [Note: Appendix 3 to be developed as part of the Preliminary Services]
“Design-Builder Managed Non-Governmental Approvals” means the NonGovernmental Approvals other than the Town Managed Non-Governmental Approvals. The Design-Builder Managed Non-Governmental Approvals are those Non-Governmental Approvals for which the Design-Builder is the application manager, as designated in Table A3-2 in Appendix 3 (Governmental and Non-Governmental Approvals). [Note: Appendix 3 to be developed as part of the Preliminary Services]
“Design-Builder Person” means each of the following:
(1) The Design-Builder;
(2) Any director, officer, employee or agent of the Design-Builder in each case acting as such;
(3) Any Subcontractor and any representative, advisor (including any legal and financial advisor) of the Design-Builder, in any such person’s capacity as a provider of services directly or indirectly to the Design-Builder in connection with the Project; and
(4) Anyone for whose acts any of the foregoing may be legally or contractually liable in connection with this Design-Build Contract, including officers, directors, employees, representatives, agents, consultants, and contractors. 251
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“Design Professional Services” means that part of the Design-Build Work consisting of the preparation of plans, drawings and specifications for the Project by licensed professional engineering, architectural and land surveying firms, as well as all other services required to be performed by licensed design professionals as part of the Design-Build Work for the design and engineering of the Project, including professional engineering, architectural and land surveying services.
“Design Professional Services Firm” means any person providing Design Professional Services.
“Differing Site Conditions” means (a) actual subsurface or latent physical subsurface conditions along the Core Collection System Rights of Way, along the Export Pipeline System Rights of Way or at the Transition Chamber Site or the Flow Control and Metering Structure Site that differ materially from those indicated in the Reference Documents or those documents prepared by the Design-Builder as part of the Preliminary Services (including the Basis of Design Report), or (b) unknown physical subsurface conditions of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inherent in work of the character required herein; provided, however, that the term “Differing Site Conditions” excludes: (1) conditions of which the Design-Builder had actual or constructive knowledge as of the Baseline Date (including through review of the Reference Documents and those documents prepared by the Design-Builder as part of the Preliminary Services as well as conditions that are evident from the location, topography and nature of the Project Sites); and (2) conditions that should have been discovered through a reasonable investigation performed prior to the Baseline Date and through the geotechnical, hydrogeology, and contaminated soil and water management work required to be performed by the DesignBuilder as part of the Preliminary Services. “Document Management Plan” means the Design-Builder’s plan for document management in implementing the Preliminary Services and the Design-Build Period Work to be developed as part of the Preliminary Services in accordance with Appendix 2 (Preliminary Services).
“Drawings” means drawings, diagrams, illustrations, schedules and other data that show the scope, extent, and character of the Design-Build Work, as prepared by or on behalf of the Design-Builder.
“Early Work Package” has the meaning specified in Section 5.6(A) (Early Work Packages).
“Early Work Package Amendment” has the meaning specified in Section 5.6(A) (Early Work Packages).
“Early Work Package Amendment Date” means the date that an Early Work Package Amendment is executed and delivered by the parties. “Early Work Package Price” means the price established in any Early Work Package for the portion of the Design-Build Work to be performed thereunder. “Early Work Package Submittal” has the meaning specified in Section 5.6(A) (Early Work Packages).
“Encumbrances” means any Lien, lease, mortgage, security interest, charge, judgment, judicial award, attachment or encumbrance of any kind with respect to the Project. 252
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“Engineer-of-Record” means the professional engineer licensed in the State in good standing who is designated by the Design-Builder and acceptable to the Town, acting reasonably, as the engineer responsible for the preparation, signing, dating, sealing and issuing of the engineering documents relating to all or a portion of the Design-Build Work. “EPA” means the United States Environmental Protection Agency and any successor agency.
“Environmental Mitigation Measures” means any environmental mitigation measures set forth in, or required in connection with, a Governmental Approval. “Event of Default” means, with respect to the Design-Builder, those items specified in Section 12.2 (Events of Default by the Design-Builder) and, with respect to the Town, those items specified in Section 12.5 (Events of Default by the Town). “Expiration Date” means the last day of the Warranty Period. “Export Pipeline System” means the 18-mile-long export pipeline system to convey wastewater from the Core Collection System to the Chico WPCP, including all related structures, pipes, valves and equipment, as generally described in Appendix 1 (Project and Project Sites) and more particularly described in the Baseline Design Documents, to be designed, constructed, and tested by the Design-Builder in accordance with the Contract Documents. The Export Pipeline System will include the Ridge Gravity Section, the Gravity Force Main Section, the Transition Chamber and the Flow Control and Metering Structure. “Export Pipeline System Rights of Way” means the right of access to the real property, as generally described in Appendix 1 (Project and Project Sites) and more particularly described in the Baseline Design Documents, on or under which the Export Pipeline System are to be constructed by the Design-Builder.
“Extension Period” means 60 days following the Scheduled Substantial Completion Date.
“Fees and Costs” means reasonable fees and expenses of employees, attorneys, architects, engineers, expert witnesses, contractors, consultants and other persons, and costs of transcripts, printing of briefs and records on appeal, copying and other reimbursed expenses, and expenses reasonably incurred in connection with investigating, preparing for, defending or otherwise appropriately responding to any Legal Proceeding. “Federal Agencies” means (a) the California Department of Housing and Urban Development; (b) the California Department of Housing and Urban Development; and (c) the California State Water Resources Control Board.
“Federal Highway Administration Requirements” means the written and oral requirements of Federal Highway Administration regarding construction of the Project below Highway 99.
“Final Completion” means completion of the Design-Build Work, including all construction of the Project, in compliance with the Contract Documents and the requirements of Section 8.4 (Final Completion).
“Final Design Documents” means the Design-Builder’s plans, technical specifications, drawings, record drawings and other design documents prepared following the GMP Amendment Date (or in connection with any Early Work Package, the applicable Early Work Package Amendment Date) in connection with the Design-Build Period Work, including:
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(1) Specifications, Drawings and all other work product generated through the performance of the Design Professional Services following the establishment of the Baseline Design Documents; and
(2) All technical criteria, written descriptions and design data necessary for obtaining Governmental Approvals and performing Construction, such as shop drawings, product data and samples whether or not such documents are required to be prepared by licensed design professionals.
“Flow Control and Metering Structure” means a structure and equipment located therein for the flow control and metering of wastewater, located at or near the Chico WPCP, including all related structures, pipes, valves and equipment, as generally described in Appendix 1 (Project and Project Sites) and more particularly described in the Baseline Design Documents, to be designed, constructed, and tested by the Design-Builder in accordance with the Contract Documents.
“Flow Control and Metering Structure Site” means the site where the Flow Control and Metering Structure will be located pursuant to the Baseline Design Documents. “General Conditions Costs” has the meaning specified in Appendix 8 (DesignBuild Price). “General Conditions Fee” has the meaning specified in Appendix 8 (DesignBuild Price). “Geotechnical Baseline Report” means the report so designated to be prepared by the Design-Builder pursuant to Preliminary Services set forth in Appendix 2 (Preliminary Services).
“Geotechnical Evaluation Report” means the report so designated to be prepared by the Design-Builder pursuant to Preliminary Services set forth in Appendix 2 (Preliminary Services).
“GMP Amendment” has the meaning specified in Section 5.8(B) (Negotiation and Execution of the GMP Amendment).
“GMP Amendment Date” has the meaning specified in Section 5.8(B) (Negotiation and Execution of the GMP Amendment).
“GMP Submittal” has the meaning specified in Section 5.7 (GMP Submittal). “GMP Submittal Design Level” means the design of the Project progressed to a level sufficient to permit the Design-Builder to provide the GMP Submittal, to be agreed to by the parties during the performance of the Preliminary Services and to be described in an amendment to Appendix 2 (Preliminary Services) by a Subsequent Preliminary Services Phase Preliminary Services Amendment and in any event not later than the last Subsequent Preliminary Services Phase Preliminary Services Amendment. “Good Engineering and Construction Practice” means (a) with respect to the design and engineering services performed by the Design-Builder under this Design-Build Contract, those methods, techniques, standards and practices which, at the time they are to be employed and in light of the circumstances known or reasonably believed to exist at such time, are generally recognized and accepted as meeting the prevailing standard of care ordinarily used by members of the subject profession, having experience with projects similar in scope and complexity and practicing in the State, and (b) with respect to equipping, installation, 254
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construction, commissioning and testing services performed by the Design-Builder under this Design-Build Contract, those methods, techniques, standards and practices which, at the time they are to be employed and in light of the circumstances known or reasonably believed to exist at such time, are generally recognized and accepted as good equipping, installation, construction, commissioning and testing practices as observed for water and sewer pipelines, as followed in the State.
“Governmental Approval” means any permit, license, authorization, consent, certification, exemption, ruling, entitlement or approval issued by a Governmental Body of whatever kind and however described, which is required under Applicable Law to be obtained or maintained by any person with respect to the Design-Build Work, including any Town Managed Governmental Approvals and Design-Builder Managed Governmental Approvals. “Governmental Approval Application Date” means the applicable date set forth in the Governmental and Non-Governmental Approvals Table. “Governmental and Non-Governmental Approvals Table” means Table A3-1 and A3-2 of Appendix 3 (Governmental and Non-Governmental Approvals) to be developed by the Design-Builder as part of the Phase 1a Preliminary Services in accordance with Appendix 2 (Preliminary Services). [Note: To be completed as part of the Phase 1a Base Preliminary Services.]
“Governmental Body” means any federal, State, Town, regional or local legislative, executive, judicial or other governmental board, department, agency, authority, commission, administration, court or other body (including the Town, acting in its governmental capacity other than as a party to this Design-Build Contract), or any official thereof, having jurisdiction in any way over or in respect of any aspect of the performance of this Design-Build Contract or the Project.
“Grant Requirements” means the written requirements of the Grants relating to the Preliminary Services and the Design-Build Work, including all applicable provisions identified in Appendix 12 (Certain Grant Requirements and Guidelines). As of the Contract Date, the written requirements of any California State Water Resources Control Board grants have not yet been established and therefore are not yet reflected in Appendix 12 (Certain Grant Requirements and Guidelines). The parties intend to update Appendix 12 (Certain Grant Requirements and Guidelines) by Contract Amendment once such written requirements have been established.
“Granting Agencies” means (a) the California Department of Housing and Urban Development; (b) the California Department of Housing and Urban Development; and (c) the California State Water Resources Control Board. “Grants” means (a) the $30,000,000 Community Development Block Grant – Disaster Recovery grant from the California Department of Housing and Urban Development; and (b) the $200,000,000 Community Development Block Grant – Disaster Recovery grant from the California Department of Housing and Urban Development, approximately $15,000,000 of which will be used to pay all amounts under this Design-Build Contract, including the Phase 1a Preliminary Services Fee, the Subsequent Preliminary Services Phase Preliminary Services Fees and the Design-Build Price. [Note: To be updated by Contract Amendment to include any California State Water Resources Control Board grants administered by the Division of Financial Assistance of the California State Water Resources Control Board and any new grants obtained by the Town.]
“Gravity Force Main Section” means the second section of the Export Pipeline System anticipated to be approximately 60,150 feet or 11.4 miles long, beginning at the 255
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Transition Chamber, dropping 224 feet in elevation and ending at the Flow Control and Metering Structure.
“Guaranteed Maximum Price” has the meaning specified in Appendix 8 (Design-Build Price).
“Hazardous Material” means any waste, substance, object or material deemed hazardous under Applicable Law, including “hazardous substances” as defined under CERCLA, “hazardous waste” as defined under RCRA or in California Health and Safety Code Section 25117, and “hazardous material” as defined under US DOT regulations (49 CFR 100- 180).
“Health and Safety Plan” means (a) for the Preliminary Services Period, the Preliminary Services Health and Safety Plan and (b) for the Design-Build Period, the DesignBuild Period Work Health and Safety Plan. “Intellectual Property” means any trade secrets, proprietary rights, patents, copyrights or trademarks recognized under Applicable Law. “Inter-Municipal Agreement” means the Inter-Municipal Agreement, City of Chico Wastewater Treatment Services to the Town of Paradise, approved by the Town Council on February 14, 2023 and approved by the City of Chico City Council February 21, 2023, by and between the City of Chico and the Town, as the same may be amended from time to time in accordance therewith.
“Insurance Requirement” means any rule, regulation, code, or requirement issued by any insurance company that has issued a policy of Required Insurance under this Design-Build Contract or by any insurance company that has issued a policy of insurance required to be obtained and maintained by the Town in connection with this Design-Build Contract, compliance with which is a condition to the effectiveness of such policy. “Issued for Construction Drawings and Specifications” means the Drawings and Specifications which have been accepted by the Town as final Drawings and Specifications for the commencement of Construction of all or any portion of the Design-Build Work. “Legal Proceeding” means every action, suit, litigation, arbitration, administrative proceeding, and other legal or equitable proceeding having a bearing upon this Design-Build Contract, and all appeals therefrom.
“Lien” means any and every lien against the Project or against any monies due or to become due from the Town to the Design-Builder under this Design-Build Contract, for or on account of the Contract Obligations, including mechanics’, materialmen’s, laborers’ and lenders’ liens.
“Limited Notice to Proceed” means a written notice issued by the Town Contract Representative authorizing the Design-Builder to proceed with Construction under certain specific terms and conditions pursuant to Section 6.1(A)(2) (Limited Notice to Proceed), in either case as specified in the Limited Notice to Proceed. “Loss-and-Expense” means any and all actual loss, liability, forfeiture, obligation, damage, fine, penalty, judgment, Lien, deposit, Tax, charge, assessment, cost or expense, including all Fees and Costs, relating to third party claims for which the DesignBuilder is obligated to indemnify the Town Indemnitees pursuant to this Design-Build Contract.
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“Mediator” means any person serving as a third-party mediator of disputes hereunder pursuant to Section 11.1 (Dispute Resolution Procedures). “Monthly Progress Report” has the meaning specified in Section 4.9 (Monthly Progress Reports).
“NEPA” means the National Environmental Policy Act, 42 U.S.C. 4321 et seq., and applicable regulations promulgated thereunder, each as amended from time to time. “NEPA Document” means the categorical exclusion, environmental assessment, finding of no significant impact or environmental impact statement for the Project pursuant to NEPA, in draft and final forms as applicable.
“Non-Binding Mediation” means the voluntary system of dispute resolution through third-party mediation established by Section 11.1 (Dispute Resolution Procedures) for the resolution of any dispute arising under this Design-Build Contract. “Non-Governmental Approvals” means the UPRR Approval and access approvals and easements from private property owners, including any Town Managed NonGovernmental Approvals and Design-Builder Managed Non-Governmental Approvals. “Notice of Final Completion” has the meaning set forth in Section 8.4(B) (Notice and Report of Final Completion).
“Notice to Proceed” or “NTP” means a written notice issued by the Town Contract Representative authorizing the Design-Builder to commence performing a portion of the Design-Build Work, as specified in the Notice to Proceed. “Operations and Maintenance Manual” means the manual and related computer programs prepared by the Design-Builder containing detailed standard operating and maintenance procedures and other specific instructions, policies, directives, routines, schedules and other matters relating to the Project, developed and maintained as required by Section 6.20 (Operations and Maintenance Manual) and Appendix 5 (General Design-Build Work Requirements). The Operations and Maintenance Manual includes the service manuals describing the operation and maintenance requirements for each equipment system, package and unit incorporated into the Project.
“OSHA” means the Occupational Safety and Health Act of 1970, 29 U.S.C.

Section 650 et seq., including the applicable regulations promulgated thereunder, as amended or superseded from time to time.
“Overdue Rate” means the maximum rate of interest permitted by the laws of the State, if applicable, or the Prime Rate, whichever is lower; provided, however, that if applicable State law mandates payment of a specified interest rate, such specified interest rate shall apply.
“Owner Representative” means any individual or firm, or team of individuals or firms, under contract with the Town, including subcontractors, and designated by the Town from time to time as part of its management-consulting, engineering or construction management team for purposes of administering this Design-Build Contract on behalf of the Town.
“Payment Bond” means the labor and materials payment bond provided by the Design-Builder as described in and maintained pursuant to this Design-Build Contract and in the form set forth in the Transaction Forms.
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“Payment Request” means a written submission by the Design-Builder in the form approved by the Town and accompanied by all required supporting documentation, requesting payment hereunder of any portion of the Contract Compensation. “Performance Bond” means the performance bond provided by the DesignBuilder as described in and maintained pursuant to this Design-Build Contract and in the form set forth in the Transaction Forms.
“Permitted Encumbrances” means, as of any particular time, any one or more of the following:
(1) Encumbrances for utility charges, taxes, rates and assessments not yet delinquent or, if delinquent, the validity of which is being contested diligently and in good faith by the Design-Builder and against which the Design-Builder has established appropriate reserves in accordance with generally accepted accounting principles; (2) Any encumbrance arising out of any judgment rendered that is being contested diligently and in good faith by the Design-Builder, the execution of which has been stayed or against which a bond or bonds in the aggregate principal amount equal to such judgments shall have been posted with a financially-sound insurer and which does not have a material and adverse effect on (a) the ability of the Design-Builder to construct the Project in accordance with this Design-Build Contract or (b) the ability of the Town to utilize the Project;
(3) Any encumbrance arising in the ordinary course of business imposed by law dealing with materialmen’s, mechanics’, workmen’s, repairmen’s, warehousemen’s, landlords’, vendors’ or carriers’ encumbrances created by law, or deposits or pledges which are not yet due or, if due, the validity of which is being contested diligently and in good faith by the Design-Builder and against which the Design-Builder has established appropriate reserves or bonded against, at the Town’s request; (4) Servitudes, licenses, leases, easements, restrictions, rights-of-way, rights in the nature of easements or similar items which shall not individually or in the aggregate materially and adversely impair (a) the construction of the Project by the Design-Builder in accordance with this Design-Build Contract or (b) the operation of the Project by the Town;
(5) Applicable zoning and building bylaws and ordinances, municipal bylaws and regulations, and restrictive covenants, which individually or in the aggregate do not materially interfere with and adversely affect (a) the construction of the Project by the Design-Builder in accordance with this Design-Build Contract or (b) the utilization of the Project by the Town;
(6) Encumbrances which are created on or before the Contract Date; (7) Encumbrances which are created by a Change in Law on or after the Contract Date; and
(8) Any encumbrance created by the Town.
“PG&E” means Pacific Gas and Electric Company.
“Phase 1a” means the initial phase of the Preliminary Services Period. Phase 1a shall commence on the Contract Date.
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“Phase 1a Additional Preliminary Services” means those services designated as Additional Preliminary Services for Phase 1a in Section 5.2(B) (Additional Preliminary Services).
“Phase 1a Base Preliminary Services” means those services designated as Phase 1a Base Preliminary Services in Appendix 2 (Preliminary Services). “Phase 1a Preliminary Services Fee” has the meaning specified in Section 9.1 (Compensation for Preliminary Services) and Appendix 2 (Preliminary Services). “Phase 1a Preliminary Services Period” means the period between the Contract Date and the next following Subsequent Preliminary Services Phase Preliminary Services Amendment Date.
“Phase 1a Preliminary Services Schedule” has the meaning specified in Section 5.3 (Preliminary Services Schedule).
“Preliminary Design Documents” means the Design-Builder’s plans, technical specifications, drawings and other documents prepared in connection with the Preliminary Services, including the Baseline Design Documents.
“Preliminary Services” means, collectively, the Phase 1a Preliminary Services and the Subsequent Preliminary Services Phase Preliminary Services. “Preliminary Services Deliverable Material” means all documents, reports, studies, surveys, computer programs, warranties, manuals, submittals, licenses and other documents and materials required to be delivered by the Design-Builder to the Town in the performance of the Preliminary Services pursuant to this Design-Build Contract, including the Preliminary Design Documents.
“Preliminary Services Fee” (i) with respect to Phase 1a, means the Phase 1a Preliminary Services Fee, (ii) with respect to any Subsequent Preliminary Services Phase, means the applicable Subsequent Preliminary Services Phase Preliminary Services Fee and (iii) in the aggregate, means an amount equal to the sum of the Phase 1a Preliminary Services Fee and all Subsequent Preliminary Services Phase Preliminary Services Fees. “Preliminary Services Health and Safety Plan” means the Design-Builder’s plan for health and safety in implementing the Preliminary Services including related field work, to be developed as part of the Phase 1a Preliminary Services in accordance with the requirements set forth in Appendix 2.
“Preliminary Services Period” means the period between the Contract Date and the GMP Amendment Date, comprising the Phase 1a Preliminary Services Period and the Subsequent Preliminary Services Phase Preliminary Services Periods. “Preliminary Services Phase” means Phase 1a or any Subsequent Preliminary Services Phase.
“Preliminary Services Quality Management Plan” means the Design-Builder’s plan for quality assurance and quality control in implementing the Preliminary Services, to be developed as part of the Phase 1a Preliminary Services. “Preliminary Services Schedule” (i) with respect to Phase 1a, means the Phase 1a Preliminary Services Schedule, (ii) with respect to any Subsequent Preliminary Services Phase, means the applicable Subsequent Preliminary Services Phase Preliminary 259
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Services Schedule and (iii) in the aggregate, means the Phase 1a Preliminary Services Schedule together with all Subsequent Preliminary Services Phase Preliminary Services Schedules. “Preliminary Services Tasks” means the subtasks specified in Appendix 2 (Preliminary Services) for Phase 1a Preliminary Services or for any Subsequent Preliminary Services Phase Preliminary Services, as applicable.
“Prime Rate” means the prime rate as published in The Wall Street Journal (Eastern Edition), or a mutually agreeable alternative source of the prime rate if it is no longer published in The Wall Street Journal (Eastern Edition) or the method of computation thereof is substantially modified.
“Project” means the Core Collection System, the Core Collection System Rights of Way, the Export Pipeline System, the Export Pipeline System Rights of Way, the Transition Chamber Site, the Flow Control and Metering Structure Site, the Chico WPCP Connection and all Contract Obligations required to be performed under the Contract Documents. “Project Management Plan” means the Design-Builder’s plan for project management in implementing the Preliminary Services and the Design-Build Period Work to be developed as part of the Preliminary Services in accordance with Appendix 2 (Preliminary Services).
“Project Manager” has the meaning specified in Section 7.1(A) (Project Manager).
“Project Schedule” means the Phase 1a Preliminary Services Schedule, the Subsequent Preliminary Services Phase Preliminary Services Schedules and the Design-Build Period Work Schedule.
“Project Sites” means the Core Collection System Rights of Way, the Export Pipeline System Rights of Way, the Transition Chamber Site, the Flow Control and Metering Structure Site and the Chico WPCP Connection Site.
“Project Warranties” has the meaning specified in Section 10.1(A) (Project Warranties Defined).
“Punch List” has the meaning specified in Section 6.21(A) (Punch List Requirements).
“Quality Management Plan” means (a) for the Preliminary Services Period, the Preliminary Services Quality Management Plan and (b) for the Design-Build Period, the DesignBuild Period Work Quality Management Plan. “RCRA” means the Resource Conservation and Recovery Act, 42 U.S.C.A. 6901 et seq., and applicable regulations promulgated thereunder, each as amended from time to time.
“Reference Documents” means the documents listed as reference documents in Appendix 1 (Project and Project Sites) Table A1-1 to this Design-Build Contract. “Regulated Site Condition” means, and is limited to:
(1) The presence or habitat of a species that is classified under Applicable Law as endangered, rare, threatened, of special concern, or similarly subject to the protections of Applicable Law;
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(2) The presence anywhere in, on or under the Project Sites of historical, archaeological, religious architectural or other cultural artifacts, relics, vestiges, remains or objects of antiquity that are regulated by Applicable Law; (3) The presence anywhere in, on or under the Project Sites on the Baseline Date of wells or underground storage tanks for the storage of chemicals, petroleum products or Regulated Substances; and
(4) The presence of Regulated Substances in environmental media anywhere in, on or under the Project Sites (including presence in surface water, groundwater, soils or subsurface strata), but not including Regulated Substances used, stored or otherwise brought to the Project Sites by the Design-Builder or any Subcontractor as provided in Section 6.4(A) (Design-Builder Responsibilities). “Regulated Substance” means:
(1) Any oil, petroleum or petroleum product; and
(2) Any pollutant, contaminant, hazardous substance, hazardous material, toxic substance, toxic pollutant, solid waste, municipal waste, industrial waste or hazardous waste that is defined as such by and is subject to regulation under any Applicable Law. Regulated Substances include Hazardous Materials. “Related Projects” has the meaning specified in Section 6.13(B) (Related Projects Generally).
“Relief Request Notice” has the meaning specified in Section 14.2(C) (Submittal of Relief Request).
“Request for Qualifications” or “RFQ” means the Town’s Request for Qualifications for Progressive Design-Build Services for the Paradise Sewer Project, Town of Paradise Project Number: CIP-9394, Federal Aid Project Number: 18-DRINFRA-18009, Town of Paradise, Public Works Department, 5555 Skyway, Paradise, CA 95969, No. RFQ 2023-9394-01, on October 30, 2023, as amended.
“Required Insurance” means the insurance policies and coverage required to be provided by the Design-Builder under this Design-Build Contract, as set forth in Section 13.1 (Insurance) and Appendix 10 (Insurance Requirements).
“Restricted Person” means any person who (or any member of a group of persons acting together, any one of which):
(1) Is disbarred, suspended, or otherwise disqualified from federal, State, or Town contracting for any services similar in nature to the Contract Obligations; (2) Was or is subject to any material claim of the United States, State, or Town in any proceedings (including regulatory proceedings) which have been concluded or are pending at the time at which the determination of whether the person falls within this definition is being made, and which (in respect of any such pending claim, if it were to be successful) would, in the Town’s view, in either case, be reasonably likely to materially affect the ability of the Design-Builder to perform its obligations under this Design-Build Contract;
(3) In the case of an individual, he or she (or in the case of a legal entity, any of the members of the board of directors or its senior executive managers) has been 261
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sentenced to imprisonment or otherwise given a custodial sentence for any criminal offense (other than minor traffic offenses or misdemeanor) less than 5 years prior to the date at which the determination of whether the person falls within this definition is being made;
(4) Has, directly or indirectly, its principal or controlling office in a country that is subject to any economic or political sanctions imposed by the United States for reasons other than its trade or economic policies; or
(5) Has as its primary business the illegal manufacture, sale, distribution or promotion of narcotic substances or arms, or is or has been involved in terrorism. “Ridge Gravity Section” means the first section of the Export Pipeline System anticipated to be approximately 35,700 feet or 8.8 miles long, beginning at the southwest edge of the Town, dropping about 1,070 in elevation and ending at the Transition Chamber. “Safety Manager” has the meaning specified in Section 6.16(A) (Safety Manager).
“Scheduled Substantial Completion Date” means the date which is [TBD] days following the GMP Amendment Date, as such Scheduled Substantial Completion Date may be adjusted in accordance with Section 14.4 (Schedule Relief and Related Price Relief). [Note: To be negotiated as part of the GMP Amendment.]
“Security Instruments” means the Performance Bond and the Payment Bond. “Senior Supervisors” has the meaning specified in Section 17.6(A) (DesignBuilder Contract Representative and Senior Supervisors). “Separate Contractor” means any person or entity under contract with the Town for the performance of work associated with the Related Projects or under contract with a non-Town owner to perform work at the Project Sites.
“Shared Savings Amount” has the meaning specified in Appendix 8 (DesignBuild Price). “Sewer Service Area” means the Town’s sewer service area as depicted in Appendix 1 (Project and Project Sites).
“Specifications” means the documents prepared by or on behalf of DesignBuilder comprising written technical descriptions of materials, equipment, construction systems, standards, and workmanship for the Design-Build Work and certain administrative details applicable thereto.
“Specified Project Risk Contingency” means the amount that the Town has included in the Base Guaranteed Maximum Price to address certain Design-Builder assumed risks as set forth in Appendix 8 (Design-Build Price).
“State” means the State of California.
“Statement of Qualifications” means the statement of qualifications submitted by the Design-Builder on December 15, 2023, in response to the RFQ. “Subcontract” means any contract entered into by the Design-Builder, or a Subcontractor of the Design-Builder of any tier, with one or more persons in connection with 262
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the carrying out of the Design-Builder’s obligations under this Design-Build Contract, whether for the furnishing of labor, materials, equipment, supplies, services or otherwise, including contracts for Construction, Design Professional Services and Supplies. “Subcontracting Plan” means the Design-Builder’s plan for entering into Subcontracts, to be developed as part of the Preliminary Services in accordance with the requirements set forth in Appendix 2 (Preliminary Services) and the attachment to Appendix 11 (Key Personnel and Approved Subcontractors) and finalized on the GMP Amendment Date in accordance with Section 7.4(C) (Subcontracting Plan).
“Subcontractor” means any person, other than the Design-Builder, that enters into a Subcontract, including Construction Subcontractors, Design Professional Services Firms and Suppliers.
“Subsequent Preliminary Services Phase” means each phase of the Preliminary Services Period (other than Phase 1a) as designated in subsection 5.1(A) (Generally). Each Subsequent Preliminary Services Phase shall be defined sequentially as Phase 1b, Phase 1c, Phase 1d, etc. as proposed in the applicable Subsequent Preliminary Services Phase Preliminary Services Submittal and, if agreed to by the parties, incorporated into this Design-Build Contract by the applicable Subsequent Preliminary Services Phase Preliminary Services Amendment.
“Subsequent Preliminary Services Phase Additional Preliminary Services” (i) with respect to a Subsequent Preliminary Services Phase, means those services designated as Additional Preliminary Services for such Subsequent Preliminary Services Phase in Section

5.2(B) (Additional Preliminary Services), and (ii) in the aggregate, means those services designated as Additional Preliminary Services for all such Subsequent Preliminary Services Phases in Section 5.2(B) (Additional Preliminary Services). The applicable Subsequent Preliminary Services Phase Additional Preliminary Services shall also be defined sequentially as Phase 1b, Phase 1c, Phase 1d, etc. corresponding to the applicable Subsequent Preliminary Services Phase.
“Subsequent Preliminary Services Phase Base Preliminary Services” (i) with respect to a Subsequent Preliminary Services Phase, means those services designated as Base Preliminary Services for such Subsequent Preliminary Services Phase in Appendix 2 (Preliminary Services), and (ii) in the aggregate, means those services designated as Base Preliminary Services for all such Subsequent Preliminary Services Phases in Appendix 2 (Preliminary Services). The applicable Subsequent Preliminary Services Phase Base Preliminary Services shall also be defined sequentially as Phase 1b, Phase 1c, Phase 1d, etc. corresponding to the applicable Subsequent Preliminary Services Phase. “Subsequent Preliminary Services Phase Preliminary Services Submittal” with respect to a Subsequent Preliminary Services Phase, means the submittal for such Subsequent Preliminary Services Phase described in subsection 5.1(C) (Development of Subsequent Preliminary Services Phase Preliminary Services). The applicable Subsequent Preliminary Services Phase Preliminary Services Submittal shall also be defined sequentially as Phase 1b, Phase 1c, Phase 1d, etc. corresponding to the applicable Subsequent Preliminary Services Phase.
“Subsequent Preliminary Services Phase Preliminary Services Amendment” with respect to a Subsequent Preliminary Services Phase, means the Contract Amendment authorizing such Subsequent Preliminary Services Phase Preliminary Services described in subsection 5.1(C) (Development of Subsequent Preliminary Services Phase Preliminary Services). The applicable Subsequent Preliminary Services Phase Preliminary Services 263
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Amendment shall also be defined sequentially as Phase 1b, Phase 1c, Phase 1d, etc. corresponding to the applicable Subsequent Preliminary Services Phase. “Subsequent Preliminary Services Phase Preliminary Services Amendment Date” with respect to a Subsequent Preliminary Services Phase, means the date of execution and delivery of the Subsequent Preliminary Services Phase Preliminary Services Amendment described in subsection 5.1(C) (Development of Subsequent Preliminary Services Phase Preliminary Services). The applicable Subsequent Preliminary Services Phase Preliminary Services Amendment Date shall also be defined sequentially as Phase 1b, Phase 1c, Phase 1d, etc. corresponding to the applicable Subsequent Preliminary Services Phase Preliminary Services Amendment.
“Subsequent Preliminary Services Phase Preliminary Services” (i) with respect to a Subsequent Preliminary Services Phase, means the Base Preliminary Services and the Additional Preliminary Services performed by the Design-Builder hereunder during such Subsequent Preliminary Services Phase, and (ii) in the aggregate, means all of the Base Preliminary Services and the Additional Preliminary Services performed by the Design-Builder hereunder for all of the Subsequent Preliminary Services Phases prior to the GMP Amendment Date. The applicable Subsequent Preliminary Services Phase Preliminary Services shall also be defined sequentially as Phase 1b, Phase 1c, Phase 1d, etc. corresponding to the applicable Subsequent Preliminary Services Phase.
“Subsequent Preliminary Services Phase Preliminary Services Fee” (i) with respect to a Subsequent Preliminary Services Phase, has the meaning specified in Section 9.1 (Compensation for Preliminary Services) and Appendix 2 (Preliminary Services) for such Subsequent Preliminary Services Phase, and (ii) in the aggregate, has the meaning specified in Section 9.1 (Compensation for Preliminary Services) and Appendix 2 (Preliminary Services) for all of the Subsequent Preliminary Services Phases prior to the GMP Amendment Date. The applicable Subsequent Preliminary Services Phase Preliminary Services Fee shall also be defined sequentially as Phase 1b, Phase 1c, Phase 1d, etc. corresponding to the applicable Subsequent Preliminary Services Phase.
“Subsequent Preliminary Services Phase Preliminary Services Period” means the period between the applicable Subsequent Preliminary Services Phase Preliminary Services Amendment Date and the next following Subsequent Preliminary Services Phase Preliminary Services Amendment Date, and, in the case of the final Subsequent Preliminary Services Phase Preliminary Services Period, the period between the applicable Subsequent Preliminary Services Phase Preliminary Services Amendment Date and the GMP Amendment Date.
“Subsequent Preliminary Services Phase Preliminary Services Schedule” with respect to a Subsequent Preliminary Services Phase, means the Preliminary Services Schedule for such Subsequent Preliminary Services Phase as described in Section 5.3 (Preliminary Services Schedule). The applicable Subsequent Preliminary Services Phase Preliminary Services Schedule shall also be defined sequentially as Phase 1b, Phase 1c, Phase 1d, etc. corresponding to the applicable Subsequent Preliminary Services Phase. “Substantial Completion” means demonstration by the Design-Builder in accordance with Article 8 (Substantial Completion and Final Completion) and Appendix 9 (Substantial Completion and Final Completion) that the Project has met all of the Substantial Completion Conditions, as certified by the Design-Builder pursuant to Section 8.1(A) (Substantial Completion Date Conditions) and agreed to by the Town pursuant to Section

8.2(A) (Substantial Completion Date Concurrence).
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“Substantial Completion Date” means the date on which Substantial Completion of the Project occurs or is deemed to have occurred under Article 8 (Substantial Completion and Final Completion).
“Substantial Completion Date Conditions” means the preconditions for the achievement of Substantial Completion by the Design-Builder, as set forth in Section 8.1 (Substantial Completion Date Conditions).
“Supplier” means a manufacturer, distributor, materialman, fabricator, vendor or other supplier having a Subcontract to furnish Supplies. “Supplies” means materials, equipment or other supplies furnished in connection with the Design-Build Work.
“Surety” means the surety company issuing the Performance Bond, the Payment Bond, as applicable.
“Tax” means any tax, fee, levy, duty, impost, charge, surcharge, assessment or withholding, or any payment-in-lieu thereof, and any related interest, penalty or addition to tax.
“Technical Standards” means the technical standards applicable to design and testing for the Project set forth in Appendix 4 (Baseline Design Documents) hereto. “Term” has the meaning set forth in Section 3.1 (Effective Date and Term). “Termination Date” means the last day of this Design-Build Contract resulting from a termination under any provision hereof.
“Town” means the Town of Paradise, California, a municipal corporation organized and existing and by virtue of the laws of the State. “Town Allowance” means the amount that the Town has included in the Guaranteed Maximum Price to address Uncontrollable Circumstances as set forth in Section 8.8 of Appendix 8 (Design-Build Price).
“Town Contract Representative” has the meaning specified in Section 17.6(B) (Town Contract Representative).
“Town Fault” means any breach (including the untruth or breach at the time made of any Town representation or warranty herein set forth), failure, non-performance or non-compliance by the Town under this Design-Build Contract with respect to its obligations and responsibilities under this Design-Build Contract to the extent not directly attributable to any Uncontrollable Circumstance and which materially and adversely affects the DesignBuilder’s rights, obligations or ability or costs to perform under this Design-Build Contract. “Town Indemnitee” has the meaning specified in Section 15.1 (Design-Builder’s Obligation to Indemnify).
“Town Managed Governmental Approvals” means those Governmental Approvals for which the Town is the application manager, as designated in Appendix 3 (Governmental and Non-Governmental Approvals). [Note: For purposes in addition to Uncontrollable Circumstances, we can revisit.]
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“Town Managed Non-Governmental Approvals” means those NonGovernmental Approvals for which the Town is the application manager, as designated in Table A3-2 in Appendix 3 (Governmental and Non-Governmental Approvals). “Town Property” means any structures, improvements, equipment, or other real or personal property owned, leased, operated, maintained, or occupied by the Town. “Traffic Control Plan” means the Design-Builder’s plan for traffic control, to be developed as part of the Design-Build Period Work in accordance with the requirements set forth in Appendix 2 (Preliminary Services). The Traffic Control Plan shall include the traffic control requirements of all applicable jurisdictions, including, without limitation, Butte County, the City of Chico, Caltrans and UPRR.
“Transaction Form” means any of the transaction forms identified in the table of contents to this Design-Build Contract.
“Transition Chamber” means the chamber that provides the necessary transition of the wastewater flow from the steep Ridge Gravity Section to the Gravity Force Main Section that runs along the flatter portions of the valley floor, connecting the Gravity Force Main Section to the Chico WPCP.
“Transition Chamber Site” means the site where the Transition Chamber will be located pursuant to the Baseline Design Documents.
“Unallowable Costs” has the meaning specified in Appendix 8 (Design-Build Price).
“Uncontrollable Circumstance” means any act, event or condition that (1) is beyond the reasonable control of the party relying on it as a justification for not performing an obligation or complying with any condition required of the party under this Design-Build Contract, and (2) materially expands the scope, interferes with, delays or increases the cost of performing the party’s obligations under this Design-Build Contract, to the extent that such act, event or condition is not the result of the willful or negligent act, error or omission, failure to exercise reasonable diligence, or breach of this Design-Build Contract on the part of the party claiming the occurrence of an Uncontrollable Circumstance. (1) Inclusions. Subject to the foregoing, Uncontrollable Circumstances may include the following:
(a) A Change in Law;
(b) The existence of Differing Site Conditions, as and to the extent provided in Section 6.3 (Differing Site Conditions) but subject to the limited relief set forth in Section 6.3(D) (Relief for Differing Site Conditions);
(c) The existence of a Regulated Site Condition, as and to the extent provided in Section 6.4 (Regulated Site Conditions) but subject to the limited relief set forth in Section 6.4(E) (Uncontrollable Circumstance Relief); (d) Acts, events or circumstances associated with the Separate Contractors, as and to the extent provided in Section 6.13(C) (Interrelated Work); (e) Naturally occurring events, including unusually severe and abnormal climatic conditions (as determined in accordance with Section 14.5 (Unusually Severe 266
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and Abnormal Climatic Events)), landslides, underground movement, earthquakes, fires, tornadoes, hurricanes, floods, lightning, epidemics and other acts of God; (f) Explosion, terrorism, sabotage or similar occurrence, acts of a declared public enemy, extortion, war, blockade or insurrection, riot or civil disturbance; (g) Labor disputes or actions, except labor disputes or actions involving employees of the Design-Builder, its Affiliates, or Subcontractors, which affect the performance of the Design-Build Work;
(h) The failure of any Subcontractor (other than the Design-Builder or any Affiliate of the Design-Builder) to furnish services, materials, chemicals or equipment on the dates agreed to, but only if such failure is the result of an event which would constitute an Uncontrollable Circumstance if it affected the Design-Builder directly, and the Design-Builder is not able after exercising all reasonable efforts to timely obtain replacements;
(i) The preemption, confiscation, diversion, destruction or other interference in possession or performance of materials or services by a Governmental Body in connection with a public emergency or any condemnation or other taking by eminent domain of any material portion of the Project;
(j) An act, event or circumstance occurring outside of the United States only to the extent that such act, event or circumstance (i) directly impacts the DesignBuilder’s foreign Suppliers or vendors with respect to the performance of the DesignBuild Work, and (ii) would otherwise constitute an Uncontrollable Circumstance affecting the Design-Builder directly, as determined in accordance with Article 14 (Uncontrollable Circumstances);
(k) Failure of Utilities to perform any relocation work identified in the Utility Relocation Plan in a timely manner following reasonable notice provided that reasonable notice shall at a minimum be [TBD] days; [Note: The number of days’ notice for each Utility shall be developed as part of the Preliminary Services.] (l) With respect to the Design-Builder, any Town Fault or a Change Order not made due to Design-Builder Fault;
(m) With respect to the Town, any Design-Builder Fault; (n) The addition of any new federal or state project funding requirements that did not exist as of the GMP Submittal; or
(o) Any other act, event or circumstance specifically identified herein as providing a basis for Uncontrollable Circumstance relief. (2) Exclusions. It is specifically understood that, without limitation, none of the following acts, events or circumstances shall constitute Uncontrollable Circumstances:
(a) Any act, event or circumstance that would not have occurred but for the affected party’s failure to comply with its obligations hereunder; (b) Changes in interest rates, inflation rates, wage rates, insurance premiums, commodity prices, labor availability, currency values, exchange rates or other economic conditions; [Note: Parties to determine whether to provide for escalation of cost of materials prior to GMP Submittal.]
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(c) Changes in the financial condition of the Town, the Design-Builder or their Affiliates or Subcontractors affecting the ability to perform their respective obligations;
(d) The consequences of error, neglect or omissions by the Design-Builder, any Subcontractor, any of their Affiliates or any other person in the performance of the Design-Build Work;
(e) Union or labor work rules, requirements or demands which have the effect of increasing the number of employees employed at the Project or otherwise increasing the cost to the Design-Builder of performing the Design-Build Work; (f) Except as specifically included as an Uncontrollable Circumstance pursuant to clause (i)(g) of this definition, strikes, labor disputes, work slowdowns, work stoppages, boycotts or other similar labor disruptions; (g) Weather conditions that do not constitute unusually severe and abnormal climatic conditions (as determined in accordance with Section 14.5 (Unusually Severe and Abnormal Climatic Events));
(h) Except as specifically provided in Section 6.3 (Differing Site Conditions) and Section 6.4 (Regulated Site Conditions), any surface or subsurface conditions affecting the Project Sites during the Design-Build Period Work; (i) Except as specifically provided in the “Inclusions” section of this definition, any act, event, circumstance or Change in Law occurring outside of the United States;
(j) Mechanical failure of equipment or repair delays to the extent not resulting from a condition that is listed in the “Inclusions” section of this definition; (k) The failure of the Design-Builder to secure any patent or other Intellectual Property right which is or may be necessary for the performance of the Design-Build Work; or
(l) Acts, events and circumstances with respect to Design-Builder Managed Governmental Approvals to the extent the Design-Builder has assumed the permitting risk under Section 6.5 (Permitting Responsibilities and Schedule). “UPRR” means the Union Pacific Railroad.
“UPRR Approval” means the approval required to be granted by UPRR regarding construction of the Project in the UPRR right of way. “UPRR Requirements” means the written and oral requirements of UPRR relating to the Design-Build Work to be performed near, next to or under the railway owned by UPRR.
“Utilities” means any and all utility services and installations whatsoever (including gas, water, sewer, electricity, telephone, and telecommunications), and all piping, wiring, conduit, and other fixtures of every kind whatsoever related thereto or used in connection therewith.
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“Utility Relocation Plan” means the Design-Builder’s plan for utility relocation to be developed as part of the Preliminary Services in accordance with the requirements set forth in Appendix 2 (Preliminary Services).
“Warranty Period” has the meaning specified in Section 10.1(B) (Term of the Project Warranties).
“Warranty Work” means all work and services required to be performed or provided by the Design-Builder pursuant to the Project Warranties in accordance with Article 10 (Project Warranties).
“Wastewater Pipelines” means the wastewater pipes to be designed and installed by the Design-Builder as set forth in Appendix 4 (Baseline Design Documents). “Work Change Directive” has the meaning specified in Section 6.11 (Work Change Directives).

SECTION 1.2. INTERPRETATION.

This Design-Build Contract shall be interpreted according to the following provisions, except to the extent the context or the express provisions of this Design-Build Contract otherwise require:
(A) Gender and Plurality. Words of the masculine gender mean and include correlative words of the feminine and neuter genders and words importing the singular number mean and include the plural number and vice versa.
(B) Persons. Words importing persons include firms, individuals, legal personal representatives, companies, associations, joint ventures, general partnerships, limited partnerships, limited liability corporations, trusts, business trusts, corporations, Governmental Bodies and other legal entities.
(C) Headings. The table of contents and any headings preceding the text of the Articles, Sections and subsections of this Design-Build Contract shall be solely for convenience of reference and shall not affect its meaning, construction or effect. (D) References Hereto. The terms “hereto”, “hereby,” “hereof,” “herein,” “hereunder” and any similar terms refer to this Design-Build Contract. (E) References to Days and Time of Day. All references to days herein are references to calendar days, unless otherwise indicated, such as by reference to Business Days. If the time for doing an act falls or expires on a day that is not a Business Day, the time for doing such act shall be extended to the next Business Day. Each reference to time of day is a reference to Pacific Standard time or Pacific Daylight Saving time, as the case may be. (F) References to Including. The words “include,” “includes” and “including” are to be construed as meaning “include without limitation,” “includes without limitation” and “including without limitation,” respectively.
(G) References to Statutes. Each reference to a statute or statutory provision includes any statute or statutory provision which amends, extends, consolidates or replaces the statute or statutory provision or which has been amended, extended, consolidated or replaced by the statute or statutory provision and includes any orders, regulations, by-laws, ordinances, codes of practice or instruments made under the relevant statute. 269
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(H) References to the Town, Governmental Bodies and Private Persons. Each reference to the Town or a Governmental Body is deemed to include a reference to any successor to the Town or such Governmental Body or any organization or entity or organizations or entities which has or have taken over the functions or responsibilities of the Town or such Governmental Body. Each reference to a private person that is not an individual is deemed to include a reference to its successors and permitted assigns. (I) References to Documents and Standards. Each reference to an agreement, document, standard, principle or other instrument includes a reference to that agreement, document, standard, principle or instrument as amended, supplemented, substituted, innovated or assigned.
(J) References to All Reasonable Efforts. The expression “all reasonable efforts” and expressions of like import, when used in connection with an obligation of either party, means taking in good faith and with due diligence all commercially reasonable steps to achieve the objective and to perform the obligation, including doing all that can reasonably be done in the circumstances taking into account each party’s obligations hereunder to mitigate delays and additional costs to the other party, and in any event taking no less steps and efforts than those that would be taken by a commercially reasonable and prudent person in comparable circumstances.
(K) Entire Agreement. This Design-Build Contract contains the entire agreement between the parties hereto with respect to the transactions contemplated by this Design-Build Contract. Without limiting the generality of the foregoing, this Design-Build Contract shall completely and fully supersede all other understandings and agreements among the parties with respect to such transactions, including those contained in the RFQ, the Statement of Qualifications, and any amendments or supplements to any such documents. (L) Standards of Workmanship and Materials. Any reference in the Contract Documents to materials, equipment, systems or supplies (whether such references are in lists, notes, specifications, schedules, or otherwise) shall be construed to require the Design-Builder to furnish the same in accordance with the grades and standards therefor indicated in the Contract Documents. Where the Contract Documents do not specify any explicit quality or standard for construction materials or workmanship, the Design-Builder shall use only workmanship and new materials of a quality consistent with that of construction workmanship and materials that are specified elsewhere in the Contract Documents, and the Contract Documents are to be interpreted accordingly.
(M) Technical Standards and Codes. References in the Contract Documents to all professional and technical standards, codes and specifications are to the most recently published professional and technical standards, codes and specifications of the institute, organization, association, authority or society specified, all as in effect as of the Baseline Date.

Unless otherwise specified to the contrary, (1) all such professional and technical standards, codes and specifications shall apply as if incorporated in the Baseline Design Documents, and (2) if any material revision occurs, to the Design-Builder’s actual knowledge, after the Baseline Date, and prior to completion of the applicable Design-Build Work, the Design-Builder shall notify the Town. If so directed by the Town through a Work Change Directive or Change Order, the Design-Builder shall perform the applicable Design-Build Work in accordance with the revised professional and technical standard, code, or specification, subject to the DesignBuilder’s rights under this Design-Build Contract with respect to Work Change Directives and Change Orders at the direction of the Town.
(N) Causing Performance. A party shall itself perform, or shall cause to be performed, subject to any limitations specifically imposed hereby with respect to 270
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Subcontractors or otherwise, the obligations affirmatively undertaken by such party under this Design-Build Contract.
(O) Party Bearing Cost of Performance. All obligations undertaken by each party hereto shall be performed at the cost of the party undertaking the obligation or responsibility, unless the other party has explicitly agreed herein to bear all or a portion of the cost either directly, by reimbursement to the other party or through an adjustment to the Guaranteed Maximum Price.
(P) Good Engineering and Construction Practice. Good Engineering and Construction Practice shall be utilized hereunder, among other things, to implement and in no event displace or lessen the stringency of, the Contract Standards. (Q) Interpretation of Contract Documents. The Contract Documents are intended to be complementary, and what is set forth in any one document is as binding as if set forth in each document. The parties recognize that Contract Amendments, Change Orders and Work Change Directives may provide for specific modification to the terms and conditions of other Contract Documents, in which case, the modified terms and conditions shall govern, as expressly set forth in the Contract Amendment, Change Order or Work Change Directive.

However, all terms and conditions of such other Contract Documents that are not expressly modified or deleted by a Contract Amendment, Change Order or Work Change Directive shall remain in effect. Section 1.2(R) (Applicability, Stringency and Consistency of Contract Standards) shall govern matters of interpretation related to the applicability, stringency and consistency of the Contract Documents, the requirements of which are included among the Contract Standards.
(R) Applicability, Stringency and Consistency of Contract Standards. The Design-Builder shall be obligated to comply only with those Contract Standards which are applicable in any particular case. Where more than one Contract Standard applies to any particular performance obligation of the Design-Builder hereunder, each such applicable Contract Standard shall be complied with. In the event there are different levels of stringency among such applicable Contract Standards, the most stringent of the applicable Contract Standards shall govern. In the event of any inconsistency among the Contract Standards, the Town’s determination, acting reasonably, as to the applicable standard shall be binding. (S) Delivery of Documents in Digital Format. In the Contract Documents, the Design-Builder is obligated to deliver reports, records, designs, plans, drawings, specifications, proposals and other documentary submittals in connection with the performance of its duties hereunder. The Design-Builder agrees that all such documents shall be submitted to the Town both in printed form (in the number of copies indicated) and, at the Town’s request, in digital form. Digital copies shall consist of computer readable data submitted in any standard interchange format which the Town may reasonably request to facilitate the administration and enforcement of this Design-Build Contract. In the event that a conflict exists between the signed or the signed and stamped hard copy of any document and the digital copy thereof, the signed or the signed and stamped hard copy shall govern. (T) Severability. Each provision of this Design-Build Contract shall be valid and enforceable to the fullest extent permitted by law. If any provision of this Design-Build Contract is held to be invalid, unenforceable or illegal to any extent, such provision shall be severed and such invalidity, unenforceability or illegality shall not prejudice or affect the validity, enforceability and legality of the remaining provisions of this Design-Build Contract, unless such continued effectiveness as modified would be contrary to the basic understandings and intentions of the parties as expressed herein. If any provision of this Design-Build Contract is held to be invalid, unenforceable or illegal, the parties will promptly endeavor in good faith to 271
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negotiate new provisions to eliminate such invalidity, unenforceability or illegality and to restore this Design-Build Contract as nearly as possible to its original intent and effect. (U) Drafting Responsibility. The parties waive the application of any rule of law which otherwise would be applicable in connection with the construction of this DesignBuild Contract to the effect that ambiguous or conflicting terms or provisions should be construed against the party who (or whose counsel) prepared the executed agreement or any earlier draft of the same.
(V) No Third-Party Rights. This Design-Build Contract is exclusively for the benefit of the Town and the Design-Builder and, except as specifically provided in Article 15 (Indemnification) with respect to the Town Indemnitees and except as specifically provided in Section 17.20 (Rights of Granting Agencies and Federal Agencies) with respect to Granting Agencies and Federal Agencies, shall not provide any third parties with any remedy, claim, liability, reimbursement, cause of action or other rights. (W) Acting Reasonably and in Good Faith; Discretion. Each party shall act reasonably and in good faith in the exercise of its rights hereunder, except where a party has the right to act in its “discretion” by the express terms hereof. When a party has “discretion”, it means that party has the sole, absolute and unfettered discretion, with no requirement to act reasonably or provide reasons unless specifically required under the provisions of this DesignBuild Contract. When a party does not have “discretion” it means that the party shall act reasonably.
(X) Counterparts. This Design-Build Contract may be executed in any number of original counterparts. All such counterparts shall constitute but one and the same Design-Build Contract.
(Y) Governing Law. This Design-Build Contract shall be governed by and construed in accordance with the applicable laws of the State. (Z) Defined Terms. The definitions set forth in Section 1.1 (Definitions) shall control in the event of any conflict with any definitions used in the recitals hereto. (AA) Interpolation. If any calculation hereunder is to be made by reference to a chart or table of values, and the reference calculation falls between two stated values, the calculation shall be made on the basis of linear interpolation. (BB) Accounting and Financial Terms. All accounting and financial terms used herein are, unless otherwise indicated, to be interpreted and applied in accordance with generally accepted accounting principles.
(CC) References to Dollar Amounts. All statements of, or references to, dollar amounts or money, including references to “$” and “dollars”, are to the lawful currency of the United States of America. All payments required to be made by either party hereunder shall be made in dollars.
(DD) Liquidated Damages. This Design-Build Contract provides for the payment by the Design-Builder of liquidated damages in certain circumstances associated with unexcused delays in achieving Substantial Completion, as and to the extent provided in Section 8.3(C) (Delay Liquidated Damages). Each party agrees that the Town’s actual damages in each such circumstance of replacement or unexcused delay would be difficult or impossible to ascertain, and that the liquidated damages provided for herein with respect to each such circumstance of unexcused delay are intended to place the Town in the same economic position as it would have been in had the unexcused delay not occurred. Such liquidated 272
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damages shall constitute the only damages payable by the Design-Builder to the Town to compensate the Town for such replacement or for unexcused delays in achieving Substantial Completion by the Scheduled Substantial Completion Date, as applicable, regardless of legal theory. This limitation, however, is not intended to limit any of the other remedies for breach specifically provided for in this Design-Build Contract, including the Town’s remedies associated with an Event of Default by the Design-Builder under Section 12.2 (Events of Default by the Design-Builder). The parties acknowledge and agree that the additional remedies specifically provided for in this Design-Build Contract are intended to address harms and damages which are separate and distinct from those which the liquidated damages are meant to remedy. In addition, the parties agree as follows:
(1) that the liquidated damages payable under this Design-Build Contract are not a penalty, and are fair and reasonable and such payment represents a reasonable estimate of fair compensation for the losses that may reasonably be anticipated from the circumstances of unexcused delay; and (2) that, in recognition of the acknowledgments above, the Design-Builder is expressly estopped from arguing, and waives any rights it may have to argue, that the liquidated damages provided for herein are a penalty and that they are not enforceable. (EE) Convenience Termination. The Town may exercise its right of convenience termination under this Design-Build Contract in its discretion. The exercise by the Town of its right of convenience termination under any provision of this Design-Build Contract shall not be deemed a breach of any implied duty of good faith dealing or a Town Event of Default nor shall any damages be payable by the Town on account thereof. The only compensation payable by the Town upon the exercise of its convenience termination option shall be any amounts specified in Section 12.6 (Town Convenience Termination Rights) in connection therewith.
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ARTICLE 2

DESIGN-BUILDER REPRESENTATIONS AND WARRANTIES
SECTION 2.1. REPRESENTATIONS AND WARRANTIES OF THE DESIGNBUILDER.

In addition to any other representations and warranties made by the DesignBuilder in this Design-Build Contract, the Design-Builder represents and warrants that:
(A) Existence and Powers. The Design-Builder is a corporation, having its principal office at 555 Exchange Court, Livermore, California 94550. Such corporation is duly organized, validly existing and in good standing under the laws of the State and has the authority to do business in the State and in any state in which it conducts its activities, with the full legal right, power and authority to enter into and perform its obligations under this Design-Build Contract.
(B) Due Authorization and Binding Obligation. This Design-Build Contract has been duly authorized, executed and delivered by all necessary corporate action of the Design-Builder and constitutes a legal, valid and binding obligation of the Design-Builder, enforceable against the Design-Builder in accordance with its terms, except to the extent that its enforceability may be limited by the Bankruptcy Law or by equitable principles of general application.
(C) No Conflict. Neither the execution nor delivery by the Design-Builder of this Design-Build Contract nor the performance by the Design-Builder of its obligations in connection with the transactions contemplated hereby nor the fulfillment by the DesignBuilder of the terms or conditions hereof (1) conflicts with, violates or results in a breach of any constitution, law, governmental regulation, by-laws or certificates of incorporation applicable to the Design-Builder or (2) conflicts with, violates or results in a breach of any order, judgment or decree, or any contract, agreement or instrument to which the Design-Builder or any of its Affiliates is a party or by which the Design-Builder or any of its Affiliates or any of its properties or assets are bound, or constitutes a default under any of the foregoing. (D) No Commitments Limiting Ability to Perform Contract Obligations. The Design-Builder has no commitments, obligations, or impediments of any kind that would have a material and adverse impact on the ability of the Design-Builder to perform the Contract Obligations in accordance with the Contract Standards. The Design-Builder covenants that it will not enter into any such commitment throughout the Term. (E) No Approvals Required. No approval, authorization, order or consent of, or declaration, registration or filing with, any Governmental Body is required for the valid execution and delivery of this Design-Build Contract by the Design-Builder except as such have been duly obtained or made.
(F) Licensing and Registration Requirements. The Design-Builder together with its Subcontractors possess all licenses required under Applicable Law to perform all services required of the Design-Builder under this Design-Build Contract and is not in violation of any of the terms or conditions of such licenses. The Design-Builder is registered with all appropriate Governmental Bodies to the extent necessary to perform all services required of the Design-Builder under this Design-Build Contract.
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(G) No Litigation. There is no legal proceeding, at law or in equity, before or by any court, arbitral tribunal or other Governmental Body pending or, to the best of the Design-Builder’s knowledge after due inquiry, overtly threatened or publicly announced against the Design-Builder, in which an unfavorable decision, ruling or finding could reasonably be expected to have a material and adverse effect on the execution and delivery of this DesignBuild Contract by the Design-Builder or the validity, legality or enforceability of this DesignBuild Contract against the Design-Builder, or any other agreement or instrument entered into by the Design-Builder in connection with the transactions contemplated hereby, or on the ability of the Design-Builder to perform its obligations hereunder or under any such other agreement or instrument.
(H) Claims and Demands. There are no material and adverse claims or demands based in environmental, contract or tort law pending or threatened against the Design-Builder or any of its Affiliates with respect to any facilities designed or constructed by the Design-Builder or any of its Affiliates that would have a material and adverse effect upon the ability of the Design-Builder to perform the Contract Obligations. (I) Applicable Law Compliance. To the best of its knowledge after due inquiry, the Design-Builder and its Affiliates have no material violation of any law, order, rule or regulation with respect to any facilities designed or constructed by the Design-Builder or any of its Affiliates.
(J) Information Supplied by the Design-Builder. The information supplied and representations and warranties made by the Design-Builder in all submittals made in response to the RFQ with respect to the Design-Builder (and to its knowledge after due inquiry, all information supplied in such submittals with respect to any Affiliate or Subcontractor) are true, correct and complete in all material respects.
(K) Intellectual Property. The Design-Builder owns, or has sufficient rights to use, all Intellectual Property necessary for the Project without any material conflict with the rights of others.
(L) Practicability of Performance. Subject to, and in accordance with, the terms of this Design-Build Contract, the Design-Builder assumes the risk of the practicability and possibility of performance of the Contract Obligations in compliance with the requirements of the Contract Standards on the scale, within the time for completion, and in the manner required hereunder, and agrees that sufficient consideration for the assumption of such risk is included in the Contract Compensation.
(M) Required Insurance. Concurrently with the execution of this DesignBuild Contract, the Design-Builder has provided the Town with certificates of insurance for all Required Insurance specified in Appendix 10 (Insurance Requirements) to be in effect as of the Contract Date. The Required Insurance is in compliance with the requirements of Section 13.1 (Insurance).
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ARTICLE 3
TERM
SECTION 3.1. EFFECTIVE DATE AND TERM.
(A) Term. This Design-Build Contract shall become effective, and the term hereof (the “Term”) shall commence, on the Contract Date. The Term shall continue to the Expiration Date or, if this Design-Build Contract is earlier terminated by either party in accordance with their respective termination rights under Article 12 (Breach, Default, Remedies and Termination), to the Termination Date.
(B) Accrued Rights. No termination of this Design-Build Contract shall:
(1) Limit or otherwise affect the respective rights and obligations of the parties hereto accrued prior to the date of such termination; or (2) Preclude either party from impleading the other party in any Legal Proceeding originated by a third-party as to any matter occurring during the Term.

SECTION 3.2. SURVIVAL.

Notwithstanding any other provision of this Design-Build Contract, this Section and the following provisions hereof shall survive the expiration or any earlier termination of this Design-Build Contract:
(1) Article 2 (Design-Builder Representations and Warranties); (2) Section 4.8 (Ownership and Use of Documents and Information); (3) Section 5.8(F) (Elective Continuance of the Project by the Parties on Other Bases);
(4) Section 5.8(G) (Elective Continuance of the Project by the Town with Other Contractors; Project Documents);
(5) Section 7.2(G); (Non-Discrimination in Employment); (6) Section 9.9 (Interest on Overdue Obligations);
(7) Section 9.10 (Retention And Audit of Books and Records); (8) Section 10.3 (Project Warranties Not Exclusive);
(9) Article 11 (Dispute Resolution);
(10) Article 12, as applicable to the obligations of the parties following the Termination Date (Breach, Default, Remedies and Termination); (11) Article 15, including all of the indemnities, limitations and releases set forth therein (Indemnification);
(12) Section 17.7 (Property Rights);
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(13) Section 17.13 (Confidentiality);
(14) Attachment 8D (Anticipated Design-Build Period Work Cost Schedule and Design-Builder Contingency) of Appendix 8 (Design-Build Price) regarding Subcontractor and surety recoveries;
(15) Appendix 10 (Insurance Requirements);
(16) All provisions of this Design-Build Contract with respect to payment obligations of the Design-Builder or the Town accrued prior to the Termination Date; (17) Any other provisions which either expressly or by their context or inherent character should survive expiration or earlier termination of this Design-Build Contract or the completion of the Contract Obligations; and (18) Any provisions necessary to give effect to the provisions referenced or described in this Section 3.2 (Survival).
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ARTICLE 4

GENERAL PERFORMANCE REQUIREMENTS
SECTION 4.1. PROJECT SCOPE AND PERSONNEL.
(A) Project Scope Generally. The Project and the Project Sites are generally described in Appendix 1. The Design-Builder recognizes that the Project will ultimately be defined by the Baseline Design Documents, which will be developed by the Design-Builder as part of the Preliminary Services.
(B) Pricing Established on the Contract Date. The parties acknowledge and agree that the not-to-exceed limit for the Phase 1a Preliminary Services Fee was negotiated by the parties prior to the Contract Date and the Design-Builder Fee was proposed by the DesignBuilder as part of the Statement of Qualifications, and both were included in this Design-Build Contract as executed on the Contract Date, and shall not be the subject of (1) any Early Work Package Submittal or any Early Work Package Amendment, and (2) the GMP Submittal or the GMP Amendment.
(C) Pricing Established Subsequent to the Contract Date. The parties further acknowledge and agree that all other elements of pricing provided for in this DesignBuild Contract (including the Subsequent Preliminary Services Phase Preliminary Services Fees, the General Conditions Fee and the Guaranteed Maximum Price) are to be negotiated by the parties subsequent to the Contract Date in connection with establishing the applicable Subsequent Preliminary Services Phase Preliminary Services Amendment, any Early Work Package Amendment and the GMP Amendment in accordance with the terms and conditions of this Design-Build Contract. The parties acknowledge that the General Conditions Fee is intended to fully compensate the Design-Builder for General Conditions Costs as defined in Appendix 8 (Design-Build Price). The Town reserves the right to transition the Phase 1a Preliminary Services Fee, any Subsequent Preliminary Services Phase Preliminary Services Fee, the Design-Builder Fee, the General Conditions Fee and/or the Guaranteed Maximum Price to a lump sum basis.

SECTION 4.2. DESIGN-BUILDER RESPONSIBILITIES GENERALLY. (A) Reliance. The Design-Builder acknowledges and agrees that the Town is entering into this Design-Build Contract in reliance on the Design-Builder’s expertise with respect to the performance of the Contract Obligations. The Design-Builder recognizes that the Town’s sole purpose is to provide an essential public service and that the achievement of Substantial Completion by the Scheduled Substantial Completion Date and Final Completion by the date specified in Section 8.4 (Final Completion) is critically important to the Town. The Design-Builder agrees that it will be relieved of its performance obligations under this DesignBuild Contract solely to the extent provided in Article 14 (Uncontrollable Circumstances) with respect to the occurrence of Uncontrollable Circumstances. (B) Scope of the Contract Obligations. The Contract Obligations are divided into the Phase 1a Preliminary Services, the Subsequent Preliminary Services Phase Preliminary Services, the Design-Build Period Work and the Warranty Work, each as more particularly described in Article 5 (Preliminary Services), Article 6 (Design-Build Work), Article 8 (Substantial Completion and Final Completion) and Article 10 (Project Warranties). The Design-Builder recognizes that, notwithstanding this division, the Contract Obligations may overlap and agrees to perform all Contract Obligations in accordance with the Contract Standards. In no event shall the Design-Builder commence with any Early Work Package prior to the execution of an Early Work Package Amendment and the issuance by the Town of the 278
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associated Notice to Proceed in accordance with Section 5.6(H) (Limited Authorization to Proceed; Commencement of Early Work Package). In no event shall the Design-Builder commence with any portion of the Design-Build Period Work authorized in a Limited Notice to Proceed prior to the issuance by the Town of the associated Limited Notice to Proceed in accordance with Section 6.1(A)(2) (Limited Notice to Proceed). Except in respect of any Early Work Package or in respect of any portion of the Design-Build Work authorized in a Limited Notice to Proceed pursuant to Section 6.1(A)(2) (Limited Notice to Proceed), in no event shall the Design-Builder commence with the Design-Build Period Work prior to the GMP Amendment Date and the issuance of the Notice to Proceed with respect to Design-Build Period Work in accordance with Section 6.1(A)(1) (Notice to Proceed). Following the issuance of the earlier of the Notice to Proceed with Design-Build Period Work in accordance with Section 6.1(A)(1) (Notice to Proceed) or a Limited Notice to Proceed pursuant to Section 6.1(A)(2) (Limited Notice to Proceed), the Design-Builder shall be solely responsible for undertaking and completing the design and for the construction of the Project in accordance with the Contract Documents, including supervision, coordination and administration of all design work and of all Construction, and all other work reasonably inferable from the Contract Documents. (C) Cooperation. The Design-Builder agrees to cooperate with the Town in connection with the work to be performed toward completion of the Project and the work by any Separate Contractor on any Related Project, as well as any other projects the Town or nonTown owner may be undertaking at or near the Project Sites, that could affect the Preliminary Services or the Design-Build Period Work. The Design-Builder recognizes that a cooperative and collaborative environment among all persons engaged in performing such work is essential to the successful implementation of the Project and agrees to use all reasonable efforts to work towards fostering such an environment.
(D) Responsibility for Personnel and Subcontractors. All obligations of the Design-Builder under this Design-Build Contract shall be performed by Design-Builder employees, agents or Subcontractors (subject to the limitations set forth in Article 7 (Management, Labor and Subcontractors)) who are qualified to perform the specific services and meet all licensing and certification requirements of Applicable Law. The Design-Builder shall be fully responsible, in accordance with the terms and conditions of this Design-Build Contract, for all Contract Obligations performed by its employees, agents or Subcontractors. (E) Stationing of Key Personnel. From and after the Construction Commencement Date, the Design-Builder’s construction superintendent shall on a full-time basis be stationed at the Project Site, and the Project Manager and other appropriate Key Personnel shall also be stationed at the Project Site or be available as required for communications with the Town.

SECTION 4.3. ENVIRONMENTAL REVIEW.
(A) CEQA. The Town is complying with CEQA for the Project as described herein. The Town Council approved and certified a Programmatic EIR in November 2022. The Design-Builder shall provide the Town with any reasonably requested assistance associated with CEQA compliance and any environmental mitigation measures required as a result of the CEQA process shall constitute Baseline Design Documents, which the Design-Builder is required to comply with hereunder. The CEQA analysis for the Project will not be completed prior to the Contract Date. The Town will not issue the Notice to Proceed with Design-Build Period Work in accordance with Section 6.1(A)(1) (Notice to Proceed) or a Limited Notice to Proceed pursuant to Section 6.1(A)(2) (Limited Notice to Proceed) with ground disturbing construction (as opposed to ground disturbing investigations) until the CEQA process is successfully completed and all other Construction Commencement Date Conditions are achieved. Prior to the issuance of the Notice to Proceed with Design-Build Period Work in accordance with Section 6.1(A)(1) (Notice to Proceed) establishing the Construction 279
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Commencement Date, the Design-Builder is authorized to perform the following Design-Build Work:
(1) Design Professional Services, including site investigations and the preparation of the Archaeological Construction Monitoring, Mitigation and Preservation Plans;
(2) Design work to support environmental regulatory compliance and early permit coordination; and
(3) Surface, subsurface and geotechnical studies or tests. (B) NEPA. The Town will serve as the lead agency with respect to any necessary NEPA compliance. The Design-Builder shall provide the Town with any reasonably requested assistance associated with NEPA compliance and any environmental mitigation measures required as a result of the NEPA process shall constitute Baseline Design Documents, which the Design-Builder is required to comply with hereunder. The NEPA analysis for the Project will not be completed prior to the Contract Date. The Town will not issue the Notice to Proceed with Design-Build Period Work in accordance with Section 6.1(A)(1) (Notice to Proceed) or a Limited Notice to Proceed pursuant to Section 6.1(A)(2) (Limited Notice to Proceed) with ground disturbing construction (as opposed to ground disturbing investigations) until the NEPA process is successfully completed and all other Construction Commencement Date Conditions are achieved. Prior to the issuance of the Notice to Proceed with Design-Build Period Work in accordance with Section 6.1(A)(1) (Notice to Proceed) establishing the Construction Commencement Date, the Design-Builder is authorized to perform the following Design-Build Work:
(1) Design Professional Services, including site investigations and the preparation of the Archaeological Construction Monitoring, Mitigation and Preservation Plans;
(2) Design work to support environmental regulatory compliance and early permit coordination; and
(3) Surface, subsurface and geotechnical studies or tests.

SECTION 4.4. ACCESS TO AND SUITABILITY OF THE PROJECT SITES. (A) Familiarity with the Project Sites. Prior to the issuance of the earlier of the Notice to Proceed with Design-Build Period Work in accordance with Section 6.1(A)(1) (Notice to Proceed) or a Limited Notice to Proceed pursuant to Section 6.1(A)(2) (Limited Notice to Proceed), the Design-Builder’s agents and representatives shall have inspected and become familiar with the Project Sites, their physical condition relevant to the obligations of the DesignBuilder pursuant to this Design-Build Contract, including surface conditions, normal and usual soil conditions, roads, Utilities, topographical conditions and air and water quality conditions and, as part of the Preliminary Services, shall have developed the Geotechnical Baseline Report, the Geotechnical Evaluation Report and the Contaminated Media Management Plan and other Preliminary Services Deliverable Materials. As of the issuance of the earlier of the Notice to Proceed with Design-Build Period Work in accordance with Section

6.1(A)(1) (Notice to Proceed) or a Limited Notice to Proceed pursuant to Section 6.1(A)(2) (Limited Notice to Proceed), the Design-Builder shall be familiar with all local and other conditions which may be material to the Design-Builder’s performance of the Design-Build Period Work (including transportation; seasons and climate; water tables; typical weather; access, availability, disposal, handling and storage of materials and equipment; and availability and quality of labor and Utilities); the Design-Builder shall have received and reviewed all 280
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information regarding the Project Sites provided to it or developed by it in connection with the Preliminary Services pursuant to this Design-Build Contract; and the Design-Builder shall have made all other site investigations that it deems necessary to make a determination as to the suitability of the Project Sites and to submit its GMP Submittal to the Town in accordance with Section 5.7 (GMP Submittal).
(B) Independent Verification of the Town-Provided Project Sites Information.

The Design-Builder acknowledges that it is responsible for the independent verification and confirmation of any Project Sites information, including geotechnical, soils, utility locations, groundwater levels and other reports, surveys and analyses regarding the Project Sites, supplied to it by or on behalf of the Town and upon which it elects to rely in connection herewith. Except with respect to Differing Site Conditions and Regulated Site Conditions, as and to the extent provided in Section 6.3(D) (Relief for Differing Site Conditions) and (E) (Uncontrollable Circumstance Relief) respectively, no error or omission in any such information shall constitute an Uncontrollable Circumstance, or relieve the Design-Builder from the Contract Obligations or entitle the Design-Builder to any increase in compensation hereunder.

Notwithstanding any factual statement, conclusion, or any language or recommendation contained in any information supplied to the Design-Builder by or on behalf of the Town, the Design-Builder assumes full responsibility for inspecting the Project Sites and for the means and methods of construction that it employs when performing the Design-Build Work. (C) Access to the Project Sites. Subject to the provisions of this Section

4.4(C), the Design-Builder shall have access to the Project Sites for the purposes of performing the Contract Obligations, including such surface, subsurface and geotechnical studies or tests required to be performed as part of the Preliminary Services and as deemed necessary by the Design-Builder prior to the commencement of Construction in accordance with Good Engineering and Construction Practice. Such access shall be subject to the Town’s prior approval, which shall not be unreasonably withheld, as to time and scope, and shall be subject to all Town procedures and requirements regarding Project Sites security and any applicable easement or right of way restrictions. The Design-Builder shall perform all such activities in accordance with the Contract Standards, including the specific requirements set forth in Appendix 2 (Preliminary Services) and Appendix 5 (General Design-Build Work Requirements), and shall provide the Town with all reports or analyses generated by such activities promptly after such reports or analyses are generated. Except to the extent provided in Section 6.4 (Regulated Site Conditions) with respect to Regulated Site Conditions, the Design-Builder shall assume all risks associated with such activities and shall indemnify, defend and hold harmless the Town Indemnitees in accordance with and to the extent provided in Article 15 (Indemnification) from and against all Loss-and-Expense resulting therefrom. Following the issuance of the Notice to Proceed with Design-Build Period Work and for the duration of the Design-Build Period, the Design-Builder shall have all Project Sites access rights as are necessary for the performance of the Design-Build Work in accordance with the Contract Documents. Notwithstanding any of the foregoing, the Design-Builder shall not access portions of the alignment until the Town has obtained legal access rights, and the DesignBuilder shall at all times comply with the Project Sites access requirements and restrictions set forth in the Contract Documents, including Appendix 5 (General Design-Build Work Requirements), and shall coordinate the Design-Build Work in accordance with Section 6.13 (Interface and Coordination with Town, Utilities and Other Contractors). (D) Core Collection System Rights of Way. The Town shall acquire all easements or rights of way necessary for the Core Collection System Rights of Way. The Design-Builder shall comply with all conditions of all Non-Governmental Approvals. Upon such acquisition, the Town shall notify the Design-Builder, and the Design-Builder shall thereafter have access rights in respect thereof in accordance with Section 4.4(C) (Access to the Project Sites). The Town shall use all reasonable efforts to inform the Design-Builder of its progress toward acquiring such.
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(E) Export Pipeline System Rights of Way. The Town shall acquire all easements or rights of way necessary for the Export Pipeline System Rights of Way, including the UPRR and Caltrans crossings. The Design-Builder shall comply with all conditions of all Non-Governmental Approvals. Upon such acquisition, the Town shall notify the DesignBuilder, and the Design-Builder shall thereafter have access rights in respect thereof in accordance with Section 4.4(C) (Access to the Project Sites). The Town shall use all reasonable efforts to inform the Design-Builder of its progress toward acquiring such. (F) Project Sites Signage. The Design-Builder shall provide all Project Sites signage, including directional, safety, information, and warning signs in accordance with the Contract Standards.

SECTION 4.5. INFORMATION PROVIDED BY OR ON BEHALF OF THE TOWN.
(A) Generally. The Town has made data and information available to the Design-Builder on the Project website. The Town makes no representation or warranty with respect to any information provided to the Design-Builder by or on behalf of the Town in connection with this Design-Build Contract. The Design-Builder shall assess all risks related to the Project and independently verify and confirm all information supplied to it by or on behalf of the Town and upon which the Design-Builder elects to rely in connection herewith.

Except as may reasonably be requested by the Design-Builder, agreed upon by the Town in its discretion, and expressly established in the GMP Amendment or any Early Work Package Amendment, the Design-Builder shall have no right to relief hereunder or to make any claim against the Town, or to seek any adjustment to the Contract Compensation or the Scheduled Substantial Completion Date as the result of any error, omission or insufficiency relating to any information provided to the Design-Builder by or on behalf of the Town in connection with this Design-Build Contract.

SECTION 4.6. COMPLIANCE WITH APPLICABLE LAW.
(A) Compliance with Applicable Law Generally. The Design-Builder shall, and shall cause all Subcontractors to, perform the Contract Obligations in accordance with Applicable Law and all other applicable Contract Standards. The Design-Builder shall provide all notices required by Applicable Law and the Contract Standards. The incorporation, reference or citation of specific statutes or other parts of Applicable Law in the Contract Documents is not intended, nor shall it be construed, to limit the generality of the DesignBuilder’s and all Subcontractors’ obligations to comply with Applicable Law (whether or not specifically incorporated or referenced in the Contract Documents). (B) Compliance with Conditions in Governmental Approvals. The DesignBuilder shall comply with all conditions and requirements of all Governmental Approvals required to be made, obtained or maintained under Applicable Law in connection with the performance of the Contract Obligations, including the Town Managed Governmental Approvals. The Design-Builder shall report to the Town, immediately upon obtaining knowledge thereof, all violations of the terms and conditions of any Governmental Approval or Applicable Law pertaining to the Project. The Town, in its capacity as the counterparty to the Design-Builder under this Design-Build Contract, shall have the right independently to enforce compliance with this Design-Build Contract regarding the requirements of any Governmental Approval regardless of whether a concurrent or different regulatory enforcement action has been undertaken by any other Governmental Body. The Design-Builder shall comply with and perform all Environmental Mitigation Measures in a timely manner to the extent required under applicable Governmental Approvals. Any violations of or noncompliance with any Governmental Approval caused by the Design-Builder violating or not being in compliance with 282
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a Governmental Approval shall be at the sole risk of the Design-Builder and shall not be a basis for Uncontrollable Circumstance relief under this Design-Build Contract. (C) Fines, Penalties and Remediation. In the event that the Design-Builder or any Subcontractor fails at any time to comply with Applicable Law with respect to the Design-Build Work, the Design-Builder shall:
(1) Promptly respond to any notice of non-compliance, warning letter, notice of violation or other enforcement action and seek amicable resolution of the issues; (2) Immediately correct such failure and resume compliance with Applicable Law;
(3) Pay any resulting fines, assessments, levies, impositions, penalties or other charges;
(4) Indemnify, defend and hold harmless the Town Indemnitees in accordance with and to the extent provided in Article 15 (Indemnification) from and against all Loss-and-Expense resulting therefrom;
(5) Make all changes in performing the Contract Obligations which are necessary so that the failure of compliance with Applicable Law will not recur; and (6) Comply with any corrective action plan filed with or mandated by any Governmental Body in order to remedy a failure of the Design-Builder to comply with Applicable Law.
(D) Compliance with Conditions in Grants. The parties acknowledge and agree that the Town intends to utilize Grants for the entirety of its financing structure. The Design-Builder hereby acknowledges that the utilization of the Grants is predicated on complying with all applicable requirements of the Grants, including, as applicable, complying with Davis-Bacon Act wage requirements, the Disadvantaged Business Enterprise Program, Build America Buy America Act, American Iron and Steel requirements and Section 3 of the Housing and Urban Development Act of 1968. The Design-Builder shall comply will all such requirements, including all applicable provisions identified in Appendix 12 (Certain Grant Requirements and Guidelines). The Design-Builder represents and warrants that the costs of compliance with all federal or state programs that may be required in order to obtain the Grants (including the requirements identified in Appendix 12 (Certain Grant Requirements and Guidelines) are incorporated into the Phase 1a Preliminary Services Fee as of the Contract Date. Only the addition of any new federal or state project funding requirements that did not exist as of the GMP Submittal shall constitute an Uncontrollable Circumstance.

SECTION 4.7. ENGAGEMENT OF TOWN REPRESENTATIVES.

The Design-Builder shall fully cooperate with the Owner Representative and any other representative designated by the Town from time to time. The services of the Owner Representative and other Town-designated representatives may include the following:
(1) Reviewing drawings, plans and specifications for compliance with the Contract Documents;
(2) Reviewing proposed changes to the Baseline Design Documents; 283
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(3) Determining the completion of specified portions of the Design-Build Work and reviewing the release of funds to the Design-Builder pursuant hereto; (4) Reviewing and monitoring Construction progress, scheduling, payments and procedures;
(5) Monitoring testing undertaken by the Design-Builder; (6) Assisting the Town in reviewing the validity of the Design-Builder’s written notice that an Uncontrollable Circumstance has occurred; and (7) Reviewing and advising the Town with respect to material changes to the Project during the Term.

It is understood that the services intended to be provided by the Owner Representative shall be of an observational and review nature only, and that the Owner Representative shall not have authority to interfere with, halt or delay in any way the construction of the Project or to require or approve changes to the Design-Builder’s Baseline Design Documents or plans and specifications made in accordance therewith. Any fees of the Owner Representative shall be paid by the Town. Nothing in this Section 4.7 shall be construed to limit the right of any Town personnel or representative having the authority to protect the health and safety from inspecting the Project or otherwise exercising any power permitted under Applicable Law.

SECTION 4.8. OWNERSHIP AND USE OF DOCUMENTS AND
INFORMATION.

The Design-Builder acknowledges and agrees that the Town shall own exclusively the Deliverable Material and any and all other documents and information in whatsoever form and character produced or maintained in accordance with, pursuant to, or as a result of this Design-Build Contract. All such documents and information may be used as the Town determines and shall be delivered to the Town at no additional cost to the Town as required hereunder, upon request, upon Project completion or upon termination of this DesignBuild Contract. If the Town uses any such documents and material for a purpose other than the Project, such use shall be at the Town’s sole risk and liability.

SECTION 4.9. MONTHLY PROGRESS REPORTS.

The Design-Builder shall provide the Town and the Owner Representative with monthly written reports (“Monthly Progress Report”) prepared in accordance with the Contract Standards, covering the Project and addressing work performed during the past month, percentage of work completion and compliance with the Project Schedule. The Design-Builder shall describe Project issues, problems or concerns that the Town should be made aware of and how the Design-Builder proposes to address them in each Monthly Progress Report. The Monthly Progress Report shall include a description of the work planned for the next three months. The Monthly Progress Report shall also include cash flow reports and forecasts that satisfy the Town’s reporting requirements for the Grants. The Town’s and the Owner Representative’s receipt or acceptance of the Monthly Progress Report (or any revised Monthly Progress Report) shall not bind the Town in any manner. Thus, the Town’s and the Owner Representative’s receipt or acceptance of the Monthly Progress Report (or any revised Monthly Progress Report) shall not imply the Town approval or consent to any of the matters set forth therein and shall not limit or otherwise affect the Design-Builder’s obligations to achieve Substantial Completion by the Scheduled Substantial Completion Date and Final Completion by the date specified in Section 8.4 (Final Completion). 284
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ARTICLE 5

PRELIMINARY SERVICES
SECTION 5.1. SCOPE OF THE PRELIMINARY SERVICES.
(A) Generally. The Design-Builder shall render and perform the Preliminary Services to and for the Town in accordance with Appendix 2 (Preliminary Services) and the terms and conditions of this Design-Build Contract. The Design-Builder’s responsibility to perform the Preliminary Services shall include the employment of or the subcontracting for all necessary professionals, technicians and engineers, properly qualified, licensed and skilled in the various aspects of the Preliminary Services, and the performance of all services reasonably inferable from the Contract Documents. The Preliminary Services are intended to be delivered in multiple phases: the Phase 1a Preliminary Services and any Subsequent Preliminary Services Phases. The Town intends to expand the scope of the Preliminary Services to be performed by the Design-Builder under this Design-Build Contract as described in paragraph (C) below.
(B) Phase 1a Base Preliminary Services; Notice to Proceed. The DesignBuilder acknowledges that the Phase 1a Base Preliminary Services are divided into discrete Preliminary Services Tasks identified in Appendix 2 (Preliminary Services) and associated with the advancement of the Phase 1a Base Preliminary Services. The Design-Builder shall commence performing a discrete Preliminary Services Task of the Phase 1a Base Preliminary Services only upon the issuance by the Town Contract Representative of a Notice to Proceed with such discrete Preliminary Services Task of the Phase 1a Base Preliminary Services. In no event shall the Design-Builder be entitled to compensation for the performance of any Preliminary Services Task of the Phase 1a Base Preliminary Services prior to the issuance by the Town of a Notice to Proceed with such discrete Preliminary Services Task of the Phase 1a Base Preliminary Services.
(C) Development of Subsequent Preliminary Services Phase Base Preliminary Services. The parties acknowledge and agree that no Subsequent Preliminary Services Phase Base Preliminary Services were proposed by the Design-Builder as part of the Statement of Qualifications, and therefore are not included in this Design-Build Contract as executed on the Contract Date. The parties further acknowledge and agree that the not-to-exceed limit for any Subsequent Preliminary Services Phase Preliminary Services Fee was not proposed by the Design-Builder as part of the Statement of Qualifications, and therefore not included in this Design-Build Contract as executed on the Contract Date. The Town shall have the discretion to authorize any Subsequent Preliminary Services Phase Preliminary Services Fee pursuant to this Section. This Section is intended to provide the procedure for the Town to expand the scope of the Preliminary Services performed by the Design-Builder under this Design-Build Contract at any time, in its discretion, beyond those services included in the Phase 1a Preliminary Services based, in part, on the recommendations of the Design-Builder, to be delivered in additional phases of the Preliminary Services as Subsequent Preliminary Services Phases defined sequentially as Phase 1b, Phase 1c, Phase 1d, etc. (1) Subsequent Preliminary Services Phase Preliminary Services Submittal. As part of the Phase 1a Base Preliminary Services and concurrently with delivery of the Basis of Design Report delivered to the Town as part of the Phase 1a Base Preliminary Services, the Design-Builder shall recommend, and the parties shall agree upon, the scope of the initial Subsequent Preliminary Services Phase Base Preliminary Services and the discrete Preliminary Services Tasks thereof and, if applicable, the scope of the initial Subsequent Preliminary Services Phase Additional Preliminary Services. The Design-Builder shall 285
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propose the amount of the Subsequent Preliminary Services Phase Preliminary Services Fee and the Subsequent Preliminary Services Phase Preliminary Services Schedule for such initial Subsequent Preliminary Services Phase to the Town pursuant to a Subsequent Preliminary Services Phase Preliminary Services submittal (the “Subsequent Preliminary Services Phase Preliminary Services Submittal” for such Subsequent Preliminary Services Phase). Thereafter, as applicable, as part of the most recent Subsequent Preliminary Services Phase Preliminary Services incorporated into this Design-Build Contract, the DesignBuilder shall recommend, and the parties shall agree upon, the scope of the next Subsequent Preliminary Services Phase Base Preliminary Services and the discrete Preliminary Services Tasks thereof and, if applicable, the scope of the next Subsequent Preliminary Services Phase Additional Preliminary Services.

The Design-Builder shall propose the amount of the Subsequent Preliminary Services Phase Preliminary Services Fee and the Subsequent Preliminary Services Phase Preliminary Services Schedule for such next Subsequent Preliminary Services Phase to the Town pursuant to the applicable Subsequent Preliminary Services Phase Preliminary Services Submittal for such Subsequent Preliminary Services Phase. The scope of any Subsequent Preliminary Services Phase Base Preliminary Services described in the applicable Subsequent Preliminary Services Phase Preliminary Services Submittal shall include the milestones at which the Design-Builder recommends review and update of the Baseline Cost Model and the Baseline Design and Construction Phasing Plan and Schedule (non-guaranteed). Each Subsequent Preliminary Services Phase Preliminary Services Submittal shall be completed and submitted to the Town on a timely basis as required in this Section 5.1(C)(1), and shall remain a firm offer by the Design-Builder for at least 90 days. The Design-Builder shall not condition the Subsequent Preliminary Services Phase Preliminary Services Submittal by inclusion of any requirement that a Subsequent Preliminary Services Phase Preliminary Services Amendment be entered into by the parties or that a Notice to Proceed with a discrete Preliminary Services Task of such Subsequent Preliminary Services Phase Base Preliminary Services be issued by the Town prior to the expiration of such 90-day period. (2) No Material Change to Design Set Forth in Basis of Design Report. The Design-Builder acknowledges the Town’s material interest in each provision of the Basis of Design Report, and agrees that, subject to Section

5.1(C)(3), no material change to the design of the Project set forth in the Basis of Design Report shall be made except with the consent of the Town, which may be withheld or conditioned in its discretion.
(3) Permitted Change to Design Set Forth in Basis of Design Report Made Due to Uncontrollable Circumstances. Upon the occurrence of an Uncontrollable Circumstance after the Basis of Design Report, the DesignBuilder shall promptly proceed, subject to the terms, conditions and procedures set forth in Article 14 (Uncontrollable Circumstances) and subject to the Town’s approval, to make or cause to be made all changes to the design of the Project set forth in the Basis of Design Report reasonably necessary to address the Uncontrollable Circumstance. The Design-Builder shall consult with the Town concerning possible means of addressing and mitigating the effect of any Uncontrollable Circumstance. The parties shall use all reasonable efforts to address all changes to the design of the Project set forth in the Basis of Design Report required due to Uncontrollable Circumstances in a manner that will not impact the critical path of planned Subsequent Preliminary Services Phase Preliminary Services in the applicable Subsequent Preliminary Services Phase Preliminary Services Schedule.
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(4) Subsequent Preliminary Services Phase Preliminary Services Amendment. The agreement of the parties as to the scope of any Subsequent Preliminary Services Phase Base Preliminary Services and the discrete Preliminary Services Tasks thereof and, if applicable, the scope of any Subsequent Preliminary Services Phase Additional Preliminary Services, the amount of the Subsequent Preliminary Services Phase Preliminary Services Fee and the Subsequent Preliminary Services Phase Preliminary Services Schedule for such Subsequent Preliminary Services Phase, as well as to any permitted change to the design of the Project set forth in the Basis of Design Report, shall be effectuated through a Contract Amendment authorizing such Subsequent Preliminary Services Phase Preliminary Services (each, a “Subsequent Preliminary Services Phase Preliminary Services Amendment”). Without limiting anything set forth in this Design-Build Contract, the Subsequent Preliminary Services Phase Preliminary Services Amendment may include modifications to any other provisions of this Design-Build Contract as and to the extent agreed to by the parties. In the event the parties elect to execute a Subsequent Preliminary Services Phase Preliminary Services Amendment, the date of execution and delivery thereof shall constitute the applicable “Subsequent Preliminary Services Phase Preliminary Services Amendment Date” hereunder.

All work performed pursuant to a Subsequent Preliminary Services Phase Preliminary Services Amendment shall constitute Preliminary Services hereunder and shall be performed in accordance with Appendix 2 (Preliminary Services), the Health and Safety Plan and the Quality Management Plan, and the terms and conditions of this Design-Build Contract.
(D) Subsequent Preliminary Services Phase Base Preliminary Services; Notice to Proceed. The Design-Builder acknowledges that it is intended that the Subsequent Preliminary Services Phase Base Preliminary Services for a Subsequent Preliminary Services Phase will be divided into discrete Preliminary Services Tasks and identified in Appendix 2 (Preliminary Services) and associated with the advancement of such Subsequent Preliminary Services Phase Base Preliminary Services. The Design-Builder shall commence performing a discrete Preliminary Services Task of any Subsequent Preliminary Services Phase Base Preliminary Services only upon the issuance by the Town Contract Representative of a Notice to Proceed with such discrete Preliminary Services Task of such Subsequent Preliminary Services Phase Base Preliminary Services. In no event shall the Design-Builder be entitled to compensation for the performance of any Preliminary Services Task of any Subsequent Preliminary Services Phase Base Preliminary Services prior to the issuance by the Town of a Notice to Proceed with such discrete Preliminary Services Task of such Subsequent Preliminary Services Phase Base Preliminary Services.
(E) No Obligation of Town to Enter Into Any Subsequent Preliminary Services Phase Preliminary Services Amendment. Notwithstanding the intent of the parties as expressed in Section 5.1(C) (Development of Subsequent Preliminary Services Phase Preliminary Services) and (D) (Subsequent Preliminary Services Phase Base Preliminary Services; Notice to Proceed), the Town has no obligation whatsoever to negotiate with the Design-Builder to enter into a Subsequent Preliminary Services Phase Preliminary Services Amendment. The Town, in its discretion, may elect not to commence or continue negotiations and not to enter into and execute any Subsequent Preliminary Services Phase Preliminary Services Amendment for any reason. The Design-Builder acknowledges and agrees that no failure by the Town to negotiate or to enter into a Subsequent Preliminary Services Phase Preliminary Services Amendment shall entitle the Design-Builder to make any claim for damages or compensation as a result of any such failure, and all such claims are hereby waived and released by the Design-Builder. The Design-Builder acknowledges and agrees that neither the intent of the parties to negotiate and enter into a Subsequent Preliminary Services Phase Preliminary Services Amendment, nor the conduct or discontinuance of any such 287
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negotiations, shall be construed to limit or affect the Town’s right to off-ramp or terminate this Design-Build Contract for its convenience at any time as provided in Section 12.6 (Town Convenience Termination Rights).

SECTION 5.2. CHANGES TO THE SCOPE OF THE PRELIMINARY
SERVICES.
(A) Generally. The Town shall have the right to make changes to the scope of the applicable Preliminary Services for any Preliminary Services Phase set forth in Appendix 2 (Preliminary Services) at any time, in its discretion, by written notice to the DesignBuilder, subject to the terms and conditions of this Section. Changes to the scope of the applicable Preliminary Services for any Preliminary Services Phase may be made by the Town to account for an Uncontrollable Circumstance or any other reason determined by the Town. (B) Additional Preliminary Services. Except as otherwise specifically provided in this Section, the Design-Builder shall be entitled to an equitable adjustment to the applicable Preliminary Services Fee (as stated in Appendix 2 (Preliminary Services)) and, as agreed to by the Town, the applicable Preliminary Services Schedule for a Preliminary Services Phase in the event of any expansion of the scope of the applicable Base Preliminary Services pursuant to this Section, which are designated as Additional Preliminary Services for such Preliminary Services Phase. Any expansion of the scope of any Base Preliminary Services under this subsection (B) and the corresponding equitable adjustment to the applicable Preliminary Services Fee and, as agreed to by the Town, the applicable Preliminary Services Schedule for such Preliminary Services Phase shall be reflected in a Change Order, a Contract Amendment or a Contract Administration Memorandum (as described in Section 2.2.11 of Appendix 2 (Preliminary Services)). The Design-Builder shall not be entitled to compensation for any Additional Preliminary Services beyond the scope of the applicable Base Preliminary Services unless, prior to the performance of any such Additional Preliminary Services, the Design-Builder shall have received express written authorization from the Town to perform such Additional Preliminary Services. In the absence of any the Town-directed change to the scope of any Base Preliminary Services reflected in a Change Order or a Contract Amendment, the Design-Builder shall have no obligation to perform work outside the scope of such Base Preliminary Services.
(C) Additional Preliminary Services Resulting From Delay. Except as otherwise set forth in Section 6.5 (Permitting Responsibilities and Schedule), extra costs resulting from delays caused by Uncontrollable Circumstances, shall be deemed to be costs resulting from Additional Preliminary Services for such Preliminary Services Phase, provided the Design-Builder demonstrates that the costs claimed (1) resulted from time or expenses actually incurred in performing the applicable Base Preliminary Services, (2) were incurred by Design-Builder as a direct result of the delay and not otherwise within the scope of the applicable Base Preliminary Services, and (3) are documented to the Town’s reasonable satisfaction.
(D) Exclusions from Additional Preliminary Services. Additional Preliminary Services shall not include work or services necessary because of errors, omissions or conflicts of any type in the Design-Builder’s plans and specifications or other Preliminary Services Deliverable Material. All such work or services shall constitute Phase 1a Base Preliminary Services or Subsequent Preliminary Services Phase Base Preliminary Services, as applicable, and shall be performed at no cost to the Town, and shall include any required corrections or revisions to reports, plans or specifications.
(E) Changes that Reduce the Scope of the Preliminary Services. The Town shall have the right to reduce the scope of the Preliminary Services at any time by written notice to the Design-Builder. Changes to the Preliminary Services that reduce the scope of the 288
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Preliminary Services shall be effective upon the delivery of the written notice by the Town pursuant to this subsection (E). Any reduction in the scope of the Preliminary Services shall result in an appropriate reduction in the applicable Preliminary Services Fee and an adjustment to the applicable Preliminary Services Schedule, which shall be reflected in a Change Order or a Contract Amendment.

SECTION 5.3. PRELIMINARY SERVICES SCHEDULE.

The Phase 1a Preliminary Services Schedule is set forth in Attachment 2B-1 (Phase 1a Preliminary Services Schedule) and shall be updated as provided in Appendix 2 (Preliminary Services). The Design-Builder acknowledges that time is of the essence with respect to major milestones and in relation to days from completion of all prerequisites in the performance of the Phase 1a Preliminary Services and agrees to complete the Phase 1a Preliminary Services in a diligent, efficient and timely manner in accordance with Good Engineering and Construction Practice and in any event in accordance with the Phase 1a Preliminary Services Schedule.

As part of any Subsequent Preliminary Services Phase Preliminary Services Amendment, the applicable Subsequent Preliminary Services Phase Preliminary Services Schedule will be set forth in an Attachment substantially in the form of Attachment 2B-2 (Form of Subsequent Preliminary Services Phase Preliminary Services Schedule) and shall be updated as provided in Appendix 2 (Preliminary Services). The Design-Builder acknowledges that time is of the essence in the performance of the Subsequent Preliminary Services Phase Preliminary Services and agrees to complete the Subsequent Preliminary Services Phase Preliminary Services in a diligent, efficient and timely manner in accordance with Good Engineering and Construction Practice and in any event in accordance with the applicable Subsequent Preliminary Services Phase Preliminary Services Schedule.

SECTION 5.4. COORDINATION WITH TOWN.
(A) Meetings and Reports Generally. The Design-Builder shall hold periodic meetings and conferences with the Town during the Preliminary Services Period, in accordance with Appendix 2 (Preliminary Services), to verify and confirm that the development of the Project (1) has the full benefit of the Town’s experience and knowledge of existing needs and facilities, (2) is consistent with the Town’s current policies and standards, and (3) is proceeding in accordance with the Preliminary Services Schedule. The Design-Builder shall also keep the Town regularly informed as to the progress of the Preliminary Services through the submittal of Monthly Progress Reports in accordance with the requirements set forth in Section 4.9 (Monthly Progress Reports) and Appendix 2 (Preliminary Services). The Monthly Progress Report shall present Project budget information and indicate amounts billed by Preliminary Services Task by the Design-Builder for the past month, cumulatively to date and the amount of funds remaining. The Monthly Progress Report shall include a section on the progress of the design and list any concerns, actions, changes, and reviews and approvals from the Town that the Design-Builder requires. The Design-Builder shall indicate any Governmental Body, UPRR or Utility requirements and issues that the Town should be aware of. (B) Information Provided by the Town. The Town shall make available for the Design-Builder’s use in the performance of the Preliminary Services all existing plans, maps, field notes, statistics, computations, and other data in the Town’s possession relating to the Project, as reasonably requested in writing by the Design-Builder, at no cost to the DesignBuilder. All such information is provided to the Design-Builder for the sole purpose of the Design-Builder’s convenience and for use in relation to the performance of the Preliminary Services, may not be relied upon by the Design-Builder, and must be verified by the DesignBuilder as provided in subsection (C) of this Section. The Design-Builder shall promptly notify the Town in writing when it reasonably believes or suspects that information provided by the 289
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Town is not accurate or cannot be checked. Any and all information provided by the Town shall remain the property of the Town and shall be returned promptly to the Town upon written request.
(C) Required Design Information. Notwithstanding the provisions of subsection (B) of this Section, the Design-Builder shall be responsible for obtaining and verifying all information required as further described in Appendix 2 (Preliminary Services) in order to properly design the Project so that it is designed, constructed and performs in accordance with Applicable Law and the Contract Standards. (D) Revisions to Drawings and Specifications. Notwithstanding anything in this Design-Build Contract to the contrary, the Design-Builder shall, at no additional expense to the Town, provide reasonable minor revisions to any and all drawings and specifications provided to the Town, whether or not previously reviewed and accepted by the Town, as may be required to satisfy the Preliminary Services established by this Design-Build Contract. It is agreed and understood that the scope of each of the Preliminary Services Tasks in Appendix 2 (Preliminary Services) (Preliminary Services) may require some reasonable minor revisions to drawings and specifications provided to the Town, as the scope of the Project is refined, and that such reasonable minor revisions are included within the existing Preliminary Services under this Design-Build Contract. The Design-Builder shall make, without additional expense to the Town, such reasonable minor revisions or corrections to the Preliminary Services Deliverable Material as may be required.

SECTION 5.5. PROJECT DESIGN.
(A) Design Considerations. The design for the Project undertaken and performed by the Design-Builder shall:
(1) Be undertaken by a design team exercising such degree of care as required for design and engineering services by Good Engineering and Construction Practice, as of the date of this Design-Build Contract, and the Design-Builder shall appoint a design team that:
(a) Is so qualified;
(b) Includes (as required by Applicable Law) licensed or registered professional engineers and architects; and
(c) Has sufficient expertise and experience to expeditiously and efficiently perform all of the design in a proper and professional manner to the standard set out in this Design-Build Contract;
(2) Include specific consideration of “constructability” and “life cycle” cost issues at all stages of design, as appropriate; and
(3) Include consideration of efficient and cost-effective operation and maintenance.
(B) Design-Builder Assumption of Full Design Liability. The Design-Builder acknowledges and agrees that, as provided in Section 6.7 (Final Design Responsibilities and Risk Assumption), if and when a GMP Amendment is executed by the parties (and with respect to any Early Work Package work, when an Early Work Package Amendment is executed by the parties), the Design-Builder will have the sole and exclusive responsibility and liability for the design, construction and performance of the Project in accordance with and subject to the terms and conditions of the Contract Documents. Accordingly, the Design-Builder shall have 290
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the right and the responsibility to develop and provide the Preliminary Design Documents and to perform the Preliminary Services under this Design-Build Contract in a manner that would permit a design-build contractor, acting reasonably and having the experience and qualifications required to successfully undertake and complete the design and construction of a project similar in scale and complexity to the Project, to assume such responsibility and liability. In particular, the Design-Builder shall not propose or agree to any element of the Baseline Design Documents or other work product to be incorporated in any GMP Amendment or Early Work Package Amendment that would, in its reasonable judgment, be inconsistent with the assumption of such responsibility and liability.

SECTION 5.6. EARLY WORK PACKAGES.
(A) Early Work Packages. The parties anticipate that there may be some phases of the Design-Build Work that are ready for commencement before it is appropriate to arrive at an overall agreed-upon Base Guaranteed Maximum Price in accordance with Section

5.7 (GMP Submittal). The Design-Builder shall recommend such phases or elements of the Design-Build Work (“Early Work Packages”) to the Town Contract Representative, as appropriate, through the performance of the Preliminary Services, based on Early Work Package submittals (“Early Work Package Submittals”). The Town shall have the discretion to authorize the commencement of Design-Build Work associated with an Early Work Package pursuant to this Section. The agreement of the parties as to an Early Work Package shall be effectuated through a Contract Amendment authorizing the Design-Build Work associated with the Early Work Package and specifying the terms and conditions of compensation payable to the Design-Builder and the completion dates associated with such Design-Build Work (an “Early Work Package Amendment”). All work performed pursuant to an Early Work Package Amendment shall constitute Design-Build Work hereunder and shall be performed in accordance with the Contract Standards. The Town shall have no obligation to enter into an Early Work Package Amendment. All Early Work Package Amendments agreed upon in accordance with this subsection (A) shall be taken into consideration in the preparation of the GMP Submittal submitted in accordance with Section 5.7 (GMP Submittal). The DesignBuilder shall furnish a Performance Bond and a Payment Bond with a penal sum equal to the guaranteed maximum price or lump sum amount applicable to the Early Work Package, in compliance with the requirements set forth in Section 16.1 (Bonds) prior to the Town’s issuance of a construction NTP for the Early Work Package. (B) Early Work Package Submittals. An Early Work Package Submittal shall include and be based upon the applicable Baseline Design Documents and all other specifications, information, analysis, findings and reports developed by the Design-Builder during the performance of the Preliminary Services as developed to the date of submittal, and shall be prepared in accordance with the Contract Standards. An Early Work Package Submittal shall include the following:

Price Submittal:
(1) a proposed lump sum or guaranteed maximum price, as authorized by the Town, including the terms and conditions of payment, focused solely on the DesignBuild Work associated with the Early Work Package and prepared in accordance with subsection (E) of this Section, together with a description of how such price will impact overall Project costs;
Technical Submittal:
(2) A detailed description of the Design-Build Work associated with the Early Work Package Submittal and the associated Baseline Design Documents; 291
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(3) A proposed schedule for completion of the Design-Build Work associated with the Early Work Package, together with a description of how such work will impact the Project Schedule;
(4) A listing of any assumptions, clarifications or qualifications made by the Design-Builder in providing the Early Work Package Submittal that are material to any part thereof, including a statement as to what information supplied by the Town (if any) the Design-Builder proposes to use as the basis of any portion of its Early Work Package Submittal; and
(5) Any other information reasonably requested by the Town prior to the due date for the Early Work Package Submittal as necessary or appropriate to negotiate and complete the Early Work Package Amendment.
(C) Early Work Package Submittal Revisions. The Design-Builder shall provide the Town with at least seven days’ notice prior to submitting an Early Work Package Submittal for review. The Town will act reasonably in considering any proposed Early Work Package in light of the schedule requirements under this Design-Build Contract. In the event the Early Work Package Submittal does not comply with the Contract Standards, the Town may provide written notice to the Design-Builder of any additions, corrections or revisions required to achieve such compliance. In such event, the Design-Builder, without any increase in the Preliminary Services Fee, shall promptly take all necessary rectification action, making multiple re-submittals if required.
(D) Negotiation and Execution. If the Town agrees to authorize the commencement of a portion of the Design-Build Work under an Early Work Package Submittal, the Design-Builder and the Town shall negotiate and enter into an Early Work Package Amendment. An Early Work Package Amendment at a minimum shall incorporate and definitively address all of the items identified in subsection (B) of this Section, and shall contain any other commercial terms and conditions specific to the Early Work Package, including the rights of the Town to terminate the work being performed pursuant to the Early Work Package Amendment and the right of the Town to direct the Design-Builder to continue performance of the Early Work Package in the event the parties do not enter into a GMP Amendment. Early Work Packages may be structured in a manner that provides for the commencement of the related Design-Build Work at any time determined by the parties. (E) Complete Early Design-Build Work Package Pricing. It is the intention of the parties that each Early Work Package Submittal, and any associated Early Work Package Amendment, include complete pricing for the Design-Build Work to be performed thereunder, including: (1) the maximum cost of the Design-Build Work described in the Early Work Package Submittal excluding the Design-Builder Fee, the General Conditions Fee and contingency; (2) the Design-Builder Fee, attributable to the Design-Build Work described in the Early Work Package Submittal; (3) the General Conditions Fee attributed to the Design-Build Work described in the Early Work Package Submittal; and a contingency amount for such Design-Build Work to be administered in the same manner as the Design-Builder Contingency.

Alternatively, an Early Work Package Submittal may include pricing for all or part of the Design-Build Work on a firm, fixed price basis.
(F) Compensation Payable in Connection With Early Work Packages. The Town shall pay the Early Work Package Price to the Design-Builder for Design-Build Work properly performed and completed pursuant to the terms of the Early Work Package Amendment in accordance with, and subject to the limitations contained in, Appendix 8 (Design-Build Price), notwithstanding the fact that no GMP Amendment will be in effect at the time the parties execute an Early Work Package Amendment. 292
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(G) Design-Builder Representations in an Early Work Package Amendment.

The execution of any Early Work Package Amendment will be deemed to constitute representations by the Design-Builder with respect to the Early Work Package to the same effect as the representations made in Section 5.8(H) (Design-Builder Representations in a GMP Amendment) with respect to the GMP Amendment, with references to Design-Build Work referring to the Early Work Package and references to the Base Guaranteed Maximum Price referring to the Early Work Package Price.
(H) Limited Authorization to Proceed; Commencement of Early Work Package. If the parties have executed and delivered an Early Work Package Amendment, the Town shall issue a limited Notice to Proceed with the Design-Build Work associated with the Early Work Package, subject to this Section. Notwithstanding the issuance of a limited Notice to Proceed with an Early Work Package, the Design-Builder shall not commence any Construction at the Project Sites in connection with such Early Work Package until the DesignBuilder has satisfied the following requirements:
(1) The Design-Builder shall have provided a Performance Bond and a Payment Bond for the Early Work Package, and certified that such Performance Bond and Payment Bond are in full force and effect and in compliance with the requirements set forth in Section 16.1 (Bonds);
(2) The Design-Builder shall have provided the Town with certificates for all Required Insurance in accordance with Section 13.1 (Insurance) and certified that all such policies are in full force and effect and in compliance with the requirements of Section 13.1 (Insurance) and Appendix 10 (Insurance Requirements); (3) The Design-Builder shall have satisfied all requirements of Applicable Law with respect to the commencement of construction and shall comply with all Governmental Approvals required for the commencement of the Construction of the Early Work Package Design-Build Work as well as Governmental Approvals that the Town has determined in its discretion must be obtained prior to the commencement of Construction and provided copies of such Governmental Approvals to the Town. All such Governmental Approvals shall be in full force and effect; and (4) The Design-Builder shall have provided the Town with the final, approved Health and Safety Plan.

The foregoing requirements are in addition to any other preconditions to the commencement of Construction established by the Contract Documents.

SECTION 5.7. GMP SUBMITTAL.
(A) Preliminary Services and GMP Submittal. As part of the Preliminary Services, the parties intend that the Design-Builder will develop the design of the Project to the GMP Submittal Design Level. The GMP Submittal, which is anticipated to be required as part of a Subsequent Preliminary Services Phase Preliminary Services shall be completed and submitted to the Town on a timely basis and shall remain a firm offer by the Design-Builder for at least 90 days. The Design-Builder shall not condition the GMP Submittal by inclusion of any requirement that a GMP Amendment be entered into by the parties or that the Notice to Proceed with Design-Build Period Work in accordance with Section 6.1(A)(1) (Notice to Proceed) or a Limited Notice to Proceed pursuant to subsection 6.1(A)(2) (Limited Notice to Proceed) be issued by the Town prior to the expiration of such 90 day period. The GMP Submittal shall include and be based upon the Baseline Design Documents, Substantial Completion Standards and all other information, analysis, findings and reports developed by the Design-Builder during the performance of the Preliminary Services, and shall be prepared in accordance with 293
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the Contract Standards. The GMP Submittal shall include a price submittal, a technical submittal and an additional information submittal, as follows:

Price Submittal:
(1) A proposed Base Guaranteed Maximum Price, to be incorporated in Section 8.7.2 of Appendix 8 (Design-Build Price), together with all supporting information required by subsection (B) of this Section; (2) A proposed Anticipated Design-Build Period Work Cost Schedule and a proposed Design-Builder Contingency and a proposed Specified Project Risk Contingency, to be prepared in accordance with, and attached as part of Attachment 8D (Anticipated Design-Build Period Work Cost Schedule and Design-Builder Contingency) to Appendix 8 (Design-Build Price);
(3) If applicable and requested by the Town, a list of any proposed allowance items (including a proposed Town Allowance), alternate prices and unit prices; Technical Submittal:
(1) Proposed Baseline Design Documents, to be incorporated in and to constitute Appendix 4 (Baseline Design Documents) of this Design-Build Contract; (2) The final and complete list of required Governmental Approvals for the Project (including Governmental Approval Application Dates and Assumed Approval Issuance Dates, all as required by Appendix 2 (Preliminary Services)) to be incorporated in Appendix 3 (Governmental and Non-Governmental Approvals) of this Design-Build Contract;
(3) A description of any Change-in-Law that has occurred between the Contract Date and the date of the GMP Submittal;
(4) An updated and finalized description of the Project alignment and the Project Sites;
Commercial Terms Submittal:
(1) A proposed Design-Build Period Work Schedule including the Scheduled Substantial Completion Date (expressed as the number of calendar days following the GMP Amendment Date by which Substantial Completion shall be achieved); and (2) A proposed delay liquidated damages amount to be inserted in Section

8.3(C) (Delay Liquidated Damages).

Additional Information Submittal:
(1) A proposed final Subcontracting Plan;
(2) The names of additional proposed Subcontractors (other than any existing Approved Subcontractors) and descriptions of their roles for approval by the Town as Approved Subcontractors;
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(3) A description of the manner in which any Early Work Packages will be integrated into the final Design-Build Work, including price, schedule and performance considerations;
(4) A letter from a surety qualified under Section 16.1 (Bonds) confirming the intent of the surety to provide the Payment Bond and Performance Bond required under such Section on the GMP Amendment Date;
(5) A description of the manner in which the Design-Builder will comply with the skilled and trained workforce requirements of Section 22172(b) of the California Public Contract Code;
(6) A listing of any assumptions, clarifications or qualifications made by the Design-Builder in providing its GMP Submittal that are material to any part thereof, including a statement as to what information supplied by the Town (if any) the DesignBuilder proposes to use as the basis of any portion of its GMP Submittal; and (7) Any other information reasonably requested by the Town prior to the due date for the GMP Submittal as necessary or appropriate to negotiate and complete the GMP Amendment.
(B) Derivation of Proposed Base Guaranteed Maximum Price. The GMP Submittal shall include a detailed and comprehensive description of how the proposed Base Guaranteed Maximum Price was derived and the material factors on which it was based, all in compliance with the requirements for establishing the Base Guaranteed Maximum Price set forth in Appendix 2 (Preliminary Services), together with any other related information required pursuant to this Section. All costs, bids, quotes, estimates and other information supporting the GMP Submittal shall be made available to the Town upon request. The proposed Base Guaranteed Maximum Price and the other elements of the GMP Submittal shall be based upon the risk allocation established by this Design-Build Contract as of the Contract Date, unless the Town, in its discretion, agrees to changes in such risk allocation. (C) Design-Builder Fee. The parties acknowledge and agree that the DesignBuilder Fee was proposed by the Design-Builder as part of the Statement of Qualifications and included in this Design-Build Contract as executed on the Contract Date, and shall not be subject to increase in any Early Work Package, the GMP Submittal or the GMP Amendment. (D) Early GMP Submittal. The parties may agree, each in its discretion, that the GMP Submittal may be made, and the GMP Amendment negotiated, prior to the GMP Submittal Design Level stage. In such event, any Preliminary Services that have not been completed at the time of an early GMP Amendment shall be performed as part of the DesignBuild Work and the compensation therefor paid as part of the Design-Build Price.

SECTION 5.8. GMP AMENDMENT.
(A) Non-Compliant GMP Submittal. In the event the GMP Submittal does not comply with the requirements of this Design-Build Contract, the Town shall provide written notice to the Design-Builder of any additions, corrections or revisions required to achieve such compliance. In such event, the Design-Builder, at its cost and expense, and without any increase in the Preliminary Services Fee, shall promptly take all necessary rectification action, making multiple re-submittals if required. The failure of the Design-Builder to furnish the Preliminary Services and provide the GMP Submittal in accordance with the Contract Standards shall be a material breach of this Design-Build Contract. 295
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(B) Negotiation and Execution of the GMP Amendment. The Town and the Design-Builder acknowledge and agree that each intends to negotiate and enter into a Contract Amendment for the performance of all Construction and all other Design-Build Work necessary to achieve Final Completion (the “GMP Amendment”) based on the GMP Submittal and the completion of the other Preliminary Services. The principles for negotiating the Base Guaranteed Maximum Price are set forth in subsection (C) of this Section. The GMP Amendment at a minimum shall incorporate and definitively address all of the items identified in Section 5.7(A) (Preliminary Services and GMP Submittal). In the event the parties elect to execute the GMP Amendment, the date of execution and delivery thereof shall constitute the “GMP Amendment Date” hereunder, and thereupon the Design-Build Period shall commence.

Without limiting anything set forth in this Design-Build Contract, the parties may enter into a GMP Amendment that includes a fixed lump sum price for completion of the Design-Build Work in lieu of a Base Guaranteed Maximum Price, and such GMP Amendment shall include modifications to the terms and conditions specified herein necessary to effectuate payment for Design-Build Work based upon the fixed lump sum price. In addition, without limiting anything set forth in this Design-Build Contract, the parties may enter into a GMP Amendment that includes fixed lump sum prices for completion of portions of the Design-Build Work and a Base Guaranteed Maximum Price for completion of the balance of the Design-Build Work, and such GMP Amendment shall include modifications to the terms and conditions specified herein necessary to effectuate payment for Design-Build Work based upon such fixed lump sum prices and Base Guaranteed Maximum Price. In addition, the GMP Amendment may include modifications to any other provisions of this Design-Build Contract as and to the extent agreed to by the parties. The parties acknowledge and agree that the GMP Amendment shall be reflected in an amendment and restatement of this Design-Build Contract, and will not be effective except upon approval by the Town Council.
(C) Base Guaranteed Maximum Price Negotiating Principles. Each party acknowledges that it intends to negotiate the Base Guaranteed Maximum Price taking into account the following:
(1) The reasonably estimated costs of completing the design and construction of the Project (including costs payable under Early Work Packages) and achieving Substantial Completion and Final Completion in accordance with the Contract Standards and the cost elements set forth in Appendix 2 (Preliminary Services). Considerations of risk shall be taken into account separately, pursuant to item (2) below. Such costs shall be the basis of the items constituting the Anticipated Design-Build Period Work Cost Schedule.
(2) An amount reasonably attributable to indeterminable costs that, considered individually and valued in the aggregate based on agreed-upon probabilityof-occurrence models adapted specifically to the Project, may be incurred should the risks assumed by the Design-Builder in performing the Design-Build Work occur. Such costs shall be the basis of establishing the Design-Builder Contingency. The risks assumed by the Design-Builder shall be identified in the risk register prepared as part of the Preliminary Services, and include:
(a) The risks identified as excluded from the definitions of “Uncontrollable Circumstances”;
(b) The risk of Subcontractor delay or non-performance; (c) Changes in the scope or cost of Design-Build Work that may occur as the design is advanced from the level set forth in the Baseline Design Documents to a fully complete level;
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(d) The risk that inflation in the cost of commodities, materials, equipment, labor and services necessary for the completion of the Design-Build Work will exceed the level assumed by the parties in establishing the Base Guaranteed Maximum Price under item (1) above;
(e) The risk that it may be necessary to incur additional capital and operating expenses in order to meet the Substantial Completion Standards and achieve Substantial Completion; and
(f) Any other risk specifically referred to herein as a risk to be borne by the Design-Builder in performing the Design-Build Work. (3) The fact that costs associated with Uncontrollable Circumstances are separately compensable from the Design-Build Period Costs that are limited by the Base Guaranteed Maximum Price. Such costs shall be borne by the Town as and to the extent provided in Article 14 (Uncontrollable Circumstances) and shall not be included in the Design-Builder Contingency.
(D) Obligations of the Design-Builder Relating to the GMP Amendment. In connection with a potential GMP Amendment, the Design-Builder shall be obligated (1) to make a complete bona-fide GMP Submittal in accordance with this Section and Section 5.7 (GMP Submittal), and (2) to negotiate in good faith toward a GMP Amendment based on the GMP Submittal, if and to the extent the Town elects pursuant to subsection (E) of this Section to enter into and continue such negotiations. The Preliminary Services do not include negotiating a GMP Amendment, and the Design-Builder represents that the Preliminary Services Fee does not include consideration for the costs and expenses of negotiating the GMP Amendment. The Design-Builder shall bear all such negotiating costs and expenses, whether paid or incurred concurrently with or upon completion of the performance of the Preliminary Services and the preparation and delivery of the GMP Submittal.
(E) No Obligation of the Town to Enter Into a GMP Amendment.

Notwithstanding the intent of the parties as expressed in subsection (B) of this Section, the Town has no obligation whatsoever to negotiate with the Design-Builder to enter into a GMP Amendment. The Town, in its discretion, may elect not to commence or continue negotiations and not to enter into and execute a GMP Amendment for any reason. The Design-Builder acknowledges and agrees that no failure by the Town to negotiate or to enter into the GMP Amendment shall entitle the Design-Builder to make any claim for damages or compensation as a result of any such failure, and all such claims are hereby waived and released by the Design-Builder. The Design-Builder acknowledges and agrees that neither the intent of the parties to negotiate and enter into the GMP Amendment, nor the conduct or discontinuance of any such negotiations, shall be construed to limit or affect the Town’s right to terminate this Design-Build Contract for its convenience at any time as provided in Section 12.6 (Town Convenience Termination Rights).
(F) Elective Continuance of the Project by the Parties on Other Bases. The Town at any time may request a proposal from the Design-Builder or the lead design Subcontractor acting as Engineer-of-Record to provide professional engineering and other services necessary to advance the design of the Project (either partially or to the fully complete level) so that the Project may be procured and constructed on a design-bid-build or other alternative basis. The Design-Builder shall make a bona fide proposal to enter into such services on terms and conditions substantially identical to the terms and conditions of this Design-Build Contract pertaining to the design services element of the Preliminary Services, and to negotiate in good faith to enter into a Change Order with the Town to provide such services. At the Town’s request, the Design-Builder shall cause the lead design Subcontractor 297
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to make such proposal and to negotiate in good faith to enter into a separate agreement with the Town to provide such services.
(G) Elective Continuance of the Project by the Town with Other Contractors; Project Documents. The Town shall have the right at any time in its discretion to proceed to develop and implement the Project with other contractors and service providers. The Town may exercise such right during the performance of the Preliminary Services, upon termination of this Design-Build Contract or upon any failure of the parties to execute a GMP Amendment.

The Town shall have the further right in connection therewith, based on its ownership of the Preliminary Services Deliverable Material as provided in Section 4.8 (Ownership and Use of Documents and Information), to use any Preliminary Services Deliverable Material in any manner it chooses to complete the design and construction of the Project. In such event, the Design-Builder shall be liable for the Preliminary Services Deliverable Material solely to the extent of negligent errors or omissions in the Preliminary Services Deliverable Material, as determined based on the developmental stage of the Preliminary Services Deliverable Material at the time of transfer to the Town and Good Engineering and Construction Practice. This limitation as to the Design-Builder’s liability for the Preliminary Services Deliverable Material is applicable only to the extent the Town determines not to enter into the GMP Amendment or otherwise terminates this Design-Build Contract and is intended to recognize the Town’s investment in the Preliminary Services Deliverable Material and to provide the Town with a meaningful alternative for the design and construction of the Project in such circumstances, while recognizing that the Design-Builder will not have control over the use of the Preliminary Services Deliverable Material in such circumstances and that the Preliminary Services Deliverable Material may not be complete, final, appropriately stamped and/or signed. The Design-Builder acknowledges and agrees that such limitation will have no applicability if the parties enter into the GMP Amendment and proceed with the Design-Build Period Work. (H) Design-Builder Representations in a GMP Amendment. In the event the parties execute a GMP Amendment, the GMP Amendment shall be deemed to constitute a representation by the Design-Builder that:
(1) It has examined, carefully studied, and thoroughly understands the Contract Documents associated with the Design-Build Work; (2) It has thoroughly reviewed and verified all information provided to or obtained by the Design-Builder through the performance of the Preliminary Services, including:
(a) Reports of explorations and tests of subsurface conditions at or contiguous to the Project Sites and all drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Project Sites which have been identified or made available by the Town; and (b) Reports as to Regulated Substances, if any, at the Project Sites which have been identified or made available by the Town; (3) It has become familiar with and is satisfied as to the general, local, and Project Sites conditions that may affect cost, progress, and performance of the DesignBuild Work; (4) It is familiar with and is satisfied as to all Applicable Law that may affect cost, progress, and performance of the Design-Build Work; 298
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(5) It is aware of the nature of the Related Projects and is satisfied that the Design-Build Work can be performed in accordance with the requirements concerning the Related Projects, as set forth in the Contract Documents; (6) It has considered the information known to the Design-Builder, including information commonly known to designers and contractors doing business in the locality of the Project Sites; information and observations obtained from visits to the Project Sites; and the Project Sites-related reports and drawings identified in the Contract Documents, with respect to the effect of such information, observations, and documents on:
(a) The cost, progress, and performance of the Design-Build Work; (b) The means, methods, techniques, sequences, and procedures of construction to be employed by the Design-Builder, including any specific means, methods, techniques, sequences, and procedures of construction expressly required by the Contract Documents; and
(c) Design-Builder’s health and safety precautions and programs; (7) Based on all of the foregoing and the performance of the Preliminary Services, the Project Sites constitute acceptable and suitable sites for the performance of the Design-Build Work;
(8) It does not consider that further examinations, investigations, explorations, tests, studies, or data are necessary for it to enter into the GMP Amendment for the performance of the Design-Build Work for the Base Guaranteed Maximum Price on or before the Scheduled Substantial Completion Date, and in accordance with the other terms and conditions of this Design-Build Contract; (9) The Baseline Design Documents are sufficient to enable the DesignBuilder to determine the Base Guaranteed Maximum Price; and (10) Subject to the terms and conditions of this Design-Build Contract, the Design-Build Work can be completed in accordance with the Contract Standards for the Base Guaranteed Maximum Price by the Scheduled Substantial Completion Date. (I) Performance Bond and Payment Bond. The Design-Builder, as provided in Section 5.6(A) (Early Work Packages) and in Section 16.1 (Bonds), shall provide the Performance Bond and the Payment Bond concurrently with the execution of the GMP Amendment.

SECTION 5.9. APPROVALS REQUIRED PRIOR TO DESIGN-BUILD PERIOD.

The parties acknowledge that the Design-Builder and the Town will be obtaining Governmental and Non-Governmental Approvals during the Preliminary Services Period. The parties further acknowledge that the Town does not intend to execute a GMP Amendment until all Governmental and Non-Governmental Approvals listed in Appendix 3 (Governmental and Non-Governmental Approvals) have been obtained, unless waived in writing by the Town. 299
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ARTICLE 6

DESIGN-BUILD WORK
SECTION 6.1. DESIGN-BUILD PERIOD WORK GENERALLY.
(A) Authorization to Proceed; Commencement and Completion of the DesignBuild Period Work. (1) Notice to Proceed. The Town shall issue the Notice to Proceed with the Design-Build Period Work concurrently with or promptly following the occurrence of the GMP Amendment Date, and following issuance of the Notice to Proceed with Design-Build Period Work the Design-Builder shall promptly proceed to undertake, perform and complete the Design-Build Work in accordance with the Contract Standards; provided, however, that the DesignBuilder shall not commence Construction of the Project until the Construction Commencement Date. The Design-Builder shall be paid the Design-Build Price pursuant to Article 9 (Contract Compensation) as its entitlement to payment of portions of the Design-Build Price arise thereunder.
(2) Limited Notice to Proceed. The Town, in its discretion, may issue a Limited Notice to Proceed with Construction and the specific terms and conditions under which the Design-Builder is authorized to proceed with Construction shall be specified in such Limited Notice to Proceed, and following issuance of such Limited Notice to Proceed the Design-Builder shall promptly proceed to undertake, perform and complete such Design-Build Period Work identified in such Limited Notice to Proceed Construction under the specific terms and conditions specified in the Limited Notice to Proceed and otherwise in accordance with the Contract Standards.
(B) Elements of the Design-Build Period Work. In performing the DesignBuild Period Work generally, the Design-Builder shall, in accordance with the Contract Standards:
(1) Apply for, obtain and maintain any Design-Builder Managed Approvals or any Design-Builder Managed Non-Governmental Approvals required for the DesignBuild Period Work not obtained as of the GMP Amendment Date, and assist the Town in obtaining the Town Managed Governmental Approvals and the Town Managed NonGovernmental Approvals which have not been obtained as of the GMP Amendment Date;
(2) Perform all necessary Project Sites preparation and excavation activities; (3) Demolish and remove any existing improvements at the Project Sites, as and to the extent required by the Baseline Design Documents; (4) Modify, re-route, repair or replace or cause the modification, re-routing, repair, or replacement of, any Utilities, as and to the extent required by the Contract Documents;
(5) Remove from the Project Sites and dispose of any demolition or construction debris resulting from the Design-Build Work and any unused soil excavated therefrom, as well as water from de-watering activities, in an environmentally safe manner;
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(6) Complete the design and construct the Project;
(7) Restore the surface of the Project Sites to the condition prior to construction and consistent with the standards and requirements set forth in Appendix 4 (Baseline Design Documents);
(8) Achieve Substantial Completion; and
(9) Achieve Final Completion,
all so that the Project is suitable and adequate for the purposes hereof. (C) Sequencing and Staging of Design-Build Period Work. The DesignBuilder shall not be limited in the sequencing or staging of the Design-Build Period Work, except to the extent that: (1) the Contract Standards impose limitations, and (2) the Town’s issuances of Limited Notices to Proceed impose limitations. The Town understands and acknowledges that the Design-Builder intends to complete the Design-Build Period Work in stages, whereby particular segments of the Design-Build Period Work will be designed and built prior to the completion of the design of the Project as a whole. Although this Design-Build Contract does not require the Design-Builder to fully complete the entire design of the Project prior to proceeding with particular segments of the Construction of the Project, the DesignBuilder shall comply with all requirements of Applicable Law in performing the Design-Build Work and shall further comply with the design submittal requirements set forth in Section

6.7(C) (Town Review and Comment on Final Design Documents). (D) Construction Work Hours. Without limiting any other requirement hereunder, the Design-Builder shall not perform Construction work outside of the hours authorized for construction for such location under the applicable zoning and building bylaws and ordinances, municipal bylaws and regulations, and restrictive covenants for such location of the applicable Governmental Body with jurisdiction over such location (which may be the Town), or under any applicable Governmental Approvals, or on Sundays or holidays without specific permission from the applicable Governmental Body (which may be the Town). The parties acknowledge that compliance with the Project Schedule is critical, and the Town agrees to act reasonably and cooperate with the Design-Builder in an effort to accommodate reasonable Design-Builder requests to perform Construction work outside the hours specified in the preceding sentence to the extent consistent with Applicable Law. (E) Laydown Areas. Laydown and staging areas for construction materials required for the Design-Build Work shall be located off-Project Site at locations identified and provided by the Design-Builder and shall be identified in the Baseline Design Documents.

Without limiting any other requirement hereunder, all such laydown and staging areas for construction materials required for the Design-Build Work shall comply with all requirements of Applicable Law (including any applicable utility laydown yard ordinance) for such location of the applicable Governmental Body with jurisdiction over such location (which may be the Town).
(F) Design-Build Period Work Schedule and Reports. The initial DesignBuild Period Work Schedule shall be prepared in accordance with Appendices 2 and 5 during performance of the Preliminary Services. Throughout the Design-Build Period, the DesignBuilder shall further update and maintain the Design-Build Period Work Schedule in accordance with Appendix 5 (General Design-Build Work Requirements). The Design-Builder shall provide Monthly Progress Reports, which shall include updates to the Design-Build Period Work Schedule, in accordance with the requirements set forth in Section 4.9 (Monthly Progress Reports) and Appendix 5 (General Design-Build Work Requirements). The Design-Builder acknowledges and agrees that it has a material obligation to provide the Town with, and to 301
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update, maintain and revise, the Design-Build Period Work Schedule throughout the DesignBuild Period in accordance with the Contract Standards. (G) On-Site Meetings and Design and Construction Review. During the Design-Build Period, the Design-Builder, the Town and the Owner Representative shall conduct regular progress and management meetings as set forth in Appendix 5 (General Design-Build Work Requirements). Such meetings shall take place in a field office to be provided by the Design-Builder in accordance with Appendix 5 (General Design-Build Work Requirements) or as otherwise directed by the Town. The Monthly Progress Report shall be prepared by the Design-Builder and provided to the Town and the Owner Representative at least five days prior to each monthly meeting.
(H) Construction Utilities. The Design-Builder shall provide, make all arrangements necessary to secure the availability of all Utilities necessary for the performance of the Design-Build Work. The Design-Builder shall be responsible for the payment of all Utility bills in a timely manner in connection with all Design-Build Work performed from the issuance of the Notice to Proceed with Design-Build Period Work until the Substantial Completion Date.
(I) Quality Assurance and Quality Control. The Design-Builder shall have full responsibility for quality assurance and quality control for the Design-Period Work, including compliance with the Quality Management Plan. Without limiting any other requirement hereunder, the Design-Builder shall perform quality control inspection and testing services to confirm compliance with the Contract Standards. (J) Title and Risk of Loss. Title to the pipes, structures, improvements, fixtures, machinery, equipment and materials constituting the Project shall pass to the Town upon incorporation in the Project or payment therefor by the Town, whichever first occurs, free and clear of all Encumbrances as provided in subsection (K) of this Section. Except to the extent provided in Section 6.19(E) (Payment for Restoration Work and Uninsured Costs), however, the Design-Builder shall bear all risk of loss concerning such pipes, structures, improvements, fixtures, machinery, equipment and materials until the Substantial Completion Date, regardless of the extent to which the loss was insured or the availability of insurance proceeds. The procedures set forth in Section 6.19 (Property Damage During the Design-Build Period) shall be applicable in the event of any damage to, loss or the destruction of the DesignBuild Work at the Project. Notwithstanding anything set forth in this subsection (J) or Section

6.19 (Property Damage During the Design-Build Period), the Design-Builder shall bear all risk of loss concerning any pipes, structures, improvements, fixtures, machinery, equipment or materials required for the Design-Build Work and stored at any location other than the Project, regardless of whether the Town has paid for any such structures, improvements, fixtures, machinery, equipment or materials.
(K) Encumbrances. The Design-Builder shall not directly or indirectly create or permit to be created or to remain, and shall promptly discharge or bond any Encumbrance or Lien (other than Permitted Encumbrances) arising in relation to the Project or the DesignBuild Work. The Design-Builder’s Subcontracts with all materialmen, suppliers, and Subcontractors shall provide that the sole recourse for such materialmen, suppliers, and Subcontractors for non-payment shall be against the Payment Bond or the giving of a Stop Payment Notice under Section 9350 et seq. of the California Civil Code. (L) Notice of Default. The Design-Builder shall provide to the Town, promptly following the receipt thereof, copies of any notice of default, breach or noncompliance received under or in connection with any Governmental Approval, Subcontract, Security Instrument or other transaction agreement pertaining to the Contract Obligations. 302
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(M) Required Project Manager Certification. Any notice, certification, report or application delivered by the Design-Builder to the Town in connection with the Design-Build Work, or payment therefor, under this Article 6, Article 8 (Substantial Completion and Final Completion), Article 9 (Contract Compensation) or any Appendix relating to the performance of the Design-Build Work shall be accompanied by a signed certificate of the Project Manager affirming the accuracy thereof to the best of his or her knowledge. The form of certification required pursuant to this subsection (M) shall comply with all requirements of Applicable Law. (N) Partnering Requirements. The Design-Build Work shall be subject to the Town’s formal partnering requirements, as set forth in Appendix 5 (General Design-Build Work Requirements).
(O) Temporary Project Sites Facilities. The Design-Builder shall be responsible for ensuring that adequate temporary facilities are provided as necessary to enable Subcontractors to perform their work and that provisions have been made for all Project Sites facilities necessary for the Design-Builder to manage, inspect and supervise the Design-Build Work, including all facilities and services the cost of which constitutes a General Conditions Cost.
(P) Sensitivity to Stakeholders. It is the intention of the Town to be sensitive to the needs and concerns of the stakeholders, including the residents of the Town. It is the Design-Builder’s responsibility to adhere to this intent to the best of its ability and in accordance with the approved Stakeholder Outreach Plan to be developed as part of the Preliminary Services. The Design-Builder shall, whenever possible, address stakeholder inquiries about the Project in coordination with the Town, provide to citizens lodging complaints the names and numbers of the Town personnel with whom they can follow up (as provided by the Town), immediately inform the Town of any citizen complaints, and provide for continuous access to all private property affected by the Design-Build Work. (Q) Utility Coordination and Relocation. The parties acknowledge the existence of underground Utility facilities along the alignment of the Project. The DesignBuilder shall use good faith efforts under Good Engineering and Construction Practice to prepare a design that avoids or minimizes conflicts with existing Utility facilities to the extent practicable. The Design-Builder is responsible for coordination with the Utilities and implementing the measures identified in the Utility Relocation Plan developed by the DesignBuilder as part of the Preliminary Services and approved by the Town. Such measures shall be carried out in a manner which will avoid or minimize any delays to the Project. In undertaking excavation and tunneling, the Design-Builder shall comply with California Government Code Section 4216 et seq. Prior to conducting any excavation or trenching, the Design-Builder shall contact the appropriate regional notification center as required by California Government Code Section 4216 et seq. Since the Design-Builder is performing the engineering design work for the Project and the Town is not preparing and providing detailed plans and specifications to the Design-Builder, the parties acknowledge and agree that California Government Code Section 4215 (concerning potential Town responsibility for the removal, relocation or protection of existing main or trunkline Utility facilities) does not apply to the Design-Build Work. The Design-Builder shall provide all Utilities with reasonable notification of the need for the Utility to adjust or relocate any facilities. With respect to Utilities identified in the Utility Relocation Plan prepared as part of the Preliminary Services, such Utilities shall be notified promptly following the finalization of the draft Utility Relocation Plan pursuant to Appendix 2 (Preliminary Services) and in any event shall be provided a minimum of [TBD] days’ notice of the need for the relocation. With respect to Utilities discovered following the commencement of the Construction work, the Design-Builder shall notify the Town of the need for the Utility relocation and shall meet with the Town to discuss potential “work arounds” so as to minimize any schedule disruption and associated additional costs. If the parties agree that the best course of action is to seek a Utility relocation, the Design-Builder shall notify the Utility on 303
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behalf of the Town of the required action. In the event that a Utility is uncooperative or notifies the Design-Builder that it is unable to comply with the notice provided by the Design-Builder, the Design-Builder shall immediately notify the Town so that the Town can exercise any legal rights it may have. To the extent that the discovery of the need for the Utility relocation constitutes a Differing Site Condition, the Design-Builder shall be entitled to Uncontrollable Circumstance relief pursuant to Section 6.3(D) (Relief for Differing Site Conditions); provided, however, that the Design-Builder shall not be entitled to recover costs associated with a delay for the first [TBD] days of delay caused by the need for a Utility relocation. [Note: The number of days’ notice for each Utility shall be developed as part of the Preliminary Services.] SECTION 6.2. CONSTRUCTION COMMENCEMENT DATE.
(A) Construction Commencement Date Generally. Except with respect to Early Work Packages as provided in Section 5.6 (Early Work Packages) and except as authorized in a Limited Notice to Proceed as provided in Section 6.1(A)(2) (Limited Notice to Proceed), in no event shall the Design-Builder commence with the Construction of the Project prior to the “Construction Commencement Date”. The Construction Commencement Date shall not occur prior to the satisfaction of the following “Construction Commencement Date Conditions,” each of which must be and remain satisfied as of the Construction Commencement Date:
(1) The Design-Builder shall have certified that it has completed all Preliminary Services and pre-construction requirements set forth in Appendix 5 (General Design-Build Work Requirements) and shall have provided the Town with an updated Design-Build Period Work Schedule in accordance with Appendix 5 (General Design-Build Work Requirements) and the Health and Safety Plan. (2) The Design-Builder shall have satisfied all requirements of Applicable Law with respect to the commencement of construction and all Governmental Approvals and Non-Governmental Approvals set forth in Appendix 3 (Governmental and NonGovernmental Approvals) and as otherwise required for the commencement of the Construction of the Project (unless waived by the Town) shall have been obtained, and the Design-Builder shall have provided copies of all Design-Builder Managed Governmental Approvals and Design-Builder Managed Non-Governmental Approvals to the Town. All such Governmental and Non-Governmental Approvals shall be in full force and effect.
(3) The Design-Builder shall have provided the Town with certificates for all Required Insurance in accordance with Section 13.1 (Insurance) and certified that all such policies are in full force and effect and in compliance with the requirements of Section 13.1 (Insurance) and Appendix 10 (Insurance Requirements). (4) The Design-Builder shall have complied with the design submittal requirements set forth in Section 6.7(C) (Town Review and Comment on Final Design Documents) to the extent necessary to commence with the Construction of the Project. (5) The Design-Builder shall have held pre-construction conferences with the Town and its representatives in accordance with Appendix 5 (General Design-Build Work Requirements).
(6) The Design-Builder shall have provided the Town with the Performance Bond and the Payment Bond in accordance with Section 5.6(A) (Early Work Packages), Section 5.8(I) (Performance Bond and Payment Bond) and Section 16.1 and certified that such bonds are in full force and effect and in compliance with the requirements of Section 16.1 (Bonds).
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(7) The Town has acquired all easements or rights of way necessary for the Design-Builder to construct the Project.
(8) The Design-Builder shall have received written notice from the Town that the Town has received satisfactory evidence of the binding commitments from the California Department of Housing and Urban Development and the Division of Financial Assistance of the California State Water Resources Control Board regarding the availability of Grant funding.

The foregoing requirements are in addition to any other preconditions to the commencement of Construction established by the Contract Documents.
(B) Establishment of the Construction Commencement Date. In no event shall the Construction Commencement Date be established prior to the satisfaction of the Construction Commencement Date Conditions. The Design-Builder shall provide 10 days’ written notice to the Town as to the satisfaction of the Construction Commencement Date Conditions and the date it proposes to establish as the Construction Commencement Date hereunder. The Town shall issue the Notice to Proceed with Design-Build Period Work on the Construction Commencement Date proposed by the Design-Builder upon satisfaction of the Construction Commencement Date Conditions. In the event the Town determines that the Construction Commencement Date Conditions have not been satisfied, notwithstanding the Design-Builder’s notice pursuant to this subsection, the Town Contract Representative, by written notice to the Design-Builder delivered not later than three days prior to the Construction Commencement Date proposed by the Design-Builder, shall notify the DesignBuilder of the Town’s determination and state which conditions have not been satisfied.

Without limiting any of the foregoing, the Town, in its discretion, may waive (in writing) a Construction Commencement Date Condition or issue a Limited Notice to Proceed as set forth in Section 6.1(A)(2) (Limited Notice to Proceed) above. (C) Effect of the Establishment of the Construction Commencement Date.

Upon the issuance by the Town of the Notice to Proceed establishing the Construction Commencement Date, the Design-Builder shall have the right to proceed with the Construction of the Project. Absent the occurrence of Uncontrollable Circumstances (including a delay by the Town in obtaining Grant funding or obtaining Town Managed Governmental Approvals beyond those time periods or dates set forth in the Design-Builder’s critical path schedule previously approved by the Town as and to the extent provided in this Design-Build Contract, no delay in the establishment of the Construction Commencement Date shall entitle the Design-Builder to any price, schedule or performance relief hereunder.

SECTION 6.3. DIFFERING SITE CONDITIONS.
(A) Preliminary Services Relating to Differing Site Conditions. The DesignBuilder shall review all available information and undertake all soils, groundwater, utility locations, facilities and other site conditions investigations required with respect to the Project Sites as required by the Preliminary Services, and shall furnish the Town with the reports identified in Appendix 2 (Preliminary Services).
(B) Commencing Subsurface Excavations. Prior to commencing any trenching or excavations, the Design-Builder shall, taking into account the information in the Reference Documents and reports developed as part of the Preliminary Services and in compliance with Good Engineering and Construction Practice, conduct further site investigations in accordance with Appendix 5 (General Design-Build Work Requirements), including exploratory excavations and further borings, to confirm the location and type of underground structures that could be damaged as a result of the excavations. Such underground structures include, but are not limited to, all sewer, water, gas, and other piping, 305
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and manholes, chambers, electrical conduits, wires, tunnels and other existing subsurface work located within or adjacent to the Project Sites. The Design-Builder shall carefully sustain in their places and support, or if necessary relocate or causes to be relocated, all underground and surface structures located within or adjacent to the Project Sites and as required by the party owning or controlling such structure. Existing surface facilities which are temporarily removed to facilitate installation of the Design-Build Work shall be replaced and restored to their original condition. The Design-Builder shall notify the Town at least five Business Days in advance of any work that might impact utilities of business or residents in the area surrounding the Project Sites so that the Town can notify such businesses or residents of such work. As set forth in Section 6.1(Q) (Utility Coordination and Relocation), the Design-Builder shall comply with all requirements set forth under Applicable Law, including California Government Code Section 4216 et seq. prior to and during undertaking such excavations or tunneling.
(C) Discovery of Differing Site Conditions. Upon discovering an alleged Differing Site Condition and before the condition is further disturbed, the Design-Builder shall immediately, after taking appropriate measures to secure the affected Design-Build Work:
(1) stop work in and secure the affected area; and (2) notify the Town of the alleged Differing Site Condition. The Design-Builder’s notice to the Town shall be issued by telephone or in person and followed no later than by the end of the next Business Day thereafter by written notice, providing a brief description of why the condition encountered is considered a Differing Site Condition. Promptly upon receipt of the Design-Builder’s notice, the Town will investigate the Project Site conditions. Such notice shall describe the specific ground conditions encountered and the measures taken to deal with the ground conditions. Notwithstanding anything set forth in Section 6.3 (Differing Site Conditions) or in Article 14 (Uncontrollable Circumstances), no Uncontrollable Circumstance relief shall be allowed for any alleged Differing Site Condition unless the Design-Builder provides the Town with notice in accordance with this subsection.
(D) Relief for Differing Site Conditions. If the Design-Builder establishes that the actual conditions encountered during Construction: (1) meet the criteria for a Differing Site Condition, and (2) directly and materially impact the Design-Builder’s cost or time of performance, then the Design-Builder shall be entitled to Uncontrollable Circumstance relief as and to the extent provided in Section 14.4 (Schedule Relief and Related Price Relief).

SECTION 6.4. REGULATED SITE CONDITIONS.
(A) Design-Builder Responsibilities. The parties recognize that in performing the Design-Build Work, the Design-Builder may encounter various Regulated Site Conditions.

In performing the Design-Build Work, the Design-Builder shall exercise due care, in light of all relevant facts and circumstances, to avoid exacerbating any Regulated Site Condition after the location and existence of such Regulated Site Condition has been disclosed to the DesignBuilder or becomes actually known by the Design-Builder through Preliminary Services or physical observation. Notwithstanding anything to the contrary in this Section, the DesignBuilder shall bear full responsibility for the handling, treatment, storage, removal, remediation, avoidance, or other appropriate action (if any), with respect to:
(1) Any Regulated Substance present at, on, in or under, or migrating or emanating to or from the Project Sites, that was generated by or brought or caused to be brought on the Project Sites by any act or omission of the Design-Builder or any Subcontractor; and
(2) The creation of any Regulated Site Condition due to Design-Builder Fault, or the exacerbation of any Regulated Site Condition due to Design-Builder Fault 306
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once the location and existence of such Regulated Site Condition becomes actually known to the Design-Builder.

All remediation costs resulting from Regulated Substances or Regulated Site Conditions for which the Design-Builder bears responsibility pursuant to this subsection (A) shall constitute Unallowable Costs borne solely by the Design-Builder. The Design-Builder shall indemnify, defend and hold harmless the Town Indemnitees in accordance with and to the extent provided in Article 15 (Indemnification) from and against all Loss-and-Expense resulting from Regulated Substances or Regulated Site Conditions for which the Design-Builder bears responsibility pursuant to this subsection (A).
(B) Cultural Resources. The Design-Builder shall not remove or disturb, or cause to be removed or disturbed, any historical, archaeological, architectural, or other cultural artifacts, relics, vestiges, remains, or objects of antiquity. If the Design-Builder discovers any of these items, the Design-Builder shall immediately notify the Town Contract Representative and comply with the Archaeological Construction Monitoring, Mitigation and Preservation Plans and all Applicable Law.
(C) Endangered Species. Should either threatened or endangered plant or animal species (as determined under Applicable Law) be encountered in the performance of the Design-Build Work, the Design-Builder shall cease work immediately in the area of encounter, notify the Town Contract Representative and comply with all Applicable Law. The DesignBuilder shall not resume Design-Build Work in the affected area until authorized to do so by the Town Contract Representative.
(D) Encountering of Regulated Substances. If the Design-Builder encounters any materials or substances at the Project Site that it reasonably believes to be Regulated Substances, it shall immediately notify the Town and comply with the Contaminated Media Management Plan and all Applicable Law.
(E) Uncontrollable Circumstance Relief. Without limiting the DesignBuilder’s obligations under subsection (D) of this Section, if the Design-Builder establishes that the actual conditions encountered during Construction:
(1) Meet the criteria for Regulated Site Conditions;
(2) Directly and materially impact the Design-Builder’s cost or time of performance; and
(3) Were not known or could not have been reasonably discovered through the Design-Builder’s performance of the Preliminary Services, review of Reference Documents or reasonable diligence;
then the Design-Builder shall be entitled to Uncontrollable Circumstance relief as and to the extent provided in Article 14 (Uncontrollable Circumstances). The Design-Builder acknowledges that the Reference Documents and Preliminary Services have identified the presence of Regulated Substances on the Project Sites and the Base Guaranteed Maximum Price is intended to include all costs associated with such identified Regulated Substances. (F) Generator Liability. Nothing contained herein is intended to identify the Design-Builder as the generator of any pre-existing Regulated Substance, except as provided by Applicable Law. Except with respect to those Regulated Substances identified in subsection (A) of this Section as to which the Design-Builder bears responsibility, the Town shall execute, as generator, Hazardous Waste manifests required in order for the Design-Builder to fulfill its obligations under this Section, as and to the extent required under Applicable Law. 307
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SECTION 6.5. PERMITTING RESPONSIBILITIES AND SCHEDULE.
(A) Design-Builder Governmental and Non-Governmental Approval Responsibility Generally. The Design-Builder shall obtain and maintain all Design-Builder Managed Governmental Approvals and all Design-Builder Managed Non-Governmental Approvals necessary to commence, continue and complete the Design-Build Work and achieve Substantial Completion. In connection therewith, the Design-Builder shall:
(1) Prepare and complete all required filings, applications and reports; (2) Develop and furnish all necessary data, information, plans, documentation and supporting material;
(3) Familiarize itself with all applicable terms and conditions; (4) Attend all required meetings and hearings;
(5) Pay all required permit and filing fees; and
(6) Take all other action necessary in obtaining, maintaining, renewing, extending and complying with the terms of all Design-Builder Governmental and NonGovernmental Approvals.

The Design-Builder shall be responsible for identifying, obtaining and maintaining any Governmental and Non-Governmental Approvals required for the performance of the DesignBuild Work that are not the Town Managed Governmental Approvals. (B) Application Process. The Town shall be notified by the Design-Builder prior to any application, data submittal, or other communication by the Design-Builder with any Governmental Body regarding Governmental Approvals. The Design-Builder shall not knowingly take any action in any application, data submittal or other communication with any entity regarding Governmental or Non-Governmental Approvals or the terms and conditions thereof that would impose any unreasonable cost or unreasonable burden on the Town or that would materially contravene any Town policies with respect to the matters contained therein.

The Town reserves the right, after reasonable notification and consultation with the DesignBuilder, to modify, alter, amend, delete or supplement any information supplied, or term or condition proposed, by the Design-Builder which would have the effect described in the preceding sentence. The final terms and conditions of any Governmental Approval and NonGovernmental Approval shall be subject to the Town’s approval, which approval shall not be unreasonably withheld or delayed. The Design-Builder shall deliver to the Town, promptly after the Design-Builder’s receipt, a copy of each Governmental Approval and NonGovernmental Approval, and shall provide a listing of the status of all Governmental Approvals and Non-Governmental Approval in its Monthly Progress Report. (C) Town Managed Governmental Approval Responsibility. The Town shall:
(1) Be responsible for obtaining the Town Managed Governmental Approvals, subject to the Design-Builder’s obligations under subsection (D) of this Section; (2) Cooperate with and, upon the reasonable request of the Design-Builder, provide reasonable assistance to the Design-Builder in obtaining from Governmental Bodies the Design-Builder Governmental Approvals (including any modifications, renewals and extensions of existing Design-Builder Governmental Approvals from Governmental Bodies) required to be obtained by the Design-Builder under this Section; 308
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(3) Where necessary to obtain, renew, replace, extend the validity of, or arrange necessary amendments to any Governmental Approval and within a reasonable period of time after being requested to do so by the Design-Builder:
(a) Execute Governmental Approval application and related documents, either in its own name or jointly with the Design-Builder, as and to the extent required under Applicable Law or the administrative practices of the applicable Governmental Body;
(b) Provide for attendance by appropriate Town staff at public hearings and meetings of applicable Governmental Bodies; and (c) Provide the Design-Builder with existing relevant data and documents that are within the Town’s custody or control or are reasonably obtainable by the Town and which are reasonably required for such purpose.

To the extent Applicable Law or the administrative practice of the applicable Governmental Body requires that Governmental Approvals that are required to be obtained by the DesignBuilder pursuant to this Section be applied for or issued in the Town’s name or that the Town directly coordinates with such Governmental Bodies, the Design-Builder shall, at its own cost and expense, provide all necessary support and efforts to apply for and obtain such Governmental Approvals, including preparing all application and related documents for execution by the Town. The Town’s obligation to assist and cooperate pursuant to this Section shall be subject to the Design-Builder’s obligations under this Section and shall not require the Town to:
(1) Staff the Design-Builder’s permitting or development efforts, to undertake any new studies or investigations with respect to the Project, or to affirmatively seek to obtain the issuance of the Governmental Approvals required to be obtained by the Design-Builder hereunder;
(2) Take a position which it believes to be inconsistent with the Contract Documents, the Contract Standards, or the Town policy (except policies that are incompatible with the contracting methodology associated with this Design-Build Contract or are inconsistent with the express obligations of the Town hereunder); (3) Take a position that is not usual and customary for the Town to take in addressing similar circumstances affecting its own projects (except for usual and customary arrangements that are incompatible with the contracting methodology associated with this Design-Build Contract or are inconsistent with the express obligations of the Town hereunder); and
(4) Refrain from concurring with a position taken by Governmental Body if the Town believes that position to be correct.
(D) Design-Builder Responsibility For the Town Managed Governmental Approvals and Town Managed Non-Governmental Approvals. In connection with the Town Managed Governmental Approvals and the Town Managed Non-Governmental Approvals, the Design-Builder shall cooperate with and assist the Town in carrying out any of the Town’s responsibilities hereunder with respect to the Town Managed Governmental Approvals and the Town Managed Non- Governmental Approvals, including:
(1) Preparing and completing all required filings, applications and reports; 309
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(2) Developing and furnishing all necessary data, information, plans, documentation and supporting material;
(3) Familiarizing itself with all applicable terms and conditions; (4) Attending all required meetings and hearings; and
(5) Take all other action reasonably necessary in accordance with Good Engineering and Construction Practice to assist the Town in obtaining, complying with, maintaining, renewing, and extending all of the Town Managed Governmental Approvals and the Town Managed Non-Governmental Approvals.
(E) No Relief for Delays or Conditions in Design-Builder Managed Governmental Approvals or Design-Builder Managed Non-Governmental Approvals. The parties acknowledge that the Town is taking responsibility for the Town Managed Governmental Approvals and the Town Managed Non-Governmental Approvals and as such, is taking responsibility for obtaining most, if not all, environmental permits for the Project and that the Design-Builder is taking responsibility for the Design-Builder Managed Governmental Approvals and the Design-Builder Managed Non-Governmental Approvals and as such, is taking responsibility for obtaining routine construction permits. Therefore, the Design-Builder will not be afforded schedule or price relief in the event of any delay in the issuance of a Design-Builder Managed Governmental Approval or a Design-Builder Managed NonGovernmental Approval or such Design-Builder Managed Governmental Approval or DesignBuilder Managed Non-Governmental Approval imposes unanticipated terms and conditions. (F) Adjustment to Scheduled Substantial Completion Date Based on Delays in Obtaining Town Managed Governmental Approvals or Town Managed Non-Governmental Approvals. In the event any delay in the issuance of a Town Managed Governmental Approval or a Town Managed Non-Governmental Approval materially delays the achievement of Substantial Completion, an Uncontrollable Circumstance shall be deemed to have occurred and the Design-Builder shall be entitled to an adjustment to the Scheduled Substantial Completion Date as and to the extent provided, and upon compliance with the procedures set forth in Article 14 (Uncontrollable Circumstances), except to the extent the Design-Builder fails to comply with its obligations with respect thereto under this Section, under the Governmental and Non-Governmental Approvals Table, or under Section 17.9 (General Duty to Mitigate).

Schedule relief shall be granted under this subsection only if the delay in issuance of a Town Managed Governmental Approval or a Town Managed Non-Governmental Approval materially affects the Design-Build Schedule’s critical path. In the event any such delay constitutes an Uncontrollable Circumstance, the Design-Builder shall be entitled to a Base Guaranteed Maximum Price Adjustment as and to the extent set forth in Article 14 (Uncontrollable Circumstances).
(G) Relief Based on Certain Permitting Terms and Conditions. In the event that a Governmental Body imposes terms and conditions in connection with a Town Managed Governmental Approval following the execution of the GMP Amendment that require material changes to the Technical Specifications or the Substantial Completion Standards, an Uncontrollable Circumstance shall be deemed to have occurred and the Design-Builder shall be entitled to a Base Guaranteed Maximum Price Adjustment as and to the extent provided in Article 14 (Uncontrollable Circumstances).
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SECTION 6.6. INTERFACE AND COORDINATION WITH OTHER ENTITIES.

As set forth in Section 6.5(C) (Town Managed Governmental Approval Responsibility), the Town is responsible for obtaining the Town Managed Governmental Approvals and the Town Managed Non-Governmental Approvals and may require assistance and cooperation from the Design-Builder in connection with the Town’s efforts in obtaining, complying with, maintaining, renewing, and extending all of such approvals from the following entities:
(A) City of Chico. The parties acknowledge that the Town has entered into the Inter-Municipal Agreement with the City of Chico that defines the procedures and terms and conditions for the Town’s use of the Chico Sanitary Sewer System at the connection to the Chico WPCP. The Design-Builder shall cooperate with and assist the Town in carrying out any of the Town’s responsibilities under the Inter-Municipal Agreement. The Design-Builder shall perform the Contract Services in a manner that does not violate the Inter-Municipal Agreement. If in the performance of the Contract Services hereunder it becomes necessary for the Design-Builder to coordinate any of its activities with the City of Chico, the Design-Builder shall only interface with the City of Chico with the prior approval and participation of the Town.
(B) Butte County. The parties acknowledge that Construction of the Project requires coordinate with Butte County. If in the performance of the Contract Services hereunder it becomes necessary for the Design-Builder to coordinate any of its activities with Butte County, the Design-Builder shall only interface with Butte County with the prior approval and participation of the Town.
(C) UPRR. The parties acknowledge that Construction of the Project requires a Non-Governmental Approval from UPRR for the UPRR crossing. If in the performance of the Contract Services hereunder it becomes necessary for the Design-Builder to coordinate any of its activities with UPRR, the Design-Builder shall only interface with UPRR with the prior approval and participation of the Town.
(D) Caltrans. The parties acknowledge that Construction of the Project requires a Non-Governmental Approval from Caltrans for the Highway 99 crossing. If in the performance of the Contract Services hereunder it becomes necessary for the Design-Builder to coordinate any of its activities with Caltrans, the Design-Builder shall only interface with Caltrans with the prior approval and participation of the Town.

SECTION 6.7. FINAL DESIGN RESPONSIBILITIES AND RISK ASSUMPTION. (A) Performance of the Design Work. Following the issuance of the Notice to Proceed with Design-Build Period Work, the Design-Builder agrees to undertake, perform, and complete the designs and plans for the Project in accordance with the Contract Standards and to prepare all Final Design Documents necessary or appropriate to carry out and complete the Design-Build Period Work. All Design-Builder working design documents and Final Design Documents shall comply with the Baseline Design Documents and shall provide that the Project is constructed to a standard of quality, integrity, durability and reliability which is equal to or better than the standard established by the Baseline Design Documents. The Design-Builder shall be responsible for the professional quality, technical accuracy, timely completion and coordination of all Final Design Documents and shall, without additional compensation, correct or revise any errors, omissions or other deficiencies in the Baseline Design Documents or the Final Design Documents.
(B) Sole Responsibility and Liability. The Design-Builder shall have the sole and exclusive responsibility and liability for the design, construction, and performance 311
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capability of the Project hereunder in accordance with the Contract Standards, (1) notwithstanding the fact that the RFQ included certain design criteria, requirements and performance standards for the Design-Build Work, and (2) the Town’s role in defining the nature and extent of the Preliminary Services, reviewing and commenting on the Preliminary Services Deliverable Material, and negotiating and agreeing upon the GMP Amendment. The Design-Builder acknowledges that, in the RFQ process, the performance of the Preliminary Services, the delivery of the GMP Submittal and the negotiation of the GMP Amendment, the Design-Builder had the unrestricted right and opportunity not to submit its Statement of Qualifications and not to execute this Design-Build Contract or the GMP Amendment if the Design-Builder had determined that such design criteria and requirements or the establishment of the Contract Standards would in any manner or to any degree impair the Design-Builder’s ability to perform the Design-Build Work in compliance herewith. Without limiting the Design-Builder’s right to claim relief in the event of Uncontrollable Circumstances as and to the extent provided in this Design-Build Contract, all risks relating to the design, construction and performance capability of the Project, including all risks of design defects, constructability and efficacy, have been transferred to the Design-Builder under this DesignBuild Contract. (C) Town Review and Comment on Final Design Documents. The Town shall have the right to review and comment on all Final Design Documents within the time frames specified in Appendix 7 (Design-Build Work Review Procedures) in order to confirm the compliance and consistency of the Final Design Documents with the Contract Documents. In no event shall the Design-Builder proceed with the Construction of any particular segment of the Design-Build Work without first complying with the requirements of Appendix 7 (DesignBuild Work Review Procedures). The Design-Builder shall give due consideration and provide written responses, in the time and manner provided in Appendix 7 (Design-Build Work Review Procedures), to any comments delivered by the Town or its representatives as to the DesignBuilder’s design submittals. Neither compliance by the Design-Builder with the Baseline Design Documents, nor review and comment by the Town or the Owner Representative on the Design-Builder’s Preliminary Design Documents or Final Design Documents, nor any failure by the Town or the Owner Representative to comment on any design submittals shall in any way relieve the Design-Builder of full responsibility for the design, construction and performance capability of the Project, as demonstrated through the Substantial Completion Test, in accordance with the Contract Standards. The parties acknowledge and agree that the review and comment rights of the Town under this subsection (C) are intended for the informational purposes of the Town and for the Town to determine whether the Final Design Documents comply with the Baseline Design Documents.
(D) Documents at the Project Site. The Design-Builder shall maintain at the Project Site all Final Design Documents, including a complete set of record drawings, in accordance with the Contract Standards. These documents shall be available to the Town for reference, copying and use, and a complete set thereof shall be delivered to the Town upon completion of the Design-Build Work.

SECTION 6.8. CHANGES TO THE BASELINE DESIGN DOCUMENTS AT DESIGN-BUILDER REQUEST.
(A) Town Consent Required. The Design-Builder acknowledges the Town’s material interest in each provision of the Baseline Design Documents, and agrees that, subject to Section 6.9 (Other Changes to the Baseline Design Documents), no material change to the Baseline Design Documents shall be made except with the consent of the Town, which may be withheld or conditioned in its discretion. Any such changes shall be evidenced by a Contract Amendment or Change Order, as applicable.
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(B) Notice and Information as to Proposed Change. Without limiting anything under subsection (A) of this Section, the Design-Builder shall give the Town written notice of, and reasonable opportunity to review and approve, any Baseline Design Requirements Change proposed to be made at the Design-Builder’s request. The notice shall contain sufficient information for the Town to determine that the proposed Baseline Design Requirements Change:
(1) Does not diminish the capacity of the Project to be operated so as to meet the Contract Standards;
(2) Does not impair the quality, integrity, durability and reliability of the Project;
(3) Is reasonably necessary or is advantageous for the Design-Builder to fulfill its obligations under this Design-Build Contract; and (4) Is feasible.

SECTION 6.9. OTHER CHANGES TO THE BASELINE DESIGN
DOCUMENTS.
(A) Changes Made Due to Uncontrollable Circumstances. Upon the occurrence of an Uncontrollable Circumstance after the GMP Amendment Date, the DesignBuilder shall promptly proceed, subject to the terms, conditions and procedures set forth in Article 14 (Uncontrollable Circumstances) and subject to the Town’s approval, to make or cause to be made all Baseline Design Requirements Changes reasonably necessary to address the Uncontrollable Circumstance. The Design-Builder shall consult with the Town concerning possible means of addressing and mitigating the effect of any Uncontrollable Circumstance.

The parties shall use all reasonable efforts to address Baseline Design Requirements Changes required due to Uncontrollable Circumstances in a manner that will not impact the critical path of planned Design-Build Work in the Design-Build Period Work Schedule. The DesignBuilder shall be entitled to schedule and price relief resulting from any such Baseline Design Requirements Change to the extent provided in Article 14 (Uncontrollable Circumstances).

Without limiting the right of the Town to issue a Work Change Directive under Section 6.11 (Work Change Directives), any Baseline Design Requirements Change made on account of Uncontrollable Circumstances, and any related change in the terms and conditions of the Contract Documents, shall be reflected in a Change Order. (B) Changes Required by Governmental Bodies. The parties recognize that a Governmental Body may impose terms and conditions in connection with a Governmental Approval after the issuance of the Notice to Proceed with Design-Build Period Work that require a Baseline Design Requirements Change. In the event of the imposition of any such additional terms and conditions imposed by a Governmental Body, the Design-Builder shall promptly proceed, subject to the Town’s approval, to make or cause to be made all Baseline Design Requirements Changes reasonably necessary to comply with such additional terms and conditions, or the Town may elect to contest any such additional terms and conditions if such terms and conditions are not acceptable to the Town; provided that, if such contest by the Town delays the performance of the Design-Build Work, the Design-Builder shall be entitled to Uncontrollable Circumstance relief as and to the extent provided in Article 14 (Uncontrollable Circumstances). As set forth in Section 6.5(G) (Relief Based on Certain Permitting Terms and Conditions), the Town shall bear the risk of the imposition of any such additional terms and conditions imposed by a Governmental Body in connection with a Governmental Approval.

Without limiting the right of the Town to issue a Work Change Directive under Section 6.11 (Work Change Directives), any such Baseline Design Requirements Change and any related 313
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change in the terms and conditions of this Design-Build Contract shall be reflected in a Change Order.
(C) Changes Required by the Town. The Town shall have the right to require the Design-Builder to make Baseline Design Requirements Changes at any time prior to Final Completion in its discretion for any reason whatsoever, whether and however the exercise of such rights affects this Design-Build Contract so long as the Design-Builder’s rights are protected as provided in this subsection (C). The Design-Builder shall be entitled to a Change Order providing appropriate price, schedule, performance and other relief in the event of a Baseline Design Requirements Change made at the direction of the Town under this subsection (C); provided, however, that the Design-Builder shall not be entitled to any such price, schedule, performance or other relief to the extent that any such Baseline Design Requirements Change is required due to Design-Builder Fault. The Town shall have no obligation to make any Baseline Design Requirements Change on account of its rights under this subsection (C).

SECTION 6.10. CHANGE PROCEDURES.
(A) Generally. The sole means of providing for an adjustment to the Scheduled Substantial Completion Date, the Contract Compensation or a Base Guaranteed Maximum Price Adjustment, or any other price, performance or schedule relief under this Design-Build Contract shall be through the issuance of a Change Order or Work Change Directive. All work authorized or modified pursuant to a Change Order shall constitute DesignBuild Work hereunder and shall be completed in accordance with the Contract Standards.

Each Change Order, except as otherwise expressly agreed to in such Change Order, shall be specific and final as to prices and extensions of time with no reservations or other provisions allowing for future additional money or time as a result of the particular changes identified and fully compensated in the Change Order, except as provided in subsection (C) of this Section with respect to actual costs subject to Cost Substantiation. Price determinations associated with Change Orders and Work Change Directives shall be made in accordance with Section 9.7 (Changes in Design-Build Price). The Design-Builder is not authorized to proceed with any contemplated change in the Design-Build Work prior to the Design-Builder’s receipt of a Change Order or Work Change Directive.
(B) Design-Builder Change Order Proposal. The Town Contract Representative may, in anticipation of possibly issuing a Change Order, request the DesignBuilder to prepare a proposal of cost and time to perform the contemplated changes in the Design-Build Work, along with any other proposed changes to this Design-Build Contract. The Design-Builder’s written proposal shall be prepared in accordance with the Contract Standards on a proposal request form approved by the Town Contract Representative and shall be transmitted to the Town Contract Representative promptly, but not later than seven days (unless the Town Contract Representative agrees to a longer duration, in writing) after the Design-Builder’s receipt of the Town Contract Representative’s written request, and shall remain a firm offer for a period not less than 15 Business Days after receipt thereof by the Town Contract Representative, unless the parties agree to a longer duration, in writing. (C) Negotiation of Proposed Change Order. The Design-Builder shall consult with the Town and the Owner Representative concerning possible means of addressing any proposed Change Order, and the Design-Builder and the Town shall cooperate in order to minimize any delay and lessen any additional cost associated with the Change Order. The Town may negotiate the written proposal delivered pursuant to subsection (B) of this Section.

If the Town accepts such written proposal without adjustment to its terms, the Town may issue a Change Order for the written proposal within the firm-offer period specified in subsection (B) of this Section, and the parties’ signing of the written proposal shall be deemed equivalent to signing the Change Order. Change Orders may provide for a Base Guaranteed Maximum Price 314
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Adjustment based on (1) unit prices included in the GMP Amendment or otherwise agreed to by the parties; (2) negotiated lump sum pricing; (3) actual costs subject to Cost Substantiation in accordance with Section 9.8 (Interest on Overdue Obligations); or (4) a combination of the foregoing. A Change Order that reduces the scope of the Design-Build Work shall provide for a Base Guaranteed Maximum Price Adjustment reducing the Guaranteed Maximum Price, as determined in the same manner as provided for any increase to the Guaranteed Maximum Price. Except as otherwise directed by the Town pursuant to Section 6.14 (Suspension of Work), the Design-Builder shall, pending the negotiation of any Change Order, diligently proceed with the performance of all Design-Build Work not subject to such proposed Change Order.
(D) Effect of Design-Builder’s Signature. The signing of a Change Order by the Design-Builder indicates the Design-Builder’s acceptance and approval thereof, including any adjustment to the Scheduled Substantial Completion Date or the Contract Compensation or other price, performance or schedule relief or change provided for therein. The signing of any Change Order by the Design-Builder shall constitute an acknowledgement and agreement, except as otherwise expressly agreed to in such Change Order, that:
(1) Any compensation paid in conjunction with the terms of a Change Order shall comprise the total compensation due the Design-Builder for the work or the change defined in the Change Order;
(2) The stipulated compensation includes all payment for the Design-Build Work authorized by the Change Order, including all payment for the interruption of schedules, stop work orders, extended overhead, delay, or any other impact, claim or ripple effect;
(3) The Change Order constitutes full accord and satisfaction for the change in the Design-Build Work;
(4) The Design-Builder reserves no right to pursue any subsequent claim concerning the Change Order; and
(5) All necessary amendments to this Design-Build Contract, including all necessary Baseline Design Requirements Changes, are reflected in the Change Order and no subsequent claim or amendment to the Contract Documents will arise out of or as a result of the Change Order.

SECTION 6.11. WORK CHANGE DIRECTIVES.
(A) Town Right to Issue. The parties intend to negotiate the terms of any Change Order providing for a Baseline Design Requirements Change prior to the DesignBuilder incurring any costs with respect to any such change or adjustment. However, notwithstanding the foregoing, the Town shall have the right to issue a written order directing a Baseline Design Requirements Change or other change to the Design-Build Work pursuant to this subsection (A), which order shall specify any appropriate price, performance or schedule relief, if any, associated with any such change (a “Work Change Directive”). No Work Change Directive shall be made that would be contrary to Applicable Law. Upon receipt of a Work Change Directive, the Design-Builder shall promptly proceed with the performance of any change in the Design-Build Work as instructed and shall promptly advise the Town in writing of the Design-Builder’s agreement (or disagreement) with any price, performance or schedule relief, if any, as may be proposed by the Town in the Work Change Directive. If the DesignBuilder receives a written communication signed on behalf of the Town, which the DesignBuilder believes is a Work Change Directive that is not so identified, it shall not proceed with the purported change in the Design-Build Work until it receives written confirmation from the 315
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Town that such communication is in fact a Work Change Directive. A Work Change Directive that is signed by the Design-Builder and approved by the Town in accordance with its procurement rules and regulations, reflecting the scope of work and any price, schedule and performance relief, if any, shall be deemed a Change Order. (B) Disagreement with Terms of a Work Change Directive. If the DesignBuilder disagrees in writing with the suggested price, schedule or performance relief, if any, set out in the Work Change Directive, the Design-Builder may elect to initiate dispute resolution procedures in accordance with Section 11.1 (Dispute Resolution). In such case, the DesignBuilder shall proceed with the performance of the Design-Build Work in accordance with the Work Change Directive and shall keep and present, in such form as the Town may request, an itemized accounting to go with the appropriate supporting data with respect to the DesignBuilder’s position, including all information necessary to substantiate any cost claimed by the Design-Builder. The Design-Builder shall provide notice of any disagreement pursuant to this subsection (B) within 15 days after receipt of the Work Change Directive. The failure of the Design-Builder to provide notice of any such disagreement in accordance with this subsection (B) shall constitute a waiver of any further right to dispute the terms and conditions of a Work Change Directive.

SECTION 6.12. DESIGN-BUILD PERIOD WORK DELIVERABLE MATERIAL.

As the Design-Build Work progresses (or upon the termination of the DesignBuilder’s right to perform the Design-Build Work), the Design-Builder shall deliver to the Town all Design-Build Period Work Deliverable Material. The provisions of Section 17.7 (Property Rights) shall apply to any Design-Build Period Work Deliverable Material used by the DesignBuilder in the Design-Build Work that is proprietary in nature or otherwise subject to the property rights of a third party. The Town shall have the right from and after the Contract Date to use (or permit use of) all such Design-Build Period Work Deliverable Material, all oral information received by the Town in connection with the Design-Build Work, and all ideas or methods represented by such Design-Build Period Work Deliverable Material, without additional compensation; provided, however, that the Town shall not publish, distribute, or sell such Design-Build Period Work Deliverable Material to third parties not employed by or under contract to the Town, except as required by Applicable Law with respect to public records requests or in connection with requests for proposals to perform construction work or design, or consulting services on behalf of the Town and in connection with the performance of such work. The Town’s use of any such Design-Build Period Work Deliverable Material for any purpose other than the Project shall be at its own risk and the Design-Builder shall have no liability therefor.

SECTION 6.13. INTERFACE AND COORDINATION WITH TOWN, UTILITIES AND OTHER CONTRACTORS.
(A) Maintenance of Operations During Construction. The Design-Builder shall undertake and execute the Design-Build Work in a manner which does not interfere with or impair the ongoing operations of the Town utility systems or private utilities. The DesignBuilder shall comply with the requirements of the Utility Relocation Plan developed as part of the Preliminary Services and shall arrange and/or provide for all necessary bypasses and other measures necessary to maintain utility services. The Design-Builder shall coordinate all Design-Build Work with the Town in accordance with the Contract Standards, including the approved Utility Relocation Plan.
(B) Related Projects Generally. The Design-Builder acknowledges that the Town may be undertaking other projects at the Project Sites and, without limiting any other obligation under this Design-Build Contract, agrees to coordinate through communications with the Town the Design-Build Work with the work associated with such other projects in 316
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accordance with the Contract Standards. Any other project being undertaken at or in the vicinity of the Project Sites, are referred to herein as the “Related Projects”. Nothing in this Design-Build Contract shall be interpreted as granting the Design-Builder exclusive occupancy of the Project Sites. The Design-Builder must ascertain to its own satisfaction the scope of the Project and the nature of any other contracts that have been or may be awarded by the Town in relation to its overall capital improvement program or other Related Project, of which the Design-Builder becomes aware. The Design-Builder shall cause the Design-Build Work to be performed without damaging the work or property of any Separate Contractor and so as not to cause any unnecessary hindrance or delay to any Separate Contractors working at the Project Sites. The Design-Builder agrees to reasonably cooperate and coordinate its activities with the Town so that the Project and any Related Project can be completed in an orderly and coordinated manner without unreasonable disruption. The Design-Builder agrees that it shall not be entitled to any price, performance or other Uncontrollable Circumstance relief hereunder due to any delay or hindrance to the extent caused by a failure of any DesignBuilder Person to cooperate or coordinate with the Town with respect to the work of any Separate Contractor.
(C) Interrelated Work. If part of the Design-Build Work depends on proper execution of construction or operations by the Town or a Separate Contractor, the DesignBuilder shall, prior to proceeding with that portion of the Design-Build Work, inspect the other work and promptly report to the Town Contract Representative any apparent discrepancies or defects in the other construction that would render it unsuitable for the proper execution of the Design-Build Work. The Design-Builder shall be entitled to Uncontrollable Circumstance relief as and to the extent provided in Article 14 (Uncontrollable Circumstances) in the event that defects in the work of the Town or any Separate Contractor render the work unsuitable for the proper execution or result of any part of the Design-Build Work. However, failure of the Design-Builder to report apparent discrepancies or defects in the other construction shall constitute acknowledgment that the Town’s or the Separate Contractor’s completed or partially completed construction is fit and proper to receive the Design-Build Work, except as to discrepancies or defects not then reasonably discoverable pursuant to Good Engineering and Construction Practice.
(D) Disputes Associated with Separate Work. If the performance of any work by the Town or a Separate Contractor under contract with the Town is likely to be interfered with by the simultaneous performance of some other contract or contracts, the Town shall decide which contractor shall cease work temporarily and which contractor shall continue or whether the work under the contracts can be coordinated so that the contractors may proceed simultaneously. Any decision by the Town to halt or delay the performance of the Design-Build Work by the Design-Builder pursuant to this Section shall be made in accordance with Section

6.14 (Suspension of Work), and the Design-Builder shall be entitled to Uncontrollable Circumstance relief as and to the extent provided therein.

SECTION 6.14. SUSPENSION OF WORK.

The Town may, through a written notice executed by the Town Contract Representative, order the Design-Builder to suspend, delay or interrupt all or any part of the Design-Build Work for such period of time as the Town Contract Representative may determine to be appropriate for the coordination of the Related Projects or otherwise for the convenience of the Town. The Design-Builder shall have no entitlement to relief hereunder or any adjustment to the Scheduled Substantial Completion Date or the Contract Compensation under circumstances of the Town ordering the Design-Builder to suspend, delay or interrupt all or any part of the Design-Build Work due to Design-Builder Fault, including any failure of compliance by any Design-Builder Person with the Design-Builder’s obligations under this Design-Build Contract in respect of the maintenance of operations during Construction, coordination in respect of Related Projects, maintenance of Required Insurance or any health 317
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and safety requirement. However, if the Town exercises its right to suspend, delay or interrupt all or any part of the Design-Build Work pursuant to this Section under circumstances other than Design-Builder Fault, an Uncontrollable Circumstance shall be deemed to have occurred, subject to the terms and conditions of Article 14 (Uncontrollable Circumstances).

SECTION 6.15. CONSTRUCTION PRACTICE.
(A) Exclusive Responsibility of Design-Builder. The Design-Builder shall have exclusive responsibility for all construction means, methods, techniques, sequences, and procedures necessary or desirable for the correct, prompt, and orderly prosecution and completion of the Design-Build Work as required by the Contract Documents. The responsibility to provide the construction means, methods, techniques, sequences and procedures referred to above shall include the obligation of the Design-Builder to provide the following construction requirements: supervision, tools, implements, machinery, labor, materials and accessories necessary and proper for the purpose; installation, periodic inspection, and removal of temporary site lighting, including specific task lighting and emergency lighting; temporary offices and construction trailers; installation, daily inspection, and removal of miscellaneous temporary barricades, fencing, partitions, and other means of temporary separation/isolation on the site during construction, including any temporary covered wooden walkways for sidewalks; required design certifications; required approvals; weather protection; dust control; noise abatement, barriers, etc.; miscellaneous de-watering requirements; clean-up and housekeeping of the Project Sites; construction trade management; temporary parking; vehicle traffic; health, safety and first aid facilities and equipment; correction of defective work or equipment; Subcontractors’ insurance; storage areas; workshops and warehouses; temporary fire protection; security of the Project Sites; temporary Utilities; Utility relocations necessary or convenient to its performance of the Design-Build Work; potable water; sanitary services; Subcontractor and vendor qualification; receipt and unloading of delivered materials and equipment; erection rigging; temporary supports; and construction coordination. The use of explosives in connection with the performance of the Design-Build Work is permitted solely to the extent permissible under Applicable Law and with the prior written approval of the Town, acting reasonably. (B) Project Sites Debris, Trash and Waste. The Design-Builder shall keep the Project Sites reasonably free from debris, trash and construction wastes to permit the Design-Builder to perform its construction services efficiently, safely and without interfering with the use of adjacent land areas and without causing complaints from Separate Contractors, adjacent property owners, local public officials or members of the public. The Design-Builder shall be responsible for the maintenance of grass, shrubbery and trees located on the Project Sites, including any right of way. Prior to Final Completion, the Design-Builder shall remove all debris, trash, construction wastes, materials, equipment, machinery and tools arising from the Design-Build Work or applicable portions thereof (and not otherwise incorporated into the Project in accordance with the Contract Documents).

SECTION 6.16. RESPONSIBILITY FOR SAFETY AND SECURITY.
(A) Safety Manager. The Design-Builder assumes responsibility for implementing and monitoring all health and safety precautions and programs related to the performance of the Design-Build Work. The Design-Builder shall, prior to commencing construction, designate an individual with the qualifications and experience necessary under Good Engineering and Construction Practice to supervise the implementation and monitoring of all health and safety precautions and programs related to the Design-Build Work (the “Safety Manager”). The Safety Manager shall be an individual stationed at the Project Sites. 318
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(B) Precautions and Protection; Project Sites Security. The Design-Builder shall take all reasonable precautions for the health and safety of, and shall provide all reasonable protection to prevent damage, injury or loss to:
(1) All employees on the Project Sites and all other persons who may be affected thereby;
(2) All the Design-Build Work, whether in storage on or off the Project Sites, under the care, custody or control of Design-Builder or any of its Subcontractors.

Machinery and equipment shall have proper guards in place and all hazards shall be eliminated in accordance with the latest health and safety provisions of the OSHA Construction Industry Regulations 29 CFR, Parts 1910 and 1926; and (3) Other property at the Project Sites or adjacent thereto, including plant facilities, trees, shrubs, lawns, walks, pavements, roadways, structures and Utilities not designated for removal, relocation or replacement in the course of construction.

The Design-Builder shall develop and administer a security program for the Project Sites in coordination with the Town. The Design-Builder shall cooperate with the Town in connection with the Town’s program for the badging of all personnel and vehicles that require authorization for entry to the Project Sites.
(C) Health and Safety Inspections and Meetings. The Design-Builder is solely responsible to inspect, survey, and assess the Project Sites and identify the existence of all permit-required confined spaces and non-permit confined spaces and comply with applicable OSHA regulations and standards. The Design-Builder’s Project Sites assessment shall begin upon the initiation of Design-Build Work and continue throughout the duration of the Design-Build Period. The Design-Builder shall comply with all health and safety requirements imposed by Applicable Law, including 29 CFR 1910.146, in the performance of the Design-Build Work. The Safety Manager shall make routine daily inspections of the Project Sites and shall hold weekly health and safety meetings with the Design-Builder’s personnel, Subcontractors and others as applicable. The Design-Builder shall provide minutes of each health and safety meeting to the Town within five days of such meeting. (D) Health and Safety Compliance Requirements. The Design-Builder shall, and shall cause all Subcontractors to, shall comply with:
(1) All Applicable Law relating to safety;
(2) The Health and Safety Plan; and
(3) Any the Town-specific health and safety requirements provided to the Design-Builder.

The Design-Builder shall immediately report (no later than within 12 hours after its occurrence), in writing, any health and safety-related injury, loss, damage, accident or near miss arising from the Design-Build Work to the Town and, to the extent mandated by Applicable Law, to all Governmental Bodies having jurisdiction over health and safety-related matters involving the Project. Where any dangerous condition or nuisance exists in and around the Project Sites, including equipment and supply storage areas or other areas in any way connected with the performance of the Contract Obligations, the Design-Builder shall provide and maintain reasonable warning of such danger or nuisance. The Design-Builder shall not create excavation, obstructions, or any dangerous condition or nuisance of any nature whatsoever in connection with the performance of this Design-Build Contract unless necessary to its performance, and in that event the Design-Builder shall provide and maintain 319
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at all times reasonable means of warning of any danger or nuisance created. The duties of the Design-Builder in this Section shall be non-delegable, and the Design-Builder’s compliance with any specific recommendations or requirements of the Town as to the means of warning shall not excuse the Design-Builder from the faithful performance of these duties should such recommendations or requirements not be adequate or reasonable under the circumstances.

The Town, through the Town Contract Representative, shall have the right to suspend any or all Design-Build Work if the Design-Builder fails to comply with its obligations hereunder without any requirements of providing the Design-Builder with Uncontrollable Circumstance relief hereunder.
(E) Emergencies. The Design-Builder shall develop an emergency response plan in accordance with the requirements set forth in Appendix 5 (General Design-Build Work Requirements). The emergency response plan shall be subject to the approval of the Town and shall establish the protocols for the Design-Builder in dealing with emergencies impacting the performance of the Design-Build Work. In case of an emergency which threatens immediate loss or damage to property or health and safety of life, the Design-Builder shall act immediately to prevent threatened loss, damage, injury or death. The Design-Builder shall notify the Town of the situation and all actions taken immediately thereafter. If, in the opinion of the DesignBuilder, immediate action is not required, the Design-Builder shall notify the Town of the emergency situation and proceed in accordance with the Town’s instructions. However, if any loss, damage, injury or death occurs that could have been prevented by the Design-Builder’s prompt and immediate action, Design-Builder shall be fully liable for all costs, damages, claims, actions, suits, attorneys’ fees and all other expenses arising therefrom or relating thereto. Prior to commencing its Design-Build Work and at all times during the performance of the Design-Build Work, the Design-Builder shall provide the Town with two 24 hour emergency phone numbers where its representatives can be contacted. (F) Traffic Control. In the performance of Construction, the Design-Builder shall comply with all traffic related requirements of Applicable Law and shall comply with the traffic control requirements set forth in the Traffic Control Plan.

SECTION 6.17. CONSTRUCTION MONITORING, OBSERVATIONS, TESTING AND UNCOVERING OF WORK.
(A) Observations and Design-Build Work Review Protocol. During the progress of the Design-Build Work through Final Completion, the Design-Builder shall at all times during normal working hours afford the Town and its designated representatives, including the Owner Representative, every reasonable opportunity for observing all DesignBuild Work at the Project Sites, and shall comply with the Design-Build Work review procedures set forth in Appendix 7 (Design-Build Work Review Procedures). The DesignBuilder shall provide sufficient, safe and proper facilities at all reasonable times for the observation and inspection of the Design-Build Work by the Town and its designated representatives. During any such observation and inspection, all representatives of the Town shall comply with all reasonable health and safety and other rules and regulations applicable to presence in or upon the Project Sites, and shall in no material way interfere with the DesignBuilder’s performance of any Design-Build Work. The right of access provided for under this subsection (A) shall extend to all storage facilities associated with the Design-Build Work, whether located on or off the Project Sites.
(B) Factory Fabrication, Inspection and Testing. The Town reserves the right to have its designated representatives, including the Owner Representative, witness any factory fabrication, inspection or testing. The Design-Builder shall provide the Town with its anticipated schedule for such fabrication, inspection and testing at the initial Project meeting and shall provide 30 days’ advanced written notice of any actual factory fabrication, inspection or test. The Town shall provide the Design-Builder with reasonable advance notice (at least 14 320
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days) of its intention to witness any factory fabrication, inspection or test pursuant to this subsection (B), which notice shall indicate the identity and number of designated representatives of the Town who will witness the fabrication, inspection or test. (C) Design-Builder Tests. The Design-Builder shall conduct all tests of the Design-Build Work (including shop tests) or inspections required by the Contract Standards.

The Design-Builder shall give the Town and the Owner Representative reasonable advance notice (consistent with the approved Quality Management Plan prepared in accordance with Appendix 6 (Design-Build Quality Assurance and Quality Control Requirements)) of tests or inspections required by the Contract Standards prior to the conduct thereof. In no event shall the inability, failure, or refusal of the Town or any of its representatives to attend or be present at or during any such test or inspection delay the conduct of such test or inspection, delay the performance of the Design-Build Work, or otherwise serve as the basis for relief from the Design-Builder’s obligations hereunder. The Engineer-of-Record shall conduct or witness any such test or inspection to the extent required by the Contract Standards. All analyses of test samples shall be conducted by persons appearing on lists of laboratories authorized to perform such tests by the State or federal agency having jurisdiction or, in the absence of such an authorized list in any particular case, shall be subject to the approval of the Town, which approval shall not be unreasonably withheld or delayed. (D) Certificates and Reports. The Design-Builder shall secure and deliver to the Town promptly all required certificates of inspection, test reports, work logs, or approvals with respect to the Design-Build Work as and when required by the Contract Standards. (E) Town Tests, Observations and Inspections. The Town, its employees, agents, representatives and contractors (which may be selected in the Town’s discretion), and all Governmental Bodies having lawful jurisdiction, may at any reasonable time conduct such on-site observations and inspections, and such civil, structural, mechanical, electrical or other tests as the Town deems necessary or desirable to ascertain whether the Design-Build Work complies with the Contract Standards. The Design-Build Period Costs incurred in connection with any of such test, observation or inspection shall result in a Change Order unless such test, observation or inspection reveals a material failure of the Design-Build Work to comply with the Contract Documents or Applicable Law, in which event the costs and expenses of such observation, inspection or test shall be Unallowable Costs borne solely by the Design-Builder.

The Design-Builder shall be entitled to Uncontrollable Circumstance relief as and to the extent provided in Article 14 (Uncontrollable Circumstances) in the event that any requested test, observation or inspection causes a delay in the critical path of the Design-Build Period Work Schedule, but only if such testing, observation or inspection does not reveal any material failure or non-compliance as set forth herein.
(F) Notice of Covering Design-Build Work. The Design-Builder shall give the Town notice in the Monthly Progress Report of its upcoming schedule with respect to the covering and completion of any Design-Build Work regarding the Chico WPCP Connection or structures, and shall update such notice, if necessary, within a reasonable time period (at least seven days) before such covering and completion. The Town shall give the Design-Builder reasonable notice (a minimum of 48 hours) of any intended inspection or testing of such Design-Build Work in progress prior to its covering or completion. If the Town provides such notice, the Design-Builder shall afford the Town a reasonable opportunity to conduct such tests or inspections, which the Town shall promptly complete. At the Town’s written request, the Design-Builder shall take apart or uncover for inspection or testing any previously-covered or completed Design-Build Work; provided, however, that the Town’s right to make such requests shall be limited to circumstances where there is a reasonable basis for concern by the Town as to whether the disputed Design-Build Work complies with the requirements of the Contract Documents. The cost of uncovering, taking apart, or replacing such Design-Build 321
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Work along with the costs related to any delay in performing Design-Build Work caused by such actions, shall:
(1) Be Unallowable Costs borne solely by the Design-Builder, if such DesignBuild Work was covered prior to any observation or test required by the Contract Standards or for which the Town was not provided reasonable advance notice hereunder, or prior to the date on which the Town was to conduct any observation or test as to which the Town has provided notice of its intention to conduct in accordance with this subsection (F); and
(2) In all other cases, as follows:
(a) Be Unallowable Costs borne solely by the Design-Builder, if such observation or test reveals that the Design-Build Work does not comply with the Contract Documents; or
(b) Be Design-Build Period Costs, if such observation or test reveals that the Design-Build Work complies with the Contract Documents, and shall result in a Change Order.

In the event such Design-Build Work does comply with the Contract Documents and the associated costs are determined to be Design-Build Period Costs pursuant to this subsection, the delay caused by such observation or test shall be treated as having been caused by an Uncontrollable Circumstance and any costs incurred with respect to such observation or test shall be costs for the account of the Town in accordance with Article 14 (Uncontrollable Circumstances).

SECTION 6.18. CORRECTION OF WORK.
(A) Correction of Non-Conforming Design-Build Work. Throughout the Design-Build Period, the Design-Builder shall complete, repair, replace, restore, re-perform, rebuild and correct promptly any Design-Build Work that does not conform with the Contract Standards. The Design-Builder shall be solely responsible at its cost for the removal of defective work. In the event of a failure of the Design-Builder to correct any such nonconforming Design-Build Work in a timely manner, the Town shall have the right, but not the obligation, to correct or provide for the correction of such nonconforming Design-Build Work and the costs and expenses reasonably incurred by the Town in connection therewith shall be reimbursed by the Design-Builder to the Town. The Town shall provide the DesignBuilder with seven days’ advance written notice prior to exercising its right to correct or provide for the correction of any nonconforming Design-Build Work pursuant to this subsection (A). (B) Election to Accept Non-Conforming Design-Build Work. The Town may elect by Change Order, at the Design-Builder’s request, to accept non-conforming Design-Build Work and charge the Design-Builder (through a Base Guaranteed Maximum Price Adjustment) for the amount agreed upon by the parties as reflecting the reduction in value of the DesignBuild Work. The Town shall have no obligation to accept non-conforming Design-Build Work pursuant to this subsection (B).
(C) Relation to Other Obligations. The obligations specified in this Section establish only the Design-Builder’s specific obligation to correct the Design-Build Work and shall not be construed to establish any limitation with respect to any other obligations or liabilities of the Design-Builder under this Design-Build Contract. This Section is intended to supplement (and not to limit) the Design-Builder’s obligations under any other provisions of this Design-Build Contract or Applicable Law.
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SECTION 6.19. PROPERTY DAMAGE DURING THE DESIGN-BUILD PERIOD. (A) Damage Prevention. In performing the Design-Build Work, the DesignBuilder shall use care and diligence, and shall take all appropriate precautions in accordance with the Contract Standards to protect the Design-Build Work from loss, damage or destruction.
(B) Restoration. During the Design-Build Period, in case of damage to the Design-Build Work, and regardless of the extent thereof or the estimated cost of restoration, and whether or not any insurance proceeds are sufficient or available for the purpose, the Design-Builder shall promptly undertake and complete restoration of the damage to the Design-Build Work to the character and condition existing immediately prior to the damage and in accordance with the procedures set forth herein, as applicable, regarding Uncontrollable Circumstances, Change Orders and Work Change Directives. The Town shall have the right to monitor, review and inspect the performance of any repair, replacement and restoration work by the Design-Builder in accordance with this Article 6. If the Design-Builder fails to undertake restoration of the damage, or having so commenced fails to complete restoration in accordance with the Contract Documents, the Town may (but shall not be obligated to) undertake or complete restoration at the Design-Builder’s expense to the extent applicable in accordance with this Section. The Town shall provide the Design-Builder with seven days’ advance written notice prior to exercising its right to undertake or complete restoration pursuant to this subsection (B). Notwithstanding any of the foregoing, to the extent that Uncontrollable Circumstances cause damage to the Design-Build Work and insurance proceeds or other third-party payments are not sufficiently available to pay for restoration work pursuant to this subsection (B), the Design-Builder’s obligation to perform such restoration work shall be subject to the receipt of reasonable assurances from the Town of its ability to pay the costs for which it is financially responsible under this Section. (C) Notice and Reports. In addition to the notification requirements set forth in Section 6.16(E) (Emergencies), the Design-Builder shall notify the Town and the insurers under any applicable policy of Required Insurance of any incident causing property damage to the Design-Build Work in excess of $5,000 or of any OSHA recordable injury accident on the Project Sites related to the Design-Build Work, as promptly as reasonably possible after the Design-Builder learns of any such damage or accident. As soon as practicable after learning of any such incident or accident (but in no event later than 72 hours), the Design-Builder shall submit a written report to the Town. Such report shall be updated on a weekly basis and upon culmination of all tests, analysis and reviews, a final report incorporating all of the tests, analysis and reviews and the findings thereof shall be submitted to the Town. The DesignBuilder shall also submit to the Town copies of all accident and other reports filed with (or given to the Design-Builder by) any insurance company, adjuster, or Governmental Body or otherwise prepared or filed in connection with the damage or accident. (D) Insurance and Other Third-Party Payments. To the extent that any repair, replacement or restoration costs incurred pursuant to this Section can be recovered from any insurer or from another third party, each party shall assist each other in exercising such rights as it may have to effectuate such recovery. Each party shall provide the other with copies of all relevant documentation, and shall cooperate with and assist the other party upon request by participating in conferences, negotiations and litigation regarding insurance claims; provided, however, that neither party shall be obligated pursuant to this subsection (D) to provide the other party with documents subject to the attorney-client privilege under the laws of the State.
(E) Payment for Restoration Work and Uninsured Costs. All insurance proceeds and recoveries from third parties resulting from damage to or the loss or destruction of the Design-Build Work, including proceeds from all policies of Required Insurance, shall be 323
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for the benefit of the Town. The Town shall pay the Design-Builder for restoration work required pursuant to this Section with such proceeds and recoveries and, as necessary, other funds of the Town obtained pursuant to the Change Order provisions of this Article 6 and the payment provisions of Article 9 (Contract Compensation), as applicable. All costs not covered by insurance proceeds or third-party payments shall constitute Design-Build Period Costs; provided, however, that such costs shall be Unallowable Costs borne solely by the DesignBuilder to the extent the loss, damage or destruction was caused by Design-Builder Fault or to the extent insurance proceeds are not available due to a failure of the Design-Builder to obtain or maintain any applicable policy of Required Insurance. (F) Repair of the Town and Private Property. The Design-Builder shall promptly at its sole cost and expense repair or replace all the Town Property and all private property damaged by the Design-Builder or any officer, director, employee, representative, agent or Subcontractor of the Design-Builder in connection with the performance of, or the failure to perform, the Design-Build Work. The repair and replacement work shall restore the damaged property, to the maximum extent reasonably practicable, to its character and condition existing immediately prior to the damage. Nothing in this subsection (F) is intended to waive any rights of recovery under applicable policies of insurance.

SECTION 6.20. OPERATIONS AND MAINTENANCE MANUAL.

The Design-Builder shall develop a comprehensive Operations and Maintenance Manual in accordance with the Contract Standards, including the specific requirements set forth in Appendix 5 (General Design-Build Work Requirements). The Operations and Maintenance Manual shall contain a detailed description of the means and methods of properly operating and maintaining the Project; shall integrate all equipment and systems service manuals; shall document standard operating procedures and predictive, preventive and corrective maintenance procedures, practices and schedules; and shall otherwise be sufficiently detailed to permit the Project to be operated and maintained by operations and maintenance personnel by or on behalf of the Town. The Design-Builder shall submit preliminary, interim, pre-final and final versions of the Operations and Maintenance Manual for the Town’s review, comment and approval in accordance with Appendix 5 (General DesignBuild Work Requirements). A pre-final Operations and Maintenance Manual meeting the specific requirements set forth in Appendix 5 (General Design-Build Work Requirements) shall be submitted to and approved by the Town as a condition precedent to the achievement of Substantial Completion in accordance with Section 8.1 (Substantial Completion Date Conditions). A final Operations and Maintenance Manual meeting the specific requirements set forth in Appendix 5 (General Design-Build Work Requirements) shall be submitted to and approved by the Town as a condition precedent to the achievement of Final Completion in accordance with Section 8.4 (Final Completion).

SECTION 6.21. PUNCH LIST ITEMS.
(A) Punch List Requirements. The Design-Builder shall submit a proposed Punch List to the Town and the Owner Representative when the Design-Builder believes that the Design-Build Work has achieved the requirements for Substantial Completion in compliance with the Contract Documents. The “Punch List” shall be a statement of repairs, corrections and adjustments to the Design-Build Work, and incomplete aspects of the DesignBuild Work, which in the Design-Builder’s opinion:
(1) The Design-Builder can complete before the date specified in subsection (B) of this Section, and with minimal interference to the occupancy, use and lawful operation of the Project; and
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(2) Would represent, to perform or complete, a total cost of not more than

0.3% of the portion of the Guaranteed Maximum Price applicable to the construction of the Project (unless the Town determines, in its discretion, that a higher percentage is acceptable, as evidenced by the written approval of the Town Contract Representative).

The Town shall have the right to approve the Punch List in its discretion. (B) Completion of Punch List Items. The Design-Builder shall complete all items on the Punch List within 60 days following the Substantial Completion Date. All work associated with the Punch List items shall constitute Design-Build Work hereunder and shall be performed by the Design-Builder in accordance with the Contract Standards. 325
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ARTICLE 7

MANAGEMENT, LABOR AND SUBCONTRACTORS
SECTION 7.1. MANAGEMENT.
(A) Project Manager. The Design-Builder has designated an employee of the Design-Builder, as the “Project Manager” to oversee all Preliminary Services and all DesignBuild Period Work. When the Design-Builder or any Subcontractor is performing Construction Work, the Construction Superintendent (or designee reasonably acceptable to the Town) shall be present at the Project Sites. The Project Manager shall, among other things:
(1) Be familiar with the Contract Obligations and all requirements of the Contract Documents;
(2) Coordinate the Contract Obligations and give the Contract Obligations regular and careful attention and supervision;
(3) Maintain a daily status log of the Design-Build Work when being performed; and
(4) Attend all Project meetings (including meetings concerning scope, review, pre-bid, pre-construction, and construction matters) with the Town and its representatives.

The Design-Builder represents and warrants that the Project Manager shall be vested with the authority to act on behalf of the Design-Builder in connection with the performance of the Contract Obligations and to bind the Design-Builder with respect to any certification required under this Design-Build Contract to be made by the Project Manager. If the Design-Builder is comprised of two or more persons functioning as a joint venture, the Design-Builder shall have the authority to represent and act for the joint venture. The Design-Builder may change the person assigned as the Project Manager solely in accordance with the provisions of subsection (B) of this Section.
(B) Town Rights With Respect to Key Personnel. The Design-Builder acknowledges that the identity of the Project Manager and the other key management and supervisory personnel proposed by the Design-Builder and its Subcontractors in its Statement of Qualifications was a material factor in the selection of the Design-Builder to perform this Design-Build Contract. Such personnel, their affiliations and their anticipated roles in the performance of the Contract Obligations are set forth in Appendix 11 (Key Personnel and Approved Subcontractors). The Design-Builder shall utilize such personnel to perform such services unless such personnel are unavailable for good cause shown. “Good cause shown” shall not include performing services on other projects for the Design-Builder or any of its Affiliates, but shall include termination for cause, employee death, disability, retirement, resignation or any job protected leave available under Applicable Law. In the event of any such permissible unavailability, the Design-Builder shall utilize replacement key management and supervisory personnel of equivalent skill, experience and reputation. Any on-site personnel change shall be proposed to the Town with reasonable advance notice for its review and approval, which shall not be unreasonably withheld or delayed. The Design-Builder shall remove or replace, or have removed or replaced, any personnel performing the Contract Obligations if the Town, acting reasonably, determines that an unworkable relationship has developed between the Town and the individual.
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SECTION 7.2. LABOR.
(A) Personnel Performance. The Design-Builder shall enforce discipline and good order at all times among the Design-Builder’s employees and all Subcontractors. All persons engaged by the Design-Builder for performance of the Contract Obligations shall have requisite skills for the tasks assigned. The Design-Builder shall employ or engage and compensate engineers and other consultants to perform all engineering and other services required for the Contract Obligations. The Design-Builder shall cause all persons performing Contract Obligations, including all Subcontractors, to comply with all registration, licensing and certification requirements imposed by any Governmental Body or otherwise under Applicable Law, including Design-Builder and Subcontractor employees. (B) Training of Design-Builder and Subcontractor Employees. The DesignBuilder shall provide training for all individuals employed by the Design-Builder or Subcontractors as a prerequisite to their entry to the Project Sites. The Design-Builder’s training program for such employees shall include orientation training, safety and awareness training, and any other training deemed necessary. In addition, the training program shall, to the extent applicable for each employee, provide training for the start-up, Commissioning and Substantial Completion Test activities, and transition management and administration of the Project.
(C) Labor Relations. The Design-Builder shall furnish labor that can work in harmony with all other elements of labor employed for the performance of the Design-Build Work. The Design-Builder shall have exclusive responsibility for disputes or jurisdictional issues among unions or trade organizations representing employees of the Design-Builder or its Subcontractors, whether pertaining to organization of the Design-Build Work, arrangement or subdivision of the Baseline Design Documents, employee hiring, or any other matters. The Town shall have no responsibility whatsoever for any such disputes or issues and the DesignBuilder shall indemnify, defend and hold harmless the Town and the Town Indemnitees in accordance with and to the extent provided in Section 15.1 (Design-Builder’s Obligation to Indemnify) from and against all Loss-and-Expense resulting from any such labor dispute. (D) Notice of Labor Disputes. If the Design-Builder has knowledge of an actual or potential labor dispute that may affect any of the Contract Obligations, the DesignBuilder shall promptly:
(1) Give notice thereof to the Town, including all relevant information related to the dispute of which the Design-Builder has knowledge; and (2) Take all reasonable steps to avoid an impact on the performance of any of the Contract Obligations including by applying for relief to appropriate forums or courts.
(E) Federal and State Prevailing Wage Requirements. The Project requires the payment of prevailing wage rates as set forth below:
(1) Pursuant to California Labor Code Section 1770 et seq., the general prevailing wage rates in the county in which the project work is to be done have been determined by the Director of the California Department of Industrial Relations. These wages are set forth in the General Prevailing Wage Rates for this project, available at the Town and available from the California Department of Industrial Relations’ Internet web site at http://www.dir.ca.gov/DLSR/PWD. Future effective general prevailing wage rates, which have been predetermined and are on file with the California 327
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Department of Industrial Relations are referenced but not printed in the general prevailing wage rates.
(2) Both federal and State wage rates shall apply. Attention is directed to the Federal minimum wage rate requirements in Appendix 12 (Certain Grant Requirements and Guidelines). The Federal minimum wage rates for the Project as predetermined by the United States Secretary of Labor are set forth in the books entitled “Notice to Contractors, Special Provisions, and Contract Documents”. The Federal minimum wage rates for the Project may be obtained at [www.SAM.gov]. Click on “California”, and then click on the “Butte County.” A Contract Administration Memorandum to modify the Federal minimum wage rates, if necessary, will be executed and delivered. [Note: To be confirmed as part of the Preliminary Services.]
(3) If there is a difference between the minimum wage rates predetermined by the United States Secretary of Labor and the general prevailing wage rates determined by the Director of the California Department of Industrial Relations for similar classifications of labor, the Design-Builder and its Subcontractors shall pay not less than the higher wage rate. The California Department of Industrial Relations will not accept lower State wage rates not specifically included in the Federal minimum wage determinations. This includes “helper” (or other classifications based on hours of experience) or any other classification not appearing in the Federal wage determinations. Where Federal wage determinations do not contain the State wage rate determination otherwise available for use by the Design-Builder and its Subcontractors, the Design-Builder and its Subcontractors shall pay not less than the Federal minimum wage rate, which most closely approximates the duties of the employees in question.
(4) The minimum wage shall be periodically increased during the Design-Build Period in an amount equal to the increase in the prevailing wages for those kinds of work as periodically determined by the State Director of Department of Industrial Relations or the United States Secretary of Labor, as applicable. Since the Town has obtained the Grants to pay portions of the Design-Build Price, both federal and State wage rates shall apply and the Design-Builder shall comply with the Davis-Bacon Act (40 U.S.C. 3141-3144 and 3146-3148) as supplemented by the United States Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”) and all applicable provisions summarized in Appendix 12 (Certain Grant Requirements and Guidelines). Where rates for any class of laborers and mechanics differ, the higher rates shall prevail. A copy of the wage rate determination, (including any additional classification and wage rate conformed under 29 CFR 5.5a(1)(ii) and Davis-Bacon poster (WH-1321)) shall be posted at all times at the site of work in a prominent and accessible place where it can be easily seen by the workers.

Notwithstanding the provisions of this Design-Build Contract when entered into by the parties (including the Davis-Bacon Act wage determination attached to Appendix 12 (Certain Grant Requirements and Guidelines)), if the applicable prevailing wage rate has increased during the Term, the rate of pay of laborers and mechanics performing Design-Build Work shall be raised accordingly. The Guaranteed Maximum Price shall not be increased due to increases in the prevailing wage rate during the Term unless such increase is due to an Uncontrollable Circumstance. The Design-Builder and all Subcontractors shall also comply with the Copeland “Anti-Kickback” Act (40 U.S.C. 3145), as 328
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supplemented by United States Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States). (F) Labor Compliance. The Design-Builder and all Subcontractors must submit certified payrolls and labor compliance documentation starting with the first Certified Payroll Report (CPR) and every CPR thereafter.
(G) Non-Discrimination in Employment. During the performance of the Contract Services, the Design-Builder agrees as follows:
(1) The Design-Builder will not discriminate against any employee or applicant for employment because of race, religion, color, gender, sexual orientation or national origin, except where religion, gender, sexual orientation or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the Design-Builder, and the Design-Builder agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause;
(2) The Design-Builder, in all solicitations or advertisements for employees placed by or on behalf of the Design-Builder, will state that the Design-Builder is an equal opportunity employer;
(3) Notices, advertisements and solicitations placed in accordance with federal law, rule or regulation, shall be deemed sufficient for the purpose of meeting the requirements of this provision; and
(4) The Design-Builder shall include the provisions of items (1), (2) and (3) above in every Subcontract of over $10,000 so that the provisions will be binding upon every Subcontractor or vendor.
(H) Drug-Free Workplace. During the performance of this Design-Build Contract, the Design-Builder agrees to (a) provide a drug-free workplace for the DesignBuilder’s employees; (b) post in conspicuous places, available to employees and applicants for employment, a statement notifying employees that the unlawful manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana is prohibited in the Design-Builder’s workplace and specifying the actions that will be taken against employees for violations of such prohibition; (c) state in all solicitations or advertisements for employees placed by or on behalf of the Design-Builder that the DesignBuilder maintains a drug-free workplace; and (d) include the provisions of the foregoing clauses in every Subcontract of over $10,000, so that the provisions will be binding upon each Subcontractor. For the purposes of this Section, “drug-free workplace” means a site for the performance of Contract Obligations performed in conjunction with this Design-Build Contract.

The Design-Builder’s employees, in accordance with this Section, are prohibited from engaging in the unlawful manufacture, sale, distribution, dispensation, possession or use of any controlled substance or marijuana during the performance of this Design-Build Contract. The Design-Builder shall adhere to and certify that its employees comply with this substance abuse program.
(I) Overtime Work. No laborer or mechanic employed at the Project Sites during the Design-Build Period shall be permitted or required to work on a Saturday, Sunday, or a legal holiday of the State or in excess of eight hours on any other day unless the laborer or mechanic receives overtime compensation for all hours worked on a Saturday, Sunday, and a 329
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legal holiday of the State or in excess of eight hours on any other day. For purposes of determining overtime compensation under this subsection, the basic hourly rate of any laborer or mechanic shall not be less than the basic hourly rate determined by the California Department of Industrial Relations to be the prevailing basic hourly rate for corresponding classes of laborer and mechanics on projects of similar character in the State. The DesignBuilder and all Subcontractors shall also comply with the 40 U.S.C. 3702 and 3704, as supplemented by United States Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”) and all applicable requirements of the Grants, including all applicable provisions identified in Appendix 12 (Certain Grant Requirements and Guidelines). (J) Inclusion in Subcontracts. The Design-Builder shall include Section

7.2(E) (Federal and State Prevailing Wage Requirements) through Section 7.2(I) (Overtime Work) in every Subcontract for Design-Build Period Work.
(K) Design-Builder Employee Whistleblower Rights and Requirement to Inform Employees of Whistleblower Rights. As a result of the federal funding that the Town is obtaining to reimburse itself for a portion of the Design-Build Price, this Design-Build Contract and employees working on the Design-Build Work will be subject to the whistleblower rights and remedies in the pilot program on contractor employee whistleblower protections established at 41 U.S.C. 4712 by Section 828 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239) and Federal Acquisition Regulation (FAR) 3.908. The Design-Builder shall inform its employees in writing, in the predominant language of the workforce, of employee whistleblower rights and protections under 41 U.S.C 4712, as described in FAR 3.908. The Design-Builder shall insert the substance of this subsection, including this sentence, in all Subcontracts over the simplified acquisition threshold, as defined in FAR 2.101 on the date of Subcontract award.
(L) Employee-Related Insurance Coverage. The Design-Builder is responsible for securing all employee-related insurance coverage for the Design-Builder and the Design-Builder’s employees and agents that is or may be required by law, and for payment of all premiums, costs, and other liabilities associated with securing such insurance coverage. (M) Applicability of Certain Grant Requirements. Nothing set forth in this Section is intended to limit the Design-Builder’s obligations as identified in Appendix 12 (Certain Grant Requirements and Guidelines). Section 1.2(R) (Applicability, Stringency and Consistency of Contract Standards) shall govern issues of interpretation related to any inconsistency between terms and conditions set forth in this Section and in Appendix 12 (Certain Grant Requirements and Guidelines).
(N) Skilled and Trained Workforce Requirements. The Design-Builder shall comply with the requirements of Section 22172(b) of the California Public Contract Code obligating the Design-Builder to use a skilled and trained workforce in performing the DesignBuild Work, and shall report to the Town monthly on actions taken to achieve such compliance.

SECTION 7.3. SUBCONTRACTING GENERALLY.
(A) Limited Right to Subcontract. The Design-Builder may carry out the Design-Build Work and other Contract Obligations by contracting such obligations to one or more Subcontractors in accordance with the requirements of this Article 7; provided, however, that the Design-Builder shall not subcontract more than seventy percent (70%) of the Construction work on the Project unless otherwise approved by the Town. The Design-Builder shall retain full responsibility to the Town under this Design-Build Contract for all matters 330
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related to the Contract Obligations, notwithstanding the execution of, or the terms and conditions contained in, any Subcontract. Subcontracts entered into by the Design-Builder for the performance of the Contract Obligations shall neither supersede nor abrogate any of the terms or provisions of this Design-Build Contract.
(B) Approval Required. The Subcontractors identified in Appendix 11 (Key Personnel and Approved Subcontractors) are approved by the Town for the performance of the specific Contract Obligations identified therein, subject to the rights of the Town under this Section. The Design-Builder shall retain such Subcontractors to perform such services, unless otherwise agreed to in writing by the Town. All other Subcontractors shall be subject to the approval of the Town, which approval shall not be unreasonably withheld. The Design-Builder shall replace any Subcontractor at the request of the Town, after notice and a reasonable opportunity for corrective action, in the event that the Town determines, acting reasonably, that an unworkable relationship has developed between the Town or the Design-Builder and the Subcontractor. The Town’s approval of any Subcontractor performing Contract Obligations shall be subject to the terms and conditions of Section 7.4 (Self-Performance and Subcontractor Selection).
(C) Performance Failure. The Design-Builder shall retain full responsibility to the Town under this Design-Build Contract for all matters related to the Contract Obligations. No failure of any Subcontractor used by the Design-Builder in connection with the provision of the Contract Obligations shall constitute an Uncontrollable Circumstance or otherwise relieve the Design-Builder from its obligations hereunder to perform the Contract Obligations, except as provided in items (h) and (j) of the list of “Inclusions” in the definition of Uncontrollable Circumstances. The Design-Builder shall be responsible for settling and resolving with all Subcontractors all claims including those:
(1) Arising out of delay, disruption, interference, hindrance, schedule extension caused by the Design-Builder;
(2) Arising from the actions or inactions of the Design-Builder or a Subcontractor; or
(3) Inflicted on the Design-Builder or a Subcontractor by the actions of another Subcontractor.

The Design-Builder shall provide to the Town, promptly following the receipt thereof, copies of any notice of default, breach or non-compliance received under or in connection with any Subcontract that may have a material and adverse effect on performance by the Design-Builder of its obligations under the Contract Documents.
(D) Restricted Persons. In providing the Contract Obligations, the DesignBuilder shall not contract with, or allow any of its Subcontractors to contract with, any person that, in the reasonable opinion of the Town, is a Restricted Person. (E) Subcontractor Licensing. All trade Subcontractors shall possess a valid contractor license as required by Applicable Law for the classification required for the work to be performed by the Subcontractor at the time of the Subcontract and throughout the duration of the Subcontract. Section 7.2(A) (Personnel Performance) shall be applicable to all Subcontractors performing Design Professional Services. (F) Availability of Subcontractors and Key Personnel. At the request of the Town, the Design-Builder shall make the key representatives of Subcontractors available for meetings between the Town and the Design-Builder concerning design review, construction 331
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progress, Substantial Completion or any other matter relating to the performance of the Design-Build Work. The Design-Builder shall provide the Town with periodic human resource allocation summary reports concerning the personnel of the Material Subcontractors, which reports shall include anticipated personnel allocations for all ongoing and planned projects and shall demonstrate human resource sufficiency.
(G) Assignability. All Subcontracts entered into by the Design-Builder with respect to the Project shall be assignable to the Town, solely at the Town’s election and without cost or penalty, upon any early termination of this Design-Build Contract, including convenience termination under Section 12.6 (Town Convenience Termination Rights). (H) Prompt Payment. The Design-Builder shall pay its Subcontractors in accordance with Applicable Law. Any reduction of retention by the Town to the Design-Builder under Article 9 (Contract Compensation) shall result in a corresponding reduction to Subcontractors who have performed satisfactory work. The Design-Builder shall pay Subcontractors the reduced retention within 10 days after the payment of the reduction of the retention to the Design-Builder. No contract between the Design-Builder and its Subcontractors may materially alter the rights of any Subcontractor to receive prompt payment and retention reduction as provided herein. If the Design-Builder fails to make payments in accordance with this Section, the Town may take any one or more of the following actions and the Design-Builder agrees that the Town may take such actions:
(1) To declare the Design-Builder in breach of this Design-Build Contract; (2) Withhold future payments, including retention, until proper payment has been made to Subcontractors in accordance with this Section; or (3) Terminate this Design-Build Contract for an Event of Default by the Design-Builder under Section 12.2(B) (Events of Default Requiring Previous Notice and Cure Opportunity for Termination).

The Design-Builder shall include prompt payment provisions consistent with this Section and the requirements of Applicable Law in every Subcontract, including procurement of materials and leases of equipment entered into in connection with this Design-Build Contract. Nothing contained in this Section or otherwise in this Design-Build Contract shall provide a basis for any Subcontractor claim against the Town.
(I) Subcontractor Claims. The Design-Builder shall pay or cause to be paid to all Subcontractors all amounts due in accordance with their respective Subcontracts and the requirements of this Article 7. The Design-Builder acknowledges that its indemnity obligations under Article 15 (Indemnification) shall extend to all claims for payment or damages by any Subcontractor who furnishes or claims to have furnished any labor, services, materials or equipment in connection with the Design-Build Work. No Subcontractor shall have any right or claim against the Town for labor, services, materials or equipment furnished for the Contract Obligations except the right to give a Stop Payment Notice under Section 9350 et seq. of the California Civil Code.
(J) Design-Builder Employee Claims. The Design-Builder specifically assumes potential liability for actions brought by the Design-Builder’s own employees against the Town and, solely for the purpose of this indemnification and defense, the Design-Builder specifically waives any immunity available to it under State law. The Design-Builder recognizes that this waiver was the subject of mutual negotiation. 332
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(K) Subcontracting with Small and Minority Businesses, Women’s Business Enterprises and Labor Surplus Area Firms. In accordance with 2 CFR 200.321, the DesignBuilder shall take all necessary affirmative steps to cause minority businesses, women’s business enterprises and labor surplus area firms to be used when possible in performance of the Design-Build Work. Affirmative steps must include:
(1) Placing qualified small and minority businesses and women’s business enterprises on solicitation lists;
(2) Assuring that small and minority businesses, and women’s business enterprises are solicited whenever they are potential sources; (3) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women’s business enterprises;
(4) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women’s business enterprises; and
(5) Using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the United States Department of Commerce.

SECTION 7.4. SELF-PERFORMANCE AND SUBCONTRACTOR SELECTION. (A) Self-Performed Construction Work Generally. A minimum of thirty percent (30%) of Construction work on the Project shall be performed by the Design-Builder, or its Affiliates unless otherwise approved by the Town. Additional Construction work may be performed by the Design-Builder, or its Affiliates, with the approval of the Town given in its discretion pursuant to subsection (G) of this Section. The parties agree that, during the performance of the Preliminary Services, specific aspects of the Construction may be proposed for self-performance by the Design-Builder, any Affiliate of the Design-Builder or by an Approved Subcontractor. The Town agrees to approve the proposed self-performance of the required minimum of thirty percent (30%) of Construction work on the Project required by this Section 7.4(A) and to allow the proposed self-performance of Construction work on the Project in excess of such required minimum of thirty percent (30%) of Construction work on the Project if the Design-Builder demonstrates to the Town’s satisfaction that providing for such self-performance is in the best interest of the Project and that the pricing therefor will be fair, reasonable and consistent with industry standards for similar services. The Town, in its discretion, may require that any such demonstration be supported by an independent cost estimate. Notwithstanding the foregoing, the Town shall have the right in its sole discretion to require that the Design-Builder utilize a competitive procedure as set forth in Section 7.4(F) (Competitive Procedures for Construction Work) and (G) (Alternative Procedures for Construction Work) for any and all Construction work proposed to be self-performed by the Design-Builder, any Affiliate of the Design-Builder or by an Approved Subcontractor. (B) Subcontractor Selection Generally. Subcontractors shall be selected on a competitive basis, unless the Town approves otherwise in accordance with subsection (G) (Alternative Procedures for Construction Work) of this Section. (C) Subcontracting Plan. A proposed final Subcontracting Plan shall be prepared during performance of the Preliminary Services and proposed by the Design-Builder 333
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as part of the GMP Submittal, and negotiated and agreed upon by the parties as part of the GMP Amendment.
(D) Division of Work. The Design-Builder shall coordinate and develop with the Town Contract Representative bid packages and work scope descriptions for each separate bid category that represents the entirety of the scope of the Design-Build Work for each phase and stage of the Project. The Design-Builder shall be responsible for determining the Baseline Design Documents that are applicable to each Subcontractor performing Design-Build Work, including all trade Subcontractors and Suppliers. The Design-Builder shall be responsible for the assembly, reproduction and distribution of all documents defining the scope of work for each Subcontractor.
(E) Pre-Bid Conferences. The Design-Builder shall schedule and conduct pre-bid or pre-proposal conferences with trade Subcontractors and Suppliers for the purpose of generating interest in the Project among potential Subcontractors. The Design-Builder shall coordinate such pre-bid conferences with the Town Contract Representative and shall record and preserve conference minutes.
(F) Competitive Procedures for Construction Work. Except for Construction work approved by the Town to be self-performed by the Design-Builder, any Affiliate of the Design-Builder or by an Approved Subcontractor pursuant to Section 7.4(A) (Self-Performed Construction Work Generally) or as may otherwise be approved in writing by the Town Contract Representative in accordance with subsection (G) of this Section, the Design-Builder shall enter into fixed-price Subcontracts for the performance of all Construction work and, in connection therewith, shall utilize a competitive bidding or competitive sealed proposal process approved by the Town. In connection with any such procurement, the Design-Builder shall, in accordance with the Contract Standards:
(1) Develop procurement procedures in consultation with the Town Contract Representative and prepare all necessary procurement documents; (2) Publicly advertise and receive bids or proposals;
(3) Open and review all bids or proposals in a manner that does not disclose the contents of the bids or proposals to persons not employed by the Design-Builder, the Town or the Owner Representative;
(4) Evaluate the bids or proposals in accordance with the selection criteria established in the procurement documents; and
(5) Recommend a bid or proposal for approval by the Town Contract Representative in accordance with such evaluation.

Any Subcontract awarded for the performance of Construction work shall be subject to the Town’s approval and shall have terms and conditions and a risk allocation substantially identical to that established by this Design-Build Contract. The Town Contract Representative’s approval of a bid or proposal recommended by the Design-Builder in accordance with this Section shall not be unreasonably withheld. Without limiting any of the foregoing, the Design-Builder acknowledges and agrees that the Town and the Owner Representative shall have the right to: (i) review and comment on all procurement documents; (ii) attend any bid or proposal openings; (iii) attend any meetings with prospective Subcontractors or Suppliers, including scope review meetings; (iv) review all bids, proposals, and other information developed or otherwise resulting from any competitive procurement, including the Design-Builder’s tabulation, scoring or evaluation materials; and (v) otherwise 334
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participate in the negotiation and contract award process. Upon contract award, the DesignBuilder shall provide the Town Contract Representative with a description of the competitive process undertaken in connection with such contract award, together with copies of all material documents used in connection therewith and agreements resulting therefrom. (G) Alternative Procedures for Construction Work. The Design-Builder may propose to the Town Contract Representative alternative procedures for the procurement of Construction work other than Construction work approved by the Town to be self-performed by the Design-Builder, any Affiliate of the Design-Builder or by an Approved Subcontractor pursuant to Section 7.4(A) (Self-Performed Construction Work Generally). The Town Contract Representative’s approval of any such alternative procedure shall be in the Town Contract Representative’s sole discretion. If the Design-Builder or any Affiliate of the Design-Builder intends to submit a competitive bid or proposal for Construction work, the Design-Builder shall notify the Town Contract Representative in writing prior to the issuance of procurement documents for the work, and the Town Contract Representative shall have the right in its sole discretion to disallow the Design-Builder or any Affiliate of the Design-Builder from submitting a competitive bid or proposal for such Construction work or to require the submittal of all bids or proposals directly to the Town (and not to the Design-Builder) for review, evaluation and selection. Any decision by the Town Contract Representative to approve the performance of Construction work without obtaining competitive bids or proposals shall be subject to an “open book” process to provide the Town Contract Representative with sufficient information to determine whether the proposed pricing of the work is fair, reasonable and consistent with industry standards for similar services.
(H) Procurement of Subcontractors Prior to the GMP Amendment Date. The Design-Builder, during the Preliminary Services Period, in the development of the proposed Base Guaranteed Maximum Price to be submitted to the Town in the GMP Submittal (1) may conduct discussions with and obtain indicative pricing information from potential Construction Subcontractors, and (2) may initiate, subject to the approval of the Town given in its discretion, the formal procurement process for selecting Construction Subcontractors. Any such formal procurement process shall be conducted in accordance with the requirements of this Section and Section 22172.3 of the California Public Contract Code. No Subcontract resulting from such procurement process shall be executed prior to the GMP Amendment Date without the Town’s consent given in its discretion.
(I) Use of Approved Subcontractors; Non-Substitution. The Design-Builder acknowledges that the identity of the Subcontractors identified by the Design-Builder in the Proposal was a material factor in the decision of the Town to execute this Design-Build Contract. Such Subcontractors constitute the Approved Subcontractors. The Approved Subcontractors designated in Appendix 11 (Key Personnel and Approved Subcontractors) for the performance of Design-Build Work are deemed qualified and shall be used for the performance of the portion of the Design-Build Work indicated in Appendix 11 (Key Personnel and Approved Subcontractors). In accordance with Sections 22172.3(a) and (c) of the California Public Contract Code, no substitution of Approved Subcontractors shall be made except upon compliance with the substitution requirements set forth in Chapter 4 (commencing with Section 4100) of Part 1 of Division 2 of the California Public Contract Code (the “Subletting and Subcontracting Fair Practices Act”). (J) Security for Construction Subcontractor Performance. Security for the performance of Subcontractors under Construction Subcontracts shall be provided in a manner agreed to by the parties, and the costs therefor shall constitute Design-Build Period Costs.
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SECTION 7.5. TERMINATION, AMENDMENT, ASSIGNMENT AND
REPLACEMENT OF MATERIAL SUBCONTRACTS.
(A) Termination, Amendment and Assignment. Unless the Design-Builder has, at its earliest practicable opportunity, submitted to the Town notice of the proposed course of action (and any relevant documentation) and the Town has consented in writing to such course of action, such consent not to be unreasonably withheld or delayed, the DesignBuilder shall not:
(1) Terminate, or agree to, or permit the termination of, any Material Subcontract;
(2) Make, or agree to, or permit the making of (a) any material amendment of any Material Subcontract; or (b) any departure by any party from any material provision of any Material Subcontract; or
(3) Permit any Material Subcontract party to assign or transfer to any person any of such Material Subcontract party’s rights or obligations under a Material Subcontract.
(B) Replacement. If any Subcontract at any time lapses, terminates, or otherwise ceases to be in full force and effect (whether by reason of expiration or otherwise), unless the goods, services or rights which were the subject matter of such Subcontract are no longer reasonably required for the Project, the Design-Builder will forthwith enter into, or cause to be entered into, a replacement contract or contracts upon the same or substantially similar terms as the contract so replaced (to the extent reasonably practicable). If at any time any amendment is made to any Material Subcontract, or a replacement Material Subcontract (or any agreement which materially affects the interpretation or application of any Material Subcontract) is entered into, the Design-Builder shall deliver to the Town a copy of each such amendment or agreement within 14 days of the date of its execution or creation, certified as a true copy by the Project Manager.
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ARTICLE 8

SUBSTANTIAL COMPLETION AND FINAL COMPLETION
SECTION 8.1. SUBSTANTIAL COMPLETION DATE CONDITIONS.
(A) Substantial Completion Date Conditions. The following conditions shall constitute the “Substantial Completion Date Conditions”, each of which must be satisfied in all material respects by the Design-Builder in order for the Substantial Completion Date to occur, and each of which must be and remain satisfied as of the Substantial Completion Date:
(1) Physical Completion. All pipelines, facilities, materials and equipment for the Project have been installed in accordance with the requirements of the Contract Documents and inspected (tv’d), (each joint isolated and air tested, Mandrel test for flexible pipes), tested in accordance with Appendix 4 (Baseline Design Documents) and the Project has been cleaned out as necessary and required by the Town and Applicable Law;
(2) Project Equipment. The Project pipes and other equipment are installed in a manner that does not void any Subcontractor or Supplier warranties and such Project pipes and equipment can be operated in a safe and prudent manner; (3) Certificates of Proper Installation. The Design-Builder has delivered to the Town certificates of proper installation for the Project; (4) Verification of Governmental Approval Compliance. The Design-Builder shall provide documentation that all activities and conditions have been met to comply with all the Governmental Approvals and Non-Governmental Approvals; (5) No Encumbrances. There are no Encumbrances registered or recorded on the Project Sites or any part of the Project other than Permitted Encumbrances; (6) Equipment Warranties and Manuals. The Design-Builder shall be in possession of, and shall have delivered to the Town, copies of the warranties of pipes and equipment constituting a part of the Project, together with copies of any related operating manuals supplied by the equipment supplier;
(7) Operations and Maintenance Manual. The Design-Builder has delivered to the Town and the Town has approved in writing, such approval not to be unreasonably withheld or delayed, the pre-final Operations and Maintenance Manual in accordance with the requirements set forth in Appendix 5 (General Design-Build Work Requirements);
(8) Punch List. The Design-Builder and the Town have agreed in writing upon the Punch List (or, if they are unable to agree, the Town shall have prepared and issued the Punch List to the Design-Builder within 30 days of the Design-Builder having submitted its proposed Punch List to the Town); and (9) Approvals. All Governmental and Non-Governmental Approvals required under Applicable Law and this Design-Build Contract to be obtained by the DesignBuilder which are necessary for the continued use of the Project shall be in full force and effect and certified copies of all such Governmental and Non-Governmental Approvals shall have been delivered to the Town.
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The Design-Builder shall notify the Town in writing when all of the Substantial Completion Date Conditions have been achieved and provide evidence and/or certifications to such achievement, as applicable.

SECTION 8.2. CONCURRENCE OR DISAGREEMENT WITH SUBSTANTIAL COMPLETION DATE.
(A) Substantial Completion Date Concurrence. The Substantial Completion Date shall be the day on which the Substantial Completion Date Conditions have been achieved, as determined in accordance with this Section. If the Design-Builder certifies in writing pursuant to Section 8.1 (Substantial Completion Date Conditions) that the Substantial Completion Date Conditions have been achieved, the Town shall determine, within 30 days following its receipt of such report, whether it concurs in such certification. If the Town states in writing that it concurs with the Design-Builder’s certification, the Project shall be deemed to have achieved Substantial Completion and the Substantial Completion Date shall be deemed to have been established on the date of the Design-Builder’s original certification. (B) Substantial Completion Date Disagreement. If the Town determines at any time during such 30-day review period that it does not concur with the Design-Builder’s certification of Substantial Completion, the Town shall immediately send written notice to the Design-Builder of the basis for its disagreement. In the event of any such non-concurrence by the Town, the parties shall meet to discuss such disagreement. Either party may elect to initiate dispute resolution procedures in accordance with Section 11.1 (Dispute Resolution Procedures) following such meeting if the parties are unable to resolve the disagreement.

SECTION 8.3. EFFECT OF UNEXCUSED DELAY; EXTENSION PERIOD. (A) Schedule for Completing the Design-Build Work. The Design-Builder shall achieve Substantial Completion by the Scheduled Substantial Completion Date, as such date may be extended in accordance with this Section. In the event one or more delays in the Design-Build Work caused by an Uncontrollable Circumstance or a Change Order, occurring during the Design-Build Period, the Scheduled Substantial Completion Date shall be the date determined by adding to the Scheduled Substantial Completion Date the aggregate number of days of delay in the performance of the Design-Build Work by the Design-Builder caused by such occurrence.
(B) Unexcused Delay. It is agreed that time is of the essence in the performance of the Design-Build Work. If Substantial Completion has not occurred on or before the Scheduled Substantial Completion Date, the Design-Builder shall be entitled to complete the Substantial Completion Date Conditions in order to secure Substantial Completion of the Project, subject to the Town’s right to terminate this Design-Build Contract in accordance with subsection (D) of this Section. During the Extension Period, the DesignBuilder shall pay delay liquidated damages, as and to the extent provided in subsection (C) of this Section.
(C) Delay Liquidated Damages. Subject to relief in accordance with the terms and conditions of this Design-Build Contract in the event of Uncontrollable Circumstances, if the Substantial Completion Date occurs subsequent to the Scheduled Substantial Completion Date, the Design-Builder shall pay to the Town delay liquidated damages in the amount of $[TBD] per day for each day that the Substantial Completion Date falls after the Scheduled Substantial Completion Date. [Note: Amount to be finalized on the GMP Amendment Date.]
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(D) Failure to Achieve Substantial Completion by End of Extension Period.

If, as of the last day of the Extension Period, the Design-Builder has not achieved Substantial Completion in accordance with this Article 8, an Event of Default by the Design-Builder shall be deemed to have occurred, notwithstanding any absence of notice, further cure opportunity or other procedural rights accorded the Design-Builder thereunder, and the Town shall thereupon have the right to terminate this Design-Build Contract upon written notice to the Design-Builder. Upon any such termination, the Town shall have all of the rights provided in Article 12 (Breach, Default, Remedies and Termination) upon a termination of this DesignBuild Contract for cause.

SECTION 8.4. FINAL COMPLETION.
(A) Requirements of Final Completion. The Design-Builder shall achieve Final Completion within 60 days following the Substantial Completion Date. “Final Completion” shall be deemed to have occurred when all of the following conditions have been satisfied:
(1) Design-Build Work Completed. All Design-Build Work (including the Punch List items, and all clean up and removal of construction materials, demolition debris and temporary facilities and excluding Warranty Work) is complete and in all respects is in compliance with the Contract Documents;
(2) Deliverable Material. The Design-Builder shall have delivered to the Town all Deliverable Material required by the Contract Documents; (3) Final Record Drawings. The Design-Builder shall have delivered to the Town a final and complete reproducible set of “as-built” construction record drawings, as required by Appendix 7 (Design-Build Work Review Procedures); (4) Final Completion Payment Requirements. The Design-Builder shall have satisfied all requirements associated with payment for Final Completion, as set forth in Section 9.5 (Payment Upon Final Completion);
(5) No Event of Default. The Design-Builder shall have certified that there is no Event of Default by the Design-Builder existing under this Design-Build Contract, or event which with the giving of notice or the passage of time would constitute an Event of Default by the Design-Builder hereunder; and
(6) Certification. The Design-Builder has submitted written certification that all of the foregoing conditions have been satisfied and the Town has approved the Design-Builder’s certification, which approval shall be effective as of the date of the Design-Builder’s certification.
(B) Notice and Report of Final Completion. When the Design-Builder believes that it has achieved Final Completion, it shall deliver to the Town a written notice thereof (the “Notice of Final Completion”). The Notice of Final Completion shall contain a report in a form acceptable to the Town, and with sufficient detail to enable the Town to determine the completion by the Design-Builder of all Design-Build Work to be performed under this DesignBuild Contract, including completed Punch List items, and such other information that the Town may require to determine whether Final Completion has been achieved. (C) Achievement of Final Completion. The Town shall, in consultation with the Owner Representative, within 20 days following receipt of the Notice of Final Completion, 339
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inspect the Project, review the report submitted by the Design-Builder and either (1) deliver a written certificate to the Design-Builder stating that all conditions set forth in subsection (A) of this Section have been satisfied, or (2) notify the Design-Builder in writing that Final Completion has not been achieved, stating in detail the reasons therefor. In the event that the Town determines that Final Completion has not been achieved, the Design-Builder shall promptly take such action or perform such Design-Build Work as will achieve Final Completion and shall issue to the Town another Notice of Final Completion pursuant to subsection (B) of this Section. Such procedure shall be repeated as necessary until Final Completion is achieved. If the Town, in its written certificate delivered in accordance with this subsection, states that it concurs that all conditions set forth in subsection (A) of this Section have been satisfied, the Project shall be deemed to have achieved Final Completion and Final Completion shall be deemed to have been established on the date of the Design-Builder’s most recent Notice of Final Completion.
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ARTICLE 9

CONTRACT COMPENSATION
SECTION 9.1. COMPENSATION FOR PRELIMINARY SERVICES.
(A) Compensation for Base Preliminary Services. The Town shall pay the Design-Builder the applicable Preliminary Services Fee for a Preliminary Services Phase in the manner and subject to the terms and conditions set forth in this Design-Build Contract including Appendix 2 (Preliminary Services). The Design-Builder agrees that the applicable Preliminary Services Fee for a Preliminary Services Phase, when earned, shall be the DesignBuilder’s entire compensation and reimbursement for the performance of the applicable Preliminary Services for such Preliminary Services Phase, inclusive of all costs, expenses and disbursements paid or incurred by the Design-Builder, as well as all overhead, administration, risk and profit. The applicable Preliminary Services Fee for a Preliminary Services Phase shall be subject to the not-to-exceed amount set forth for such Preliminary Services Phase in Appendix 2 (Preliminary Services) which amount shall be subject to adjustment solely in accordance with Section 5.2 (Changes to the Scope of the Preliminary Services). (B) Compensation for Additional Preliminary Services. The Design-Builder shall be compensated for any Additional Preliminary Services for a Preliminary Services Phase on a time and materials or lump sum basis, as set forth for such Preliminary Services Phase in Appendix 2 (Preliminary Services) or as otherwise agreed to in writing through a Change Order, a Contract Amendment or a Contract Administration Memorandum (as described in Section 2.2.11 of Appendix 2 (Preliminary Services)). Compensation for Additional Preliminary Services for a Preliminary Services Phase may consist of compensation on the basis of DesignBuilder’s and Subcontractors’ billing rates for such Preliminary Services Phase set forth in Appendix 2 (Preliminary Services) or as otherwise approved by the Town. Appendix 2 (Preliminary Services) or the Change Order or Contract Amendment, as applicable, may set forth additional compensation and Payment Request requirements. (C) Payment Requests and Payment. The Design-Builder shall provide the Town with a Payment Request for the performance of the Preliminary Services on a monthly basis in accordance with the specific requirements set forth in Appendix 2 (Preliminary Services). The Payment Request shall state the amount payable for the month and the total amount paid against the Preliminary Services Fee through the date of the Payment Request, along with a Monthly Progress Report regarding the performance of the Preliminary Services and such other information or documentation as the Town may reasonably require. The Town shall make payment to the Design-Builder of all properly supported invoiced amounts within 30 days of receipt of the Payment Request, subject to the terms and conditions of this DesignBuild Contract. Payments of the Preliminary Services Fee shall not be subject to retainage holdback or, except as provided in subsection (E) of this Section, offset. (D) Non-Compliant Preliminary Services. Nothing contained in this DesignBuild Contract shall require the Town to pay for any unsatisfactory or duplicative Preliminary Services or for Preliminary Services that are not in compliance with the terms and conditions of this Design-Build Contract. The Town shall not be required to pay the Preliminary Services Fee to the Design-Builder at any time the Design-Builder is in breach or default under this DesignBuild Contract. (E) Billing Statement Disputes. If the Town disputes in good faith any Payment Request for Preliminary Services, the Town shall pay all undisputed amounts when due but may withhold payment of the disputed amount, and shall provide the Design-Builder with a written objection indicating the amount being disputed and the reasons then known to 341
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the Town for the dispute. In the event that the Design-Builder disputes any amounts offset by the Town, it shall provide the Town with a written objection indicating the amount being disputed and the reasons then known to the Design-Builder. If the Design-Builder is unable to reach agreement with the Town as to the payment dispute, the Design-Builder may elect to initiate dispute resolution procedures in accordance with Section 11.1 (Dispute Resolution Procedures). When any billing dispute is finally resolved, if payment by the Town to the Design-Builder of amounts withheld is required, such payment shall be made within 30 days of the date of resolution of the dispute, together with interest thereon, from the date originally due, determined as provided in Section 9.9 (Interest on Overdue Obligations) of this DesignBuild Contract.

SECTION 9.2. DESIGN-BUILD PRICE.

The Town shall pay the Design-Builder the Design-Build Price for properly performed and completed Design-Build Work during the Design-Build Period. The DesignBuild Price and the components thereof are defined in Appendix 8 (Design-Build Price). The Town’s obligation to pay the Design-Build Price is subject to the Guaranteed Maximum Price and the terms and conditions of this Article 9 and Appendix 8 (Design-Build Price). Except with respect to (1) payments of the Preliminary Services Fee in accordance with Section 9.1 (Compensation for Preliminary Services), (2) Design-Build Work performed pursuant to an Early Work Package Amendment and (3) Design-Build Work authorized in a Limited Notice to Proceed pursuant to Section 6.1(A)(2) (Limited Notice to Proceed), the Design-Builder shall not be entitled to any compensation for costs or expenses incurred, or Design-Build Work performed, prior to the issuance by the Town of the Notice to Proceed with Design-Build Period Work. Any amount payable for Design-Build Work performed pursuant to an Early Work Package shall, upon the GMP Amendment Date, be part of the Design-Build Price and subject to the Guaranteed Maximum Price and all other terms and conditions of this Article 9 and Appendix 8 (Design-Build Price).

SECTION 9.3. DESIGN-BUILD PRICE PAYMENT PROCEDURE.
(A) Payments. The Design-Builder shall be paid the Design-Build Price in accordance with the final agreed upon Anticipated Design-Build Period Work Cost Schedule of the direct cost of the Design-Build Period Work and the terms and conditions of this Section.

The Design-Builder shall prepare and submit to the Town for its approval preliminary and final drafts of the Anticipated Design-Build Period Work Cost Schedule in accordance with the Contract Standards. After the final Anticipated Design-Build Period Work Cost Schedule is accepted by the Town, it shall be used to assist in the tracking of actual Design-Build Period Costs against the anticipated costs and for keeping track of line item savings and the use of Contingency. The use of line item savings and use of the Design-Builder Contingency will be subject to any conditions or limitations imposed by the Grants. (B) Payment Request. Subject to subsection (C) of this Section, the DesignBuilder shall be entitled to submit Payment Requests to the Town on a monthly basis and to receive from the Town the payments, which (1) shall be made on a cost substantiated basis; (2) shall be subject to the Guaranteed Maximum Price limitations; and (3) shall be subject to the conditions to payment set forth in this Article 9. Each Payment Request shall be in a form reasonably acceptable to the Town and must be accompanied by a monthly requisition report, which shall include:
(1) A reasonably detailed description of all Design-Build Period Work actually completed to date;
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(2) Revisions to the Design-Build Period Work Schedule, which shall reflect changes in the Design-Builder’s critical path schedule since the date of the last Payment Request;
(3) An update to the Anticipated Design-Build Period Work Cost Schedule indicating the amount invoiced against each line item in such month; (4) The amount of the Design-Builder Contingency utilized in such month, the specific uses thereof and the balance of the Design-Builder Contingency remaining after such use;
(5) A certificate of the Project Manager and the Design-Builder Contract Representative certifying (a) the portion of the Design-Build Price payable to the DesignBuilder for completed Design-Build Work; (b) that the Design-Builder is neither in default under this Design-Build Contract nor in breach of any material provision of this Design-Build Contract such that the breach would, with the giving of notice or passage of time, constitute an Event of Default; and (c) that all items applicable to the DesignBuild Period Work entitling the Design-Builder to the requested payment have been completed in accordance therewith and with the Contract Documents; (6) Notice of any Encumbrances which have been filed together with evidence that the Design-Builder has discharged any such Encumbrances or made timely notification to the Payment Bond Surety regarding such Encumbrances; (7) A verified statement setting forth the information required under any Applicable Law and all applicable requirements of the Grants, including all applicable provisions identified in Appendix 12 (Certain Grant Requirements and Guidelines) pertaining to prevailing wages; and
(8) Any other documents or information relating to the Design-Build Work or this Design-Build Contract reasonably requested by the Town or the Owner Representative or as may be required by Applicable Law, this Design-Build Contract or generally accepted accounting practices or principles, including payrolls, receipts, fully detailed invoices with check vouchers or other evidence of Design-Build Period Costs incurred which the Town or the Owner Representative deems necessary to support the amount requested in the Payment Request.

The General Conditions Fee shall be shown as a separate line item on each Payment Request in accordance with Appendix 8 (Design-Build Price). The Design-Builder Fee shall also be shown as a separate line item on each Payment Request. The Design-Builder shall identify the dollar amount of the total expected Design-Builder Fee and General Conditions Fee in each Payment Request based on the total expected Design-Build Period Costs to which the Design-Builder Fee and General Conditions Fee applies in accordance with Appendix 8 (Design-Build Price). The amount requested for the Design-Builder Fee and General Conditions Fee in each Payment Request shall be in the same proportion to the total expected Design-Builder Fee and General Conditions Fee as the amount requested for the applicable Design-Build Period Costs bears to the total expected Design-Build Period Costs to which the Design-Builder Fee and General Conditions Fee applies, subject to the Guaranteed Maximum Price. (C) Online Project Management System. The Design-Build Work shall be administered through the internet-based project management e-Builder system [TBD] (hereinafter referred to as the “Project Online System”). The Design-Builder shall conduct all of its invoicing and billing to the Town through the Project Online System, and the Design-Builder shall perform all contract and billing related functions using the Project Online System to 343
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submit and process all documentation to be generated, received or used in the performance of the Contract Obligations, including Payment Requests and processing of payments for the Contract Obligations. The [Design-Builder]/[Town] shall administer the Project Online System software. The software shall be accessible via the internet to all Town designated personnel and Design-Builder Project team members. The Design-Builder shall designate a member of its key personnel to be the sole responsible party for the Design-Builder for receiving and implementing all software updates and to manage all Project documentation through the Project Online System. The Design-Builder will schedule training sessions with Town’s designated personnel on the Project Online System. [Note: To be determined as part of the Phase 1a Base Preliminary Services.]
(D) Review and Payment. Prior to submitting a Payment Request for the Design-Build Price to the Town, the Design-Builder shall submit a draft Payment Request to the Town Contract Representative and the Owner Representative, including all information required pursuant to this Section. The Owner Representative shall have no fewer than 10 days to review each draft Payment Request. Within such 10-day period, the Owner Representative shall verify or dispute in writing (or by telecommunication promptly confirmed in writing) the Design-Builder’s certification that the Design-Builder has achieved the level of progress indicated and is entitled to payment. If the Owner Representative determines that the DesignBuild Work has progressed as indicated in the draft Payment Request, the Owner Representative shall notify the Town and the Design-Builder, and the Design-Builder shall submit a final, certified Payment Request to the Town, which may not contain any material change from the draft Payment Request reviewed by the Owner Representative, in accordance with subsection (C) of this Section. The Town shall pay the Design-Builder the requisitioned amount included in the final, certified Payment Request within 30 days following receipt of such final, certified Payment Request, subject to subsection (E) of this Section and the Town’s rights to withhold payments under Section 9.4. Disputes regarding payments of the DesignBuild Price shall be resolved in accordance with subsection (E) of this Section. Any undisputed amounts of the Design-Build Price shall be paid within 30 days after receipt of the DesignBuilder’s final, certified Payment Request. (E) Payment Dispute Procedures. If the Town determines that the DesignBuild Period Work required for any payment has not progressed as indicated by the DesignBuilder in the draft Payment Request, or otherwise disputes any Payment Request, the Town shall provide prompt written notice to the Design-Builder as to the Town’s reasons, in reasonable detail, for such determination or the basis for such dispute. After receiving such determination notice, the Design-Builder may make the necessary corrections and resubmit the Payment Request, or the Town may agree on a revised amount, in which case the DesignBuilder shall promptly submit a final, certified Payment Request to the Town as to any undisputed amount. If the Design-Builder is unable to reach agreement with the Town as to the progress of the Design-Build Work or the payment dispute, the Design-Builder may exercise its right to contest the Town’s determination in accordance with the dispute resolution procedures set forth in Section 11.1 (Dispute Resolution Procedures). Any proceedings undertaken to resolve a dispute arising under this subsection (E) shall immediately terminate if (1) the Design-Builder demonstrates to the Town that the Design-Build Period Work has progressed as indicated in the Payment Request giving rise to the dispute and that the disputed Payment Request is correct, and (2) the Town concurs with such demonstration. The Design-Builder shall not be entitled to payment of the amount so requisitioned and disputed except upon resolution of the dispute in accordance with this subsection (E); provided, however, that the Town shall pay all requisitioned amounts which are not in dispute in accordance with subsection (C) of this Section. In the event that upon resolution of any such dispute, it is determined that the Design-Builder was properly entitled to the disputed amount as of a date earlier than the date on which payment is actually made, the Design-Builder shall be entitled to receive, promptly following such resolution, such disputed amount plus interest 344
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on such disputed amount as and to the extent provided under Section 9.9 (Interest on Overdue Obligations).
(F) Retainage. Pursuant to California Public Contract Code Section 7201, the Town will withhold five percent (5%) from each payment to the Design-Builder until Final Completion. The Town will release such retention amount to the Design-Builder forty-five (45) days after Final Completion has been achieved. Subject to approval of and coordination with the applicable Granting Agencies, pursuant to California Public Contract Code Section 22300, for monies earned by the Design-Builder and withheld by the Town to secure the performance of this Design-Build Contract, the Design-Builder, may, at its option, choose to substitute securities meeting the requirements of said California Public Contract Code Section 22300.

Such securities shall be valued by the Town Treasurer, whose decision shall be final.

Securities not listed under California Public Contract Code Section 22300 or California Government Code Section 16430 must be pre-qualified by the Town Treasurer before bid opening in order to be accepted by the Town as security. [Note: During the Phase 1a Preliminary Services, the Town will endeavor to discuss mechanisms to accelerate retainage payments with the agency providing the Grant for construction.] (G) Cost Control and Reporting. The Design-Builder shall implement a Cost/Schedule Status Report (CSSR) program for Design-Build Period Work cost control, which system shall be disclosed to and reviewed and approved by the Town and the Owner Representative prior to the GMP Amendment Date. The Design-Builder shall develop cash flow reports and forecasts that comply with the Document Management Plan and that satisfy the Town’s reporting requirements for the Grants and as otherwise reasonably requested or required by the Town and the Owner Representative, including a good faith calendar quarterly estimate of payments of the Design-Build Price throughout the Design-Build Period, specifying the range of minimum and maximum monthly payments, which shall not exceed the Guaranteed Maximum Price. The Design-Builder shall promptly (within seven days) after acquiring such information, identify and report to the Town and the Owner Representative all variances between estimated costs and actual costs of the Design-Build Period Work, including any proposed corrective action to be taken by the Design-Builder. (H) Certification of Amounts Due. Whenever requested by the Town or the Owner Representative, the Design-Builder shall submit a sworn statement certifying all amounts then due (or yet to become due) the Design-Builder for the Design-Build Period Work (or any portion thereof) and describing any payment or other dispute which may exist between the Design-Builder and any Subcontractor.

SECTION 9.4. PERMISSIBLE WITHHOLDINGS.
(A) Permissible Withholdings. In addition to the amounts required to be retained pursuant to Section 9.3(F) (Retainage), the Town may disapprove and withhold and retain all or any portion of any payment requested in any Payment Request for Design-Build Period Work in an amount equal to the sum of:
(1) Any liquidated damages or reimbursement payments which are due and owing to the Town hereunder;
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(3) Any premiums or amounts paid to procure Required Insurance or similar insurance coverage paid by the Town pursuant to Section 13.1(E) (Maintenance of Insurance Coverage) and Appendix 10 (Insurance Requirements); (4) Any other deductions which are required by Applicable Law; (5) Any payments with respect to which documents to be delivered in connection therewith are not correct and complete;
(6) Any payments to the extent that the Design-Build Period Work covered by such Payment Request (or any previous Payment Request) does not comply with this Design-Build Contract;
(7) Damage to the work of a Separate Contractor to the extent caused by the Design-Builder or any Subcontractor;
(8) Any payments with respect to which any person has filed a Lien resulting from the acts or omissions of the Design-Builder in performing the Design-Build Work and such Lien remains unreleased or unbonded;
(9) All requisitioned payments if an Event of Default of the Design-Builder has occurred under Section 12.2 (Events of Default by the Design-Builder); and (10) In the event the Design-Builder fails to pay any Taxes, assessments, penalties or fees imposed by any Governmental Body, then the Design-Builder authorizes the Town to deduct and withhold or pay over to the appropriate Governmental Body those unpaid amounts upon demand by the Governmental Body.

In addition, the Town may withhold payment for persistent and uncured Design-Builder noncompliance with the administrative provisions of this Design-Build Contract. In the event of any permissible withholding under this Section, the Town shall notify the Design-Builder in writing at least seven days prior to the date payment is otherwise due. The notice shall indicate the specific amounts the Town intends to withhold, the reasons and contractual basis for the withholding, and the specific measures the Design-Builder must take to rectify the Town’s concerns. Any dispute associated with any such withholding shall be handled in accordance with Section 9.3(E) (Payment Dispute Procedures).

SECTION 9.5. PAYMENT UPON FINAL COMPLETION.
(A) Final Completion Payment Request. In connection with the achievement of Final Completion in accordance with Section 8.4 (Final Completion), the Design-Builder shall prepare and submit to the Town and the Owner Representative a Final Completion Payment Request. The Final Completion Payment Request shall enclose:
(1) A notarized affidavit in duplicate stating under oath that all Subcontractors, vendors, and other persons or firms who have furnished or performed labor or furnished materials for the Design-Build Period Work have been fully paid or satisfactorily secured; and if requested by the Town, the Design-Builder shall submit further proof including waiver or release of lien or claims from any Subcontractors or Suppliers;
(2) A certificate of the Surety for both the Performance Bond and the Payment Bond certifying that the Surety consents to payment for Final Completion and 346
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agrees that such payment shall not relieve the Surety of any of its obligations under the Performance Bond or the Payment Bond;
(3) A general release executed by the Design-Builder waiving, upon receipt of payment for Final Completion, all claims arising out of or resulting from the DesignBuild Period Work, except those claims made in writing to the Town and remaining unsettled at the time of such payment, which claims shall be specifically listed in an attachment to the general release, identifying the claimant and the nature of the claim; and
(4) Certificates of insurance confirming that required coverages will remain in effect consistent with the requirements of this Design-Build Contract. (B) Final Completion Payment. If based on the Owner Representative’s (1) observation of the Design-Build Work, (2) final inspection, and (3) review of the Final Completion Payment Request and other documents required by subsections (A) and (C) of this Section and Section 8.4 (Final Completion), the Owner Representative is satisfied that the conditions for Final Completion have been achieved, the Owner Representative shall, within [15] days after receipt of the Final Completion Payment Request, furnish to the Town and the Design-Builder the Owner Representative’s recommendation of payment for Final Completion.

If the Owner Representative is not satisfied, the Owner Representative shall return the Final Completion Payment Request to the Design-Builder, indicating in writing the reasons for not recommending payment, in which case the Design-Builder shall either (1) exercise its right to contest the Owner Representative’s determination in accordance with Section 9.3(E) (Payment Dispute Procedures), or (2) make the necessary corrections and resubmit the Final Completion Payment Request. [Note: Time periods to be developed pending Town discussions with the agency providing the Grant for construction.]
(1) Town Concurrence. If the Town concurs with the Owner Representative’s recommendation of payment for Final Completion, the Town shall, within [15] days, file a written notice of Final Completion and notify the Design-Builder of such concurrence.

As soon as reasonably practicable (but in no event later than [forty-five (45)] days after Final Completion, subject to the Town’s right to dispute payment in accordance with this Design-Build Contract and Applicable Law) after filing such notice, the Town shall pay to the Design-Builder the balance of the Design-Build Price, subject to any withholdings and any other provisions governing final payment specified herein. [Note:

Time periods to be developed pending Town discussions with the agency providing the Grant for construction.]
(2) Town Non-Concurrence. If the Town does not concur with the Owner Representative’s determination, the Town shall return the Payment Request to the Design-Builder, indicating in writing its reasons for refusing payment for Final Completion. The Design-Builder shall promptly make the necessary corrections and resubmit the Payment Request to the Town and the Owner Representative. The Town’s written determination shall bind the Design-Builder, unless the Design-Builder delivers to the Town written notice of a claim within 30 days after receipt of the Town’s determination.

Payment for Final Completion does not constitute a waiver by the Town of any rights relating to the Design-Builder’s obligations under this Design-Build Contract. Except as specifically provided in subsection (A) of this Section with respect to exceptions taken in the DesignBuilder’s general release, payment for Final Completion constitutes a waiver of all claims by the Design-Builder against the Town, including all claims associated with Uncontrollable 347
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Circumstances, relating to the Design-Build Period Work, the payment of the Design-Build Period Costs or otherwise in connection with the Design-Build Period. (C) Final Determination and Approval of Design-Build Price.

Notwithstanding any of the foregoing, the Town shall have no obligation to make payment for Final Completion hereunder until a final accounting of the Design-Build Period Costs has been submitted by the Design-Builder and has been verified by the Town and the Owner Representative. Such accounting shall be provided by the Design-Builder in connection with the Final Completion Payment Request. The aggregate total of payments to the Design-Builder with respect to the Design-Build Price (including amounts retained pursuant to Section 9.3(F) (Retainage)) shall not exceed the total of the actual Design-Build Period Costs, as verified by the Town and the Owner Representative from the Design-Builder’s final accounting, plus the Design-Builder Fee and the General Conditions Fee, which together shall not exceed the Guaranteed Maximum Price. If payments to the Design-Builder exceed that which is due and owing the Design-Builder pursuant to this Article 9, the Design-Builder shall promptly refund the excess to the Town. The Design-Builder acknowledges and agrees that the Town shall have the right to withhold and retain amounts from payment for Final Completion in accordance with Section 9.4 (Permissible Withholdings).
(D) Completion of Design-Build Period Work. Notwithstanding payment for Final Completion pursuant to this Section, the Design-Builder acknowledges and agrees that the performance of the Design-Build Period Work is not complete until the expiration of the Warranty Period, and that the Design-Builder shall have the continuing obligation to perform Warranty Work pursuant to the terms and conditions of Article 10 (Project Warranties) until the expiration of the Warranty Period.

SECTION 9.6. NO SUBSTANTIAL COMPLETION, WAIVER OR RELEASE.

Unless other provisions of this Design-Build Contract specifically provide to the contrary, none of the following, without limitation, shall be construed as (i) the Town’s acceptance of any Design-Build Work which is defective, incomplete, or otherwise not in compliance with this Design-Build Contract, (ii) the Town’s release of the Design-Builder from any obligation under this Design-Build Contract, (iii) the Town’s extension of the DesignBuilder’s time for performance, (iv) an estoppel against the Town, or (v) the Town’s acceptance of any claim by the Design-Builder:
(1) The Town’s payment to the Design-Builder or any other person with respect to performance of the Design-Build Work;
(2) The review, consent, approval or acceptance, as applicable, of any submissions, permit applications, punch lists, other documents, certifications, or Design-Build Work of the Design-Builder or any Subcontractor by the Town, the Owner Representative or any other person;
(3) The review of (or failure to prohibit) any construction applications, means, methods, techniques, sequences, or procedures for the Design-Build Work by the Town, the Owner Representative or any other person; (4) The entry at any time on the Project Site (including any area in which the Design-Build Work is being performed) by the Town, the Owner Representative or any other person;
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(5) Any observation, inspection or testing of (or failure to observe, inspect or test) any Design-Build Work (whether finished or in progress) by the Town, the Owner Representative or any other person;
(6) The failure of the Town, the Owner Representative or any other person to respond in writing to any notice or other communication of the Design-Builder; or (7) Any other exercise of rights or failure to exercise rights by the Town hereunder.

SECTION 9.7. CHANGES IN DESIGN-BUILD PRICE.
(A) Determination of Base Guaranteed Maximum Price Adjustment. Without limiting any requirement of Article 14 (Uncontrollable Circumstances), any Base Guaranteed Maximum Price Adjustment included in a Change Order or Work Change Directive shall be determined as follows:
(1) Where unit prices set forth in the Contract Documents are applicable to the Design-Build Period Work that is the subject of the Change Order or Work Change Directive, by application of such unit prices to the quantities of the items involved; (2) To the extent unit prices are not applicable, by a mutually agreed lump sum; and
(3) To the extent unit prices are not applicable and the parties are unable to reach agreement on a lump-sum value, on the basis of the actual cost of performing the applicable Design-Build Period Work (subject to Cost Substantiation and excluding any cost attributable to Design-Builder Fault), plus the Design-Builder Fee and a Subcontractor mark-up determined in accordance with this Section. (B) Design Professional Services. Without limiting anything in subsection (C) of this Section and subject to any unit rates specified in the Contract Documents, for purposes of determining the amount payable for Design Professional Services included in any Change Order or Work Change Directive, the rates payable for Design-Builder personnel and personnel of Subcontractors providing Design Professional Services shall not exceed their then currently applicable rates for similar services on projects of similar size and scope to the Design-Build Period Work. The Design-Builder shall use commercially reasonable efforts to use available Design-Builder personnel for additional work hereunder before using Subcontractors. (C) Construction Subcontractor’s Maximum Mark-Up on Subcontracted Construction Work. The price payable to all Subcontractors for work performed under Construction Subcontracts, including Construction Subcontractor overhead and mark-ups for risk and profit, shall be commercially reasonable. A Change Order or Work Change Directive may provide for a mark-up payable to Construction Subcontractors for their Subcontractor risk, profit, administration, and all other overhead where Construction work that is the subject of the Change Order or Work Change Directive is performed through such Construction Subcontractors. Any such Construction Subcontractor mark-up shall not exceed 5% of the costs incurred by such Construction Subcontractor in respect of labor, materials, equipment, supplies and any lower-tier Construction Subcontract.

SECTION 9.8. COST SUBSTANTIATION.
(A) Required Substantiation. Without limiting anything in Appendix 8 (Design-Build Price), the Design-Builder shall substantiate any costs for which it claims 349
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compensation hereunder, other than (1) the Design-Builder Fee and (2) the General Conditions Fee, each of which was proposed and negotiated on a percentage basis, and any other costs that are part of a negotiated lump sum price. [Note: General Conditions Fee to be agreed to on the GMP Amendment Date.] In incurring costs which are or may be subject to Cost Substantiation, the Design-Builder shall utilize competitive practices to the maximum reasonable extent (including, where practicable, obtaining three competing bids, quotes, proposals or estimates for costs expected to be in excess of $[50,000]), and shall enter into Subcontracts on commercially reasonable terms and prices in light of the work to be performed and the Town’s obligation to pay for it. [Note: Amount to be determined based on conditions or limitations imposed by the Grants.]
(B) Cost Substantiation Certificate. Any Payment Request for compensation relating to costs requiring Cost Substantiation shall be accompanied by a certificate stating that the Design-Build Period Costs or other costs being invoiced (1) are properly payable under this Design-Build Contract, and specifying the provisions of this Design-Build Contract under which compensation is due; and (2) are equal to amounts paid by the Design-Builder for Design-Build Work that has been properly performed. The Cost Substantiation certificate shall describe the competitive or other process utilized by the Design-Builder to obtain the commercially reasonable price, and shall state that such services and materials are reasonably required pursuant to this Design-Build Contract. Each Cost Substantiation certificate shall be accompanied by copies of all documentation reasonably necessary to demonstrate that the Design-Build Period Costs have been paid and are reasonable. Such documentation shall be in a format and level of detail reasonably acceptable to the Town. To the extent reasonably necessary to confirm the payment of costs that are subject to Cost Substantiation, copies of timesheets, invoices, canceled checks, expense reports, receipts and other documents, as appropriate, including the schedule of values for fixed price components of the Design-Build Work accompanied by documentation demonstrating the progress of such Design-Build Work shall be provided.

SECTION 9.9. INTEREST ON OVERDUE OBLIGATIONS.

Except as otherwise provided for herein, all amounts due hereunder, whether as damages, credits, revenue, charges or reimbursements, that are not paid when due shall bear interest at the rate of interest which is the Overdue Rate, on the amount outstanding from time to time, on the basis of a 365-day year, counting the actual number of days elapsed, and such interest accrued at any time shall, to the extent permitted by Applicable Law, be deemed added to the amount due as accrued. Any such interest shall be in addition to any penalties mandated by State law.

SECTION 9.10. RETENTION AND AUDIT OF BOOKS AND RECORDS. (A) Books and Records. The Design-Builder shall, and shall cause its Subcontractors to, prepare and maintain proper, accurate and complete books and records regarding the Contract Obligations and all transactions related thereto, including all books of account, bills, vouchers, invoices, personnel rate sheets, cost estimates and bid computations and analyses, Subcontracts, time books, daily job diaries and reports, correspondence, and any other documents showing all acts and transactions in connection with or relating to or arising by reason of the Contract Obligations, any Subcontract or any operations or transactions in which the Town has or may have a financial or other material interest hereunder (collectively, “Books and Records”). The Design-Builder and its Subcontractors shall produce such Books and Records for inspection, audit and reproduction within 15 days of request by the Town. All financial records of the Design-Builder and its Subcontractors shall be maintained in accordance with generally accepted accounting principles and generally accepted auditing standards. The Design-Builder and its Subcontractors shall maintain such 350
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Books and Records in accordance with subsection (E) of this Section. The provisions of this Section shall survive termination of this Design-Build Contract. (B) Town Rights to Audit and Examine Payments. All payments whatsoever by the Town to the Design-Builder and all Contract Obligations shall be subject to audit at any time by the Town, the Granting Agencies and the Federal Agencies. The Design-Builder shall provide all evidence necessary to support Cost Substantiation as required under this DesignBuild Contract, and allow the Town, the Granting Agencies and the Federal Agencies access to the Design-Builder’s Books and Records. The Design-Builder shall require all Subcontractors to comply with the provisions of this Section and include the requirements hereof in the written contract between the Design-Builder and the Subcontractor. The Design-Builder shall also require all Subcontractors to include the requirements of this Section in any lower tier Subcontracts relating to the Project.
(C) Notice and Process. Upon written notice by the Town, the Design-Builder shall, and shall cause its Subcontractors to, promptly (in no event later than 15 days following the notice) make available at its office at all reasonable times the Books and Records for examination, audit, or reproduction. Notice shall be in writing, delivered by hand or by certified mail, and shall provide not fewer than five days’ prior notice of the examination or audit. The Town may take possession of such Books and Records by reproducing such Books and Records for off-site review or audit. When requested in the Town’s written notice of examination or audit, the Design-Builder shall provide the Town with copies of electronic and electronically stored Books and Records in a reasonably usable format that allows the Town to access and analyze all such Books and Records. For Books and Records that require proprietary software to access and analyze, the Design-Builder shall provide the Town with two licenses with maintenance agreements authorizing the Town to access and analyze all such Books and Records. If the Design-Builder is unable to provide the licenses, the Design-Builder shall provide the Town with access to the Design-Builder’s accounting system whereby the Town can obtain applicable Books and Records, including job cost reports, material distribution reports, labor cost reports, labor productivity reports, standard time/overtime analysis reports, man-hour reports, and the like.
(D) Selection of Auditor or Examiner and Determination of Scope. The Town has discretion as to the selection of an examiner or auditor and the scope of the examination or audit.
(E) Preservation of Books and Records. The Design-Builder shall preserve all of its Books and Records, and the Town may examine, audit, or reproduce Books and Records, from the Contract Date until the later of five (5) years after the latest of:
(1) Final payment under this Design-Build Contract;
(2) Final settlement of a termination for convenience under Section 12.6 (Town Convenience Termination Rights);
(3) The final resolution of any dispute; and
(4) The last of the notices from the Granting Agencies to the Town that the applicable Grant contract has been closed according to the record retention requirements at 2 CFR 200.334.

The failure by the Design-Builder to make available to the Town Books and Records in accordance with this Section or the Design-Builder’s refusal to cooperate with a notice of audit 351
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or examination shall be deemed a material breach of this Design-Build Contract and grounds for termination.
(F) Overpayment. In the event an audit by the Town determines that the Design-Builder cannot document a cost or expense for which payment has been made, or that the Town has overpaid the Design-Builder, the Design-Builder, upon demand, shall refund to the Town the amounts overpaid or undocumented. If the overpayment exceeds 1% of the total amount that should have been properly paid by the Town during the period audited, then the Design-Builder shall, in addition, reimburse the Town for any and all fees and costs incurred in connection with the inspection or audit. Payments to the Design-Builder, or approval by the Town of any requisition for payment submitted by the Design-Builder, shall in no way affect the Design-Builder’s obligation hereunder or the right of the Town to obtain a refund of any payment to the Design-Builder which is in excess of that to which it was lawfully entitled. 352
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ARTICLE 10

PROJECT WARRANTIES
SECTION 10.1. PROJECT WARRANTIES.
(A) Project Warranties Defined. The Design-Builder warrants to the Town that the Design-Build Work, including all completed materials, equipment, systems and structures comprising the Project, shall: (i) be new, of recent manufacture and of good quality; (ii) conform to the requirements of the Contract Documents; (iii) be free of material faults or defects; and (iv) be suitable for its intended purposes, as established by the Contract Documents (the “Project Warranties”). The Project Warranties are further subject to the following:
(1) Inclusions. The Project Warranties include remedy for damage or defect caused by Substantial Completion Test performed by the Design-Builder or performed by the Town as directed by the Design-Builder.
(2) Exclusions. The Project Warranties exclude remedy for damage or defect caused by capital modifications not undertaken or executed by the Design-Builder under this Design-Build Contract. In addition, except as provided in Item (1), above, the Project Warranties exclude remedy for damage or defect caused by improper or insufficient maintenance or improper operation, or for normal wear and tear under normal usage.
(B) Term of the Project Warranties. The Project Warranties set forth in this Article 10 shall be in full force and effect for the period of time beginning on the Substantial Completion Date and, subject to Section 10.2(D) (Extension of Warranties), continuing for [one year] following the Substantial Completion Date (the “Warranty Period”). [Note: Duration of warranty period to be agreed to by parties, in any event prior to GMP Submittal.] SECTION 10.2. WARRANTY WORK.
(A) “Call-Back” Obligations. If, at any time during the Warranty Period, the Project or any of the Design-Build Work is found to be malfunctioning, defective or otherwise not in accordance with the requirements of the Project Warranties, the Design-Builder shall correct the condition promptly after receipt of written notice from the Town to do so. The Town shall provide such notice promptly after discovery of the condition. The Design-Builder shall respond to critical or emergency service calls from the Town within four hours through teleconference discussions or virtual meetings (or other reasonable means agreed upon by the Design-Builder and the Town). The Design-Builder shall respond to non-critical or nonemergency calls within twenty-four hours by reasonable means agreed upon by the DesignBuilder and the Town. If the Town determines as a result of such teleconference discussions or virtual meetings, that an onsite visit from the Design-Builder is necessary to address such critical or emergency situation, the Design-Builder shall within twelve hours of the initial response to such critical or emergency service call, inspect the Project and, while on site, either correct the problem or initiate a course of action that will fully correct the problem within a reasonable period of time in accordance with Good Engineering and Construction Practice and the specific requirements of this subsection (A). If the Town determines as a result of such teleconference discussions or virtual meetings, that no onsite visit from the Design-Builder is necessary to address such critical or emergency situation, the Design-Builder shall nonetheless initiate a course of action that will fully correct the problem within a reasonable period of time in accordance with Good Engineering and Construction Practice and the specific requirements of this subsection (A). Any such response shall require that a competent representative or 353
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representatives of the Design-Builder familiar with the Project, including its specific equipment, design and operational requirements, participate in such response. In critical or emergency situations, the correction shall be made in the minimum amount of time required in accordance with Good Engineering and Construction Practice. (B) Right of the Town to Proceed with Corrective Action; Design-Builder Liability. If the Design-Builder fails to commence and complete the steps set forth in subsection (A) of this Section within the required time frames, in addition to any other remedies provided under this Design-Build Contract, the Security Instruments or Applicable Law, the Town may commence and complete the correction of such nonconforming DesignBuild Work with its own forces or with third party contractors. If the Town does perform such corrective work, the Design-Builder shall be responsible for all costs reasonably incurred in performing such correction. The Town shall have the right to charge any cost reasonably incurred by the Town in performing corrective action pursuant to this subsection (B) against the funds retained to secure the Warranty Work pursuant to Section 9.3(F) (Retainage); provided, however, that the amount retained by the Town pursuant to Section 9.3(F) (Retainage) shall in no way be deemed to constitute a limit of liability to the Design-Builder for the performance of Warranty Work, and the Design-Builder shall be required to reimburse the Town for all costs reasonably incurred in performing corrective action pursuant to this subsection (B) to the extent such costs exceed the retained funds. (C) No Period of Limitation on Other Obligations. Nothing contained in this Section shall be construed to establish a period of limitation with respect to other obligations that the Design-Builder has under this Design-Build Contract or under Applicable Law with respect to the Design-Build Work, including warranties and obligations with respect to latent defects. The Warranty Period relates only to the specific obligations of the Design-Builder to respond to notices from the Town under the Project Warranties, and has no relationship to the time within which the obligation of the Design-Builder to comply with this Design-Build Contract may be enforced, nor the time within which proceedings may be commenced to establish the Design-Builder’s liability with respect to its obligations under this Design-Build Contract.
(D) Extension of Warranties. The “call-back” obligations set forth in this Section shall apply to all Design-Build Work re-done or corrected pursuant to this DesignBuild Contract. The “call-back” obligations for re-done or corrected elements of the DesignBuild Work shall extend beyond the Warranty Period, if necessary, to provide a minimum oneyear period following acceptance by the Town of such re-done or corrected Design-Build Work; provided, however, that in no event shall such “call-back” obligations extend beyond one year following the expiration of the Warranty Period.
(E) Manufacturers’ Warranties. During the Warranty Period, the DesignBuilder (or the Town) shall be permitted to enforce all warranties provided by manufacturers, suppliers and other third parties with respect to the Design-Build Work. However, as provided in Section 10.4(A) (Manufacturers’ Warranties Generally), no such warranty shall relieve the Design-Builder of any obligation with respect to the Project Warranties. (F) Performance of Warranty Work. The Design-Builder acknowledges that time is of the essence in the performance of all Warranty Work required under this Section in light of the Project’s essential public purpose. Accordingly, all Warranty Work shall be performed in accordance with the Contract Standards and within the minimum amount of time required in accordance with Good Engineering and Construction Practice. The Design-Builder shall perform or cause to be performed all Warranty Work performed under this Section in a manner that will minimize interference with the ongoing operations of the Project and the Town Distribution System. The Design-Builder shall provide a written plan for all proposed Warranty Work (unless expressly waived by the Town).
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(G) Responsibility for Costs. The Design-Builder shall be fully responsible for the costs associated with all Warranty Work, and shall reimburse the Town for its costs resulting from a breach of the Project Warranties, subject to the terms and conditions of this Design-Build Contract.

SECTION 10.3. PROJECT WARRANTIES NOT EXCLUSIVE.

The Design-Builder acknowledges and agrees that the Project Warranties are in addition to, and not in limitation of, any other warranties, rights and remedies available under this Design-Build Contract or Applicable Law, and shall not limit the Design-Builder’s liability or responsibility imposed by this Design-Build Contract or Applicable Law with respect to the Design-Build Work, including liability for design defects, latent construction defects, strict liability, negligence or fraud. The provisions of this Section shall survive the termination of this Design-Build Contract.

SECTION 10.4. MANUFACTURERS’ WARRANTIES.
(A) Manufacturers’ Warranties Generally. Without limiting any of the Project Warranties, the Design-Builder shall, for the protection of the Town, obtain from all Subcontractors (including vendors, suppliers and other persons from which the Design-Builder procures structures, improvements, fixtures, machinery, equipment and materials) such warranties and guarantees as are normally provided with respect thereto and as may be specifically required by the Contract Standards, each of which is hereby assigned to the Town to the full extent of the terms thereof. No such warranty or guarantee shall relieve the DesignBuilder of any obligation hereunder, and no failure of any warranted or guaranteed structures, improvements, fixtures, machinery, equipment or material shall be the cause for any increase in the Guaranteed Maximum Price or otherwise excuse the Design-Builder from the performance of any Design-Build Work or Warranty Work obligations, unless such failure is itself attributable to an Uncontrollable Circumstance.
(B) No Limitation on Third Party Warranties. Nothing in this Design-Build Contract is intended to limit any third party warranty that provides the Town with greater warranty rights than those provided under the Project Warranties, as set forth in this DesignBuild Contract. 355
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ARTICLE 11

DISPUTE RESOLUTION
SECTION 11.1. DISPUTE RESOLUTION PROCEDURES.
(A) Compliance with California Public Contract Code. Notwithstanding any other provision herein, all claims by the Design-Builder for $375,000 or less against the Town shall be subject to the procedures set forth in Sections 20104 to 20104.6 of the California Public Contract Code. The provisions of Sections 20104 to 20104.6 of the California Public Contract Code or a summary thereof is included in Appendix 13 (Certain Provisions of the California Public Contract Code) and shall be set forth in the Issued for Construction Drawings and Specifications. Notwithstanding any other provision herein, all claims by the DesignBuilder against the Town shall be subject to the procedures set forth in Sections 9201 to 9204 of the California Public Contract Code. The provisions of Sections 9201 to 9204 of the California Public Contract Code or a summary thereof is included in Appendix 13 (Certain Provisions of the California Public Contract Code) and shall be set forth in the Issued for Construction Drawings and Specifications. For any Design-Build Work-related claim by the Design-Builder of less than $375,000, such claim shall be processed and resolved pursuant to the resolution of claims provisions set forth in California Public Contract Code Sections 20104 to 20104.6. In addition, claim filing deadlines shall be governed by the California Government Claims Act (California Government Code Sections 900 to 915.4) and California Public Contract Code Section 20104.2.
(B) Alternative Dispute Resolution Procedures. If (i) the provisions of Section 9204 of the California Public Contract Code are no longer in effect, (ii) the mediation conducted pursuant to Section 9204 of the California Public Contract Code does not resolve the parties dispute, or (iii) for any claims brought by the Town against the Design-Builder, each party shall follow the dispute resolution procedures set forth in this Section 11.1(B) (Alternative Dispute Resolution Procedures) to attempt to resolve and settle disputes between themselves concerning the rights, obligations and liabilities of the parties. The dispute resolution procedures set forth in this Section are intended to encourage a negotiated resolution of disputes in a prompt and efficient manner without resort to litigation, which should be a last resort.
(1) Informal Negotiations. Representatives of the Town and the Design-Builder with day-to-day involvement in the administration of this Design-Build Contract and the performance of the Contract Obligations shall initially and promptly enter into negotiations to attempt to address and resolve any disputes that may arise concerning this Design-Build Contract. In connection with such negotiations, the party asserting the dispute shall provide the other with a written description of the nature of the dispute, along with reasonable supporting documentation. The parties shall consider involving senior representatives and other upper management personnel of each party in the informal negotiation process, as well as other representatives of the parties not actively involved in the day-to-day activities associated with the dispute who might be able to take a broader look at the dispute in the context of the overall objectives of the Project and this Design-Build Contract. At the Town’s request, the Design-Builder shall involve senior representatives of any of its Subcontractors in such negotiations. Upon the expenditure of reasonable efforts towards resolution of a dispute through such informal negotiations without reaching agreement, a party may declare that the informal negotiations have been exhausted and such party may request Non-Binding Mediation or may initiate the institution of Legal Proceedings.
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(2) Rights to Request and Decline Non-Binding Mediation. Subject to the requirements of paragraph (1) of this Section 11.1(B) (Alternative Dispute Resolution Procedures), either party may request Non-Binding Mediation of any dispute arising under this Design-Build Contract, whether technical or otherwise. Non-Binding Mediation is voluntary and will not be a condition precedent to initiating the institution of Legal Proceedings by either party. The non-requesting party may decline the request in its sole discretion. If there is concurrence that any particular matter shall be mediated, the provisions of this Section 11.1(B) (Alternative Dispute Resolution Procedures) shall apply. The costs of such Non-Binding Mediation shall be divided equally between the Town and the Design-Builder.
(3) Procedure. The Mediator shall be a professional engineer, attorney or other professional mutually acceptable to the parties who has no current or on-going relationship to either party. The Mediator shall have full discretion as to the conduct of the mediation. Each party shall participate in the Mediator’s program to resolve the dispute until and unless the parties reach agreement with respect to the disputed matter or one party determines in its sole discretion that its interests are not being served by the mediation. (4) Non-Binding Effect. Mediation is intended to assist the parties in resolving disputes over the correct interpretation of this Design-Build Contract.

No Mediator shall be empowered to render a binding decision. (5) Relation to Judicial Legal Proceedings. Nothing in this Section shall operate to limit, interfere with or delay the right of either party under this Article 11 to commence judicial Legal Proceedings upon a breach of this DesignBuild Contract by the other party, whether in lieu of, concurrently with, or at the conclusion of any Non-Binding Mediation.

SECTION 11.2. FORUM FOR DISPUTE RESOLUTION.

It is the express intention of the parties that all Legal Proceedings related to this Design-Build Contract or to the Project or to any rights or any relationship between the parties arising therefrom shall be solely and exclusively initiated and maintained in State or federal courts located in Butte County, California, having appropriate jurisdiction therefor. The DesignBuilder and the Town each irrevocably consents to the jurisdiction of such courts in any such Legal Proceeding and waives any objection it may have to the laying of the jurisdiction of any such Legal Proceeding.

SECTION 11.3. CONTINUANCE OF PERFORMANCE DURING DISPUTE.

Unless otherwise directed in writing by the Town, at all times during the course of any dispute resolution procedure or Legal Proceeding, the Design-Builder shall continue with the performance of the Contract Obligations in a diligent manner and in accordance with the applicable provisions of this Design-Build Contract. The Town shall continue to satisfy its uncontested payment obligations to the Design-Builder during the pendency of any such dispute, subject to the terms and conditions of this Design-Build Contract. Records of the Contract Obligations performed during such time shall be kept in accordance with the applicable provisions of this Design-Build Contract.
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ARTICLE 12

BREACH, DEFAULT, REMEDIES AND TERMINATION
SECTION 12.1. REMEDIES FOR BREACH.
(A) Generally. The parties agree that, except as otherwise provided in this Section, in the event that either party breaches this Design-Build Contract, the other party may exercise any legal rights it may have under this Design-Build Contract and under Applicable Law. Neither party shall have the right to terminate this Design-Build Contract except as expressly provided in this Article 12.
(B) No Effect On Contract Obligations. The exercise by the Town of any of its rights under this Article 12 shall not reduce or affect in any way the Design-Builder’s responsibility hereunder to perform the Contract Obligations. (C) No Duplicative Recovery; Express Remedies. Every right to claim compensation, indemnification or reimbursement under this Design-Build Contract shall be construed so that recovery is without duplication to any other amount recoverable under this Design-Build Contract. Without prejudice to any legal right or entitlement of the DesignBuilder to specific performance or injunctive relief, the Design-Builder’s sole remedy in relation to matters for which an express right or remedy is stated in this Design-Build Contract shall be that express right or remedy, and the Design-Builder shall have no additional right or remedy arising by common law, in equity, by statute or otherwise.

SECTION 12.2. EVENTS OF DEFAULT BY THE DESIGN-BUILDER.
(A) Events of Default Not Requiring Previous Notice or Cure Opportunity for Termination. Each of the following shall constitute an Event of Default by the Design-Builder upon which the Town, by notice to the Design-Builder, may terminate this Design-Build Contract without any requirement of having given notice previously or of providing any further cure opportunity:
(1) Failure to Achieve Substantial Completion. Except to the extent excused due to the occurrence of Uncontrollable Circumstances, the failure of the DesignBuilder to achieve Substantial Completion prior to the end of the Extension Period; (2) Failure to Achieve Final Completion. Except to the extent excused due to the occurrence of Uncontrollable Circumstances, the failure of the Design-Builder to achieve Final Completion by the date set forth in Section 8.4(A) (Requirements of Final Completion);
(3) Security for Performance. The failure of the Design-Builder to obtain and maintain in full force and effect in accordance with the requirements of this DesignBuild Contract any Security Instrument required by Article 16 (Security for Performance) as security for the performance of this Design-Build Contract; (4) Assignment or Transfer Without Consent. The Design-Builder assigns or transfers this Design-Build Contract or any right or interest therein without the Town’s prior written consent;
(5) Insolvency. The insolvency of the Design-Builder as determined under the Bankruptcy Law;
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(6) Voluntary Bankruptcy. The filing by the Design-Builder of a petition of voluntary bankruptcy under the Bankruptcy Law; the consenting of the Design-Builder to the filing of any bankruptcy or reorganization petition against the Design-Builder under the Bankruptcy Law; or the filing by the Design-Builder of a petition to reorganize the Design-Builder pursuant to the Bankruptcy Law; (7) Involuntary Bankruptcy. The issuance of an order of a court of competent jurisdiction appointing a receiver, liquidator, custodian or trustee of the Design-Builder or of a major part of the property of the Design-Builder or the filing against the Design-Builder of a petition to reorganize the Design-Builder pursuant to the Bankruptcy Law, which order shall not have been discharged or which filing shall not have been dismissed within 90 days after such issuance or filing; or (8) Abandonment. The Design-Builder suspends, ceases, stops or abandons the Design-Build Work or fails to continuously and diligently prosecute the DesignBuild Work, exclusive of work stoppages due to an Uncontrollable Circumstance. (B) Events of Default Requiring Previous Notice and Cure Opportunity for Termination. It shall be an Event of Default by the Design-Builder upon which the Town may terminate this Design-Build Contract, by notice to the Design-Builder and subject to the Design-Builder’s cure rights set forth in subsection (C) of this Section, if:
(1) Any representation or warranty in this Design-Build Contract made by the Design-Builder, or in any certificate, schedule, report, instrument, agreement or other document delivered by or on behalf of Design-Builder to the Town pursuant to this Design-Build Contract, is false, misleading or inaccurate in any material respect when made or omits material information when made;
(2) The Design-Builder fails, refuses or otherwise defaults in its duty to pay any amount required to be paid to the Town under this Design-Build Contract within 60 days following the due date for such payment;
(3) The Design-Builder fails to resume performance of the Design-Build Work which has been suspended or stopped within a reasonable time after receipt of notice from the Town to do so or (if applicable) after cessation of the event preventing performance;
(4) The Design-Builder fails to comply with any Applicable Law or fails to comply with the instructions of the Town consistent with this Design-Build Contract; or (5) The Design-Builder commits a material breach of this Design-Build Contract or otherwise fails to perform any other material obligation under this DesignBuild Contract (unless such breach or failure is excused by an Uncontrollable Circumstance as and to the extent provided herein).
(C) Notice and Cure Opportunity. The Design-Builder acknowledges that the Town has an immediate termination right upon the occurrence of any of the defaults listed in subsection (A) of this Section and that the Design-Builder has no further right of notice or cure in such circumstances of default. Conversely, no default listed in subsection (B) of this Section shall constitute an Event of Default giving the Town the right to terminate this Design-Build Contract for cause under this Section unless:
(1) The Town has given prior written notice to the Design-Builder stating that a specified default has occurred which gives the Town a right to terminate this 359
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Design-Build Contract for cause under this Section, and describing the default in reasonable detail; and
(2) The Design-Builder has not initiated within a reasonable time (in any event not more than 10 days from the initial default notice) and continued with due diligence to carry out to completion all actions reasonably necessary to correct the default and prevent its recurrence.

If the Design-Builder shall have initiated and continued with due diligence to carry out to completion all actions required under item (2), above, the default shall not constitute an Event of Default during such period of time (in any event not more than 60 days from the initial default notice) as the Design-Builder shall continue with due diligence to carry out to completion all such actions.
(D) Other Remedies Upon Design-Builder Event of Default. The right of termination provided under this Section upon an Event of Default by the Design-Builder is not exclusive. If this Design-Build Contract is terminated by the Town for an Event of Default by the Design-Builder, the Town shall have the right to pursue a cause of action for actual damages and to exercise all other remedies which are available to it under this Design-Build Contract, under the Security Instruments and under Applicable Law. The Design-Builder shall not be entitled to any compensation for services provided subsequent to receiving any notice of termination for an Event of Default under this Section. (E) Relationship to Liquidated Damages. Termination by the Town pursuant to this Section shall not relieve the Design-Builder or its Surety from liability for the liquidated damages provided for under this Design-Build Contract. The parties acknowledge and agree that such liquidated damages are intended solely to compensate the Town for costs and expenses associated with unexcused delay in the specific circumstances identified in the specific provisions providing for such liquidated damages and are not intended to liquidate all damages that the Town might suffer in the event of a termination due to a Design-Builder Event of Default under this Article 12. Accordingly, except with respect to damages relating solely to the specific circumstances of unexcused delay for which liquidated damages are provided under this Design-Build Contract, the payment of any such liquidated damages by the Design-Builder shall not serve to limit or otherwise affect the Town’s right to pursue and recover damages under subsection (D) of this Section.

SECTION 12.3. LIMITATION ON DESIGN-BUILDER LIABILITY.
(A) Design-Builder Liability Limit. Subject to subsection (B) of this Section, the Design-Builder’s aggregate liability under this Design-Build Contract with respect to damages payable to the Town arising out of a breach of contract claim or suit initiated by the Town shall not exceed an amount equal to: (1) the aggregate value of Early Work Package Prices for all Early Work Packages and the Preliminary Services Fees, during the period commencing on the Contract Date and ending on the GMP Amendment Date; and (2) the sum of (i) the Preliminary Services Fees, (ii) amounts paid by the Town for Early Work Packages and (iii) the Guaranteed Maximum Price commencing on the GMP Amendment Date and at all times thereafter.
(B) Liquidated Damages Sub-Limit. The aggregate liability of the DesignBuilder, with respect to any liquidated damages payable pursuant Section 8.3(C) (Delay Liquidated Damages), shall not exceed an amount equal to 10% of the Guaranteed Maximum Price.
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SECTION 12.4. APPLICABILITY AND INTERPRETATION OF THE LIMITATION ON LIABILITY.

The limitation on Design-Builder liability provided for in Section 12.3 (Limitation on Design-Builder Liability) applies solely to the liability of the Design-Builder for damages to the Town arising out of the performance or unexcused nonperformance of this Design-Build Contract as a consequence of a breach of contract claim initiated by the Town. The limitation on liability provided for in Section 12.3 (Limitation on Design-Builder Liability) shall not apply in the event the Design-Builder wrongfully abandons the Project, and does not apply to any other liability, loss, damage, cost or expense that may be incurred by the Design-Builder in connection with this Design-Build Contract, including any of the following liabilities, losses, damages, costs or expenses:
(1) Any loss, cost or expense sustained by the Design-Builder in the performance of the Design-Build Work or any other loss sustained by the DesignBuilder or any other party in connection with this Design-Build Contract or other agreement relating to the Project (e.g. Design-Build Period Costs necessary to complete the Design-Build Work that are in excess of the Guaranteed Maximum Price); (2) Any fines or penalties levied or imposed by any Governmental Body in connection with the performance or nonperformance of this Design-Build Contract; (3) Any indemnity payment (resulting from third party claims) made by the Design-Builder to the Town;
(4) Payment of any defense costs (including attorney’s fees, to, for, or on behalf of the Town with respect to any third party claim for which the Design-Builder is responsible under the indemnity provisions of this Design-Build Contract); (5) Any proceeds recovered from any Required Insurance under this DesignBuild Contract and the payment of any premium, deductible or self-insured retention with respect thereto; and
(6) Any claims, losses, penalties or settlement payments paid to the Town in connection with any tort claim by the Town against the Design-Builder based on negligence, willful misconduct, fraud, misrepresentation or false claims.

SECTION 12.5. EVENTS OF DEFAULT BY THE TOWN.
(A) Events of Default Permitting Termination. The failure, refusal or other default by the Town in its duty to pay any undisputed amount required to be paid to the Design-Builder under this Design-Build Contract within 60 days following the due date for such payment shall constitute an Event of Default by the Town upon which the DesignBuilder, by notice to the Town, may terminate this Design-Build Contract, subject to the terms and conditions of this Section.
(B) Notice and Cure Opportunity. No such default described in subsection (A) of this Section shall constitute an Event of Default giving the Design-Builder the right to terminate this Design-Build Contract for cause under this subsection (B) unless:
(1) The Design-Builder has given prior written notice to the Town stating that a specified default has occurred which gives the Design-Builder a right to terminate this Design-Build Contract for cause under this Section, and describing the default in reasonable detail; and
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(2) The Town has neither challenged in an appropriate forum the DesignBuilder’s conclusion that such default has occurred nor initiated within a reasonable time (in any event not more than 30 days from the initial default notice) and continued with due diligence to carry out to completion all actions reasonably necessary to correct the default and prevent its recurrence.

If the Town shall have initiated and continued with due diligence to carry out to completion all actions required under item (2), above, the default shall not constitute an Event of Default during such period of time (in any event not more than 60 days from the initial default notice) as the Town shall continue with due diligence to carry out to completion all such actions. (C) Other Town Breaches Constituting Uncontrollable Circumstances.

Except for the Town Events of Default described in subsection (A) of this Section, the failure of the Town to perform any other material obligation under this Design-Build Contract (unless such default is the due to Design-Builder Fault or excused by an Uncontrollable Circumstance as and to the extent provided herein), shall constitute an Uncontrollable Circumstance as and to the extent provided in Article 14 (Uncontrollable Circumstances), and the Design-Builder shall have no right to terminate this Design-Build Contract. (D) Effect of Termination. If this Design-Build Contract is terminated by the Design-Builder for cause as a result of an Event of Default by the Town, the Town shall pay the Design-Builder the same amount which would be payable under Section 12.6 (Town Convenience Termination Rights) if this Design-Build Contract were terminated at the election of the Town for convenience and without cause based on the date of termination. The Town shall have no further liability to the Design-Builder for any Event of Default or termination under this Section.

SECTION 12.6. TOWN CONVENIENCE TERMINATION RIGHTS.
(A) Convenience Termination Right and Payment. The Town shall have the right at any time following the Contract Date, exercisable in its discretion for any reason (including the failure to agree to a GMP Amendment) upon 30 days’ written notice to the Design-Builder, to terminate this Design-Build Contract. (B) Convenience Termination Payment for Preliminary Services. In the event of a convenience termination pursuant to this Section of the Preliminary Services, the DesignBuilder shall not be entitled to a convenience termination settlement payment, but shall be entitled to payment of that portion of the Preliminary Services Fees that has been earned by the terms hereof as of the Termination Date but not yet paid by the Town. No other compensation shall be payable by the Town on account of the Town’s convenience termination of the Preliminary Services.
(C) Convenience Termination Payment for Design-Build Period Work. In the event of a convenience termination pursuant to this Section following issuance of a Notice to Proceed with Design-Build Period Work (including Design-Build Work performed pursuant to an Early Work Package Amendment), the Design-Builder shall be entitled to a convenience termination settlement payment in an amount equal to the sum of:
(1) The difference between, (a) the value of all such Design-Build Period Work performed up to the Termination Date, and (b) all payments already made to the Design-Builder pursuant to this Design-Build Contract for Design-Build Period Work; and
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(2) Subject to subsection (E) of this Section, the reasonable costs incurred by the Design-Builder in connection with the termination, including all actual and reasonable demobilization costs and amounts due in settlement of terminated Subcontracts.

In the event of a termination for convenience under this Section, the Design-Builder acknowledges and agrees that it shall not be entitled to any compensation in excess of the value of the Design-Build Period Work performed plus its settlement and closeout costs. Under no circumstances shall the Design-Builder or any Subcontractor be entitled to anticipatory or unearned profits, unabsorbed overhead, opportunity costs, or consequential or other damages as a result of a termination for convenience under this Section. (D) Early Work Packages. If the parties have entered into any Early Work Package Amendment prior to any convenience termination pursuant to this Section, the Town shall have the right to:
(1) Terminate the Design-Builder’s right to perform any Design-Build Work authorized by any such Early Work Package Amendment and, at the Town’s option, require the Design-Builder to assign any Subcontracts to the Town; or (2) Require the Design-Builder to complete performance of such DesignBuild Work in accordance with the applicable Early Work Package Amendment.

If the Town elects to terminate such Design-Build Work pursuant to clause (1) of this subsection (D), (x) the Design-Builder shall be entitled to a termination settlement payment associated solely with the terminated Early Work Package Design-Build Work, as and to the extent provided in subsection (C) of this Section and (y) shall be relieved from the “call-back” obligations set forth in Section 10.2 (Warranty Work) for any uncompleted Early Work Package Design-Build Work. Nothing in this subsection (D) shall provide grounds for adjustment of any applicable Early Work Package Price or limit the Town’s rights to convenience terminate Design-Build Work authorized by an Early Work Package Amendment without terminating the Preliminary Services or the Design-Build Period Work.
(E) Settlement of Subcontracts. The obligation of the Town to pay amounts due in settlement of Subcontracts under subsection (C) of this Section shall be limited to the reasonable costs incurred by the Design-Builder in settling and closing out Subcontracts that the Town does not elect to have assigned to it pursuant to Section 12.7 (Obligations of the Design-Builder Upon Termination) and shall be subject to Cost Substantiation. Any convenience termination settlement payment under any Subcontract shall be calculated in the same manner as provided in subsection (C) of this Section with respect to the convenience termination settlement payment to the Design-Builder. In no event shall the Town be responsible for anticipatory or unearned profits, unabsorbed overhead, opportunity costs, or consequential or other damages payable to any Subcontractor as a result of the termination of any Subcontract.
(F) Payment of Amounts Due as a Result of Convenience Termination. The Design-Builder shall submit a termination for convenience claim, in the form and with the certification prescribed by the Town, promptly following the Termination Date but in any event not later than 60 days following the Termination Date. The parties will promptly endeavor in good faith to negotiate the settling and closing out of this Design-Build Contract, to be reflected in the final termination for convenience claim submitted by the Design-Builder after such discussions. In the event of a failure of the Design-Builder to submit a termination for convenience claim within the time allowed pursuant to this subsection (F), the Town may determine, on the basis of information available to the Town, the amount, if any, due to the 363
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Design-Builder by reason of the convenience termination and shall thereupon pay to the Design-Builder the amount so determined, if any. In no event shall the amount payable to the Design-Builder pursuant to this Section exceed the Guaranteed Maximum Price as reduced by the amount of payments otherwise made. In addition, any amount payable to the DesignBuilder pursuant to this Section shall be reduced in the amount of (1) any claim the Town may have against the Design-Builder under this Design-Build Contract, and (2) the fair value, as determined by the Town, of property which is destroyed, lost, stolen or damaged so as to become undeliverable to the Town, excluding normal spoilage and except to the extent that the Town shall have otherwise expressly assumed the risk of loss with respect to such property hereunder. Any payment required to be made to the Design-Builder pursuant to this Section shall be made within 120 days following the Termination Date, subject to compliance by the Design-Builder with its obligations under Section 12.7 (Obligations of the Design-Builder Upon Termination). Any payment required to be made by the Design-Builder to the Town pursuant to this Section shall be made within 120 days following the Termination Date. In the event of a dispute between the parties as to the amount of any payment required to be made pursuant to this Section, either party may elect to initiate dispute resolution procedures in accordance with Section 11.1 (Dispute Resolution Procedures).
(G) Completion or Continuance by the Town. Without limiting any other the Town right or remedy provided for under this Design-Build Contract, after the date of any termination under this Section, the Town may at any time (but without any obligation to do so) take any and all actions necessary or desirable to continue and complete the Contract Obligations so terminated, including entering into contracts with other contractors. (H) Convenience Termination Rights as Consideration. The right of the Town to terminate this Design-Build Contract for its convenience and in its sole discretion in accordance with this Section constitutes an essential part of the overall consideration for this Design-Build Contract, and, except with respect to the determination as to the amount due the Design-Builder pursuant to this Section, the Design-Builder hereby waives any right it may have under Applicable Law to assert that the Town owes the Design-Builder a duty of good faith dealing in the exercise of such right. The only compensation payable by the Town upon the exercise of its convenience termination option shall be any amounts specified herein in connection therewith.

SECTION 12.7. OBLIGATIONS OF THE DESIGN-BUILDER UPON
TERMINATION.
(A) Obligations of the Design-Builder Upon Termination. Upon any termination of the Design-Builder’s right to perform this Design-Build Contract, the DesignBuilder shall, as applicable and subject to any written directions provided by the Town:
(1) Stop any further Contract Obligations at the Project Sites or otherwise in connection with the Project;
(2) Cease incurring any further obligations or liabilities pertaining to the Contract Obligations;
(3) Promptly take all action as necessary to protect and preserve all materials, equipment, tools, facilities, and other property pertaining to the Project; (4) Vacate possession of the Project Sites and turn possession of the Project Sites over to the Town;
(5) Clean up and remove all debris and trash from the Project Sites; 364
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(6) Promptly remove from the Project Sites all equipment, tools, or material owned by the Design-Builder, or its Subcontractors, agents or representatives; (7) Promptly deliver a list of all suppliers, materials, machinery, equipment, property or other pending items being fabricated or on order for delivery to the Project but not yet delivered to the Project Sites or incorporated into the Design-Build Work, and comply with the written instructions of the Town with respect to such matters; (8) Deliver a complete copy of all books, notes, and records of the DesignBuilder pertaining to Design-Build Contract performance or planned construction or design activities;
(9) Promptly provide a list of (and make available to the Town for review or copying) all files pertaining to the Design-Build Work, including any and all access and security codes, and including instructions and demonstrations that show how to open and modify such codes;
(10) Promptly deliver complete copies of all Subcontracts to the Town, together with a detailed report on the status of such Subcontracts (status of orders and work performed and not performed or delivered under each Subcontract); a record of proposals made and balances due under each Subcontract; any cancellation penalties pertaining thereto; and any further information required by the Town, and furthermore assist the Town in contacting such Subcontractors to verify such information or answer any questions of the Town;
(11) Assign to the Town any Subcontract for the design and engineering of the Project that the Town elects in writing, in its discretion, to have assigned to it, with the Town assuming, and the Design-Builder being relieved of, all obligations under the Subcontract from the date of the assignment;
(12) Assign to the Town all other Subcontracts at the request of the Town (other than those expressly agreed upon by the parties in writing that will not be subject to assignment) that the Town elects in writing to have assigned to it and cancel or terminate all Subcontracts that the Town does not elect to have assigned to the Town, in accordance with the written instructions of the Town; provided, however, in the event of a termination pursuant to Section 12.6 (Town Convenience Termination Rights), the Design-Builder shall use good faith efforts to assign such Subcontracts but shall not be in breach of its obligation under this item (12) in the event it is unable to cause such assignment despite such good faith efforts;
(13) Promptly assign and transfer to the Town all right, title, and interest of Design-Builder to any items ordered for the Contract Obligations (but not yet delivered to the Project Sites or incorporated into the Project), as requested by the Town in its discretion; provided the Town (or Surety) assumes responsibility for payment thereof; (14) Promptly deliver and assign to the Town all warranties or guarantees by any vendor, supplier, manufacturer, or subcontractor pertaining to the Project; (15) Promptly notify the Town (in writing) of any pending or threatened Legal Proceedings against the Design-Builder; and
(16) Promptly take such other action and execute such documents as requested by the Town, and to assist in the transition of the Contract Obligations to the Surety or the Town, or as reasonably deemed necessary or appropriate by the Town, 365
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and avoid any action or conduct that would increase any expense or cost that would become an obligation or liability to the Town unless requested or directed by the Town Contract Representative in writing.

With respect to any of the foregoing obligations that cannot reasonably be completed by the Termination Date, the Design-Builder shall complete such obligations as promptly as is practicable, but in no event later than 30 days following the Termination Date. Compliance with these obligations shall be conditions precedent to the payment of any sums otherwise due the Design-Builder by reason of the termination. If any Subcontracts are assigned to the Town under this Section, the Town shall not be directly liable to any Subcontractors for amounts owed to such parties for Design-Build Work performed prior to termination, and the DesignBuilder shall remain liable to any such parties for such amounts.

SECTION 12.8. NO WAIVERS.

No action of the Town or the Design-Builder pursuant to this Design-Build Contract (including any investigation or payment), and no failure to act, shall constitute a waiver by either party of the other party’s compliance with any term or provision of this DesignBuild Contract. No course of dealing, failure or delay by the Town or the Design-Builder in exercising any right, power or remedy under this Design-Build Contract shall operate as a waiver thereof or otherwise prejudice such party’s rights, powers and remedies. No single or partial exercise of (or failure to exercise) any right, power or remedy of the Town or the DesignBuilder under this Design-Build Contract shall preclude any other or further exercise thereof or the exercise of any other right, power or remedy. No waiver of any breach of any provision of this Design-Build Contract will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.

SECTION 12.9. WAIVER OF CONSEQUENTIAL AND PUNITIVE DAMAGES.

To the fullest extent permitted by law, and notwithstanding any other provision of the Contract Documents, in no event, whether arising out of contract, breach of warranty (express or implied), tort (including negligence), strict liability, or any other cause of or form of action whatsoever, shall either party be liable to the other for any consequential damages (including damages for loss of use, loss of profits or anticipated profits, loss of revenue, and loss of business opportunity) or punitive damages arising out of or in connection with the performance or non-performance of its obligations under this Design-Build Contract; provided, however, that, except as provided in the next sentence, the waiver of the foregoing damages under this Section is intended to apply only to disputes and claims as between the Town and the Design-Builder and, with respect to damages payable by the Design-Builder, the waiver of consequential or punitive damages applies only to the extent such damages are in excess of consequential or punitive damages covered or required to be covered by insurance. Nothing in this Section shall limit the indemnification obligations of the Design-Builder hereunder for any consequential or punitive damages payable to third parties resulting from any act or circumstance for which the Design-Builder is obligated to indemnify the Town or the Town Indemnitees hereunder. In addition, the Design-Builder acknowledges and agrees that the foregoing waiver shall not apply to, serve as a limitation or defense in respect of, or otherwise limit any right of recovery the Town may have respecting:
(1) Any damage, cost, loss or expense (including defense costs) to the extent (a) covered or required to be covered by the proceeds of Required Insurance, or (b) covered by the proceeds of insurance actually carried by or insuring Design-Builder under policies solely with respect to the Project, regardless of whether required to be carried pursuant to Appendix 10 (Insurance Requirements); and 366
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(2) The Design-Builder’s obligation to pay any liquidated damages specifically provided for under this Design-Build Contract. 367
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ARTICLE 13

INSURANCE
SECTION 13.1. INSURANCE.
(A) Required Insurance. At all times during the Term, the Design-Builder shall obtain, maintain and comply with the terms and conditions of the Required Insurance in accordance with Appendix 10 (Insurance Requirements) and shall pay all premiums with respect thereto as the same become due and payable. The Required Insurance shall be provided concurrently with the execution and delivery of this Design-Build Contract (or as otherwise specified in Appendix 10 (Insurance Requirements)) and remain in effect for the periods specified in Appendix 10 (Insurance Requirements). The Design-Builder’s liability insurance, including professional liability, shall not include any design-build or similar exclusions that would compromise coverages because of the design-build nature of the work to be performed pursuant to this Design-Build Contract. Appendix 10 (Insurance Requirements) also includes notice and reporting requirements for the Required Insurance, including the required workers’ compensation insurance.
(B) Insurers, Deductibles and the Town Rights. All insurance required by this Section shall be obtained and maintained from insurance companies, firms or entities that comply with the applicable requirements specified in Appendix 10 (Insurance Requirements).

The insurers shall be selected by the Design-Builder with the consent of the Town, which consent shall not be unreasonably withheld, and authorized to write such insurance in the State. All deductibles or self-insured retention amounts included in the Required Insurance coverage shall be subject to the reasonable approval of the Town. The Design-Builder shall be responsible for the payment of any deductible amounts. The Design-Builder shall also be responsible for all self-insured retentions contained in its insurance coverages, as well as any excluded losses if such losses are within the liability of the Design-Builder hereunder. All policies of insurance, except for professional liability and workers’ compensation, shall list the Town as an additional insured, and provide for:
(1) Payment of the losses to the Town, and to the Design-Builder as their respective interests may appear;
(2) At least 30 days’ prior written notice of the cancellation thereof to the Town (except for cancellation resulting from non-payment of premium); and (3) At least 10 days’ prior written notice of cancellation thereof to the Town in the event of cancellation resulting from non-payment of premium.

All policies of insurance, except for professional liability and workers’ compensation, provided by or on behalf of the Design-Builder shall be primary and non-contributory with respect to any insurance or self-insurance carried by the Town. The Town shall have the right to fully participate in all insurance claim settlement negotiations and to approve all final insurance settlements, which approval shall not be unreasonably withheld. (C) Certificates, Policies and Notice. The Required Insurance, including any renewals thereof, shall be evidenced by certificates of insurance as provided herein and in Appendix 10 (Insurance Requirements). No later than 30 days prior to the issuance date of each policy of Required Insurance, including any renewals thereof, the Design-Builder shall provide the Town with a draft certificate of insurance for review and approval, and shall deliver the final, approved certificate of insurance to the Town promptly following its issuance. All policies of Required Insurance shall be made available for review by the Town’s outside legal 368
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counsel, who will conduct the review solely for the purposes of providing the Town legal advice as to whether the Design-Builder’s policies meet Required Insurance requirements hereunder.

The Design-Builder shall certify to the Town that the policies being provided for review are a complete, true and correct compilation of all relevant policies evidencing insurance required under Appendix 10 (Insurance Requirements), recognizing that the Town and its designated representatives will rely on such certification. The Town’s outside legal counsel’s legal advice shall be limited to only confirming whether such policies of insurance comply with the insurance requirements in this Design-Build Contract, or generally describing the nature of any deficiency observed in such policies. In its submission, the Design-Builder may claim confidentiality with respect to its insurance policies to protect the same against disclosure under the Public Information Act, and in such event the Town will take reasonable action (up to seeking an attorney general opinion regarding exceptions that may apply) to seek to preserve the confidentiality of the information about the Design-Builder’s insurance policies in the possession of the Town’s outside legal counsel, pursuant to the attorney client privilege and any other applicable exception to disclosure under the Public Information Act that the Town in its sole discretion determines to assert. In addition, upon conducting such review, if the Town’s outside legal counsel determines that policies of Required Insurance contain deficiencies that cause such policies not to comply with the requirements of this Design-Build Contract, the Design-Builder shall remedy the defect and, without limiting any other the Town right or remedy provided for under this Design-Build Contract, in the event of a failure of compliance with the Required Insurance, the Design-Builder shall reimburse the Town for the cost and expense incurred by the Town in connection with the Town’s outside legal counsel attempting to resolve such policy deficiencies by modification or endorsement thereof to achieve compliance with the requirements hereunder.
(D) Subcontractors. Whenever a Subcontractor is utilized, the DesignBuilder shall either obtain and maintain or require the Subcontractor to obtain and maintain insurance in accordance with the applicable requirements of Appendix 10 (Insurance Requirements).
(E) Maintenance of Insurance Coverage. If the Design-Builder fails to pay any premium for Required Insurance, or if any insurer cancels any Required Insurance policy and the Design-Builder fails to obtain replacement coverage so that the Required Insurance is maintained on a continuous basis, then, at the Town’s election (but without any obligation to do so), the Town, following notice to the Design-Builder, may pay such premium or procure similar insurance coverage from another company or companies and upon such payment by the Town the amount thereof shall be immediately reimbursed to the Town by the DesignBuilder. The Design-Builder shall not perform Design-Build Work during any period when any policy of Required Insurance is not in effect. The Design-Builder shall comply with all Insurance Requirements and take all steps necessary to continuously insure the Project in accordance with the requirements of this Design-Build Contract. The failure of the DesignBuilder to obtain and maintain any Required Insurance shall not relieve the Design-Builder of its liability for any losses intended to be insured thereby. Should any failure to provide continuous insurance coverage occur, the Design-Builder shall indemnify, defend and hold harmless the Town Indemnitees in accordance with and to the extent provided in Article 15 (Indemnification) from and against all Loss-and-Expense arising out of such failure. The purchase of the Required Insurance to satisfy the Design-Builder’s obligations under this Section shall not be a satisfaction of any Design-Builder liability under this Design-Build Contract or in any way limit, modify or satisfy the Design-Builder’s indemnity obligations hereunder.
(F) Compliance with Insurer Requirements. The Design-Builder shall comply promptly with the requirements of all insurers providing the Required Insurance pertaining to the Project. The Design-Builder shall not knowingly do or permit anything to be 369
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done that results in the cancellation or the reduction of coverage under any policy of Required Insurance.
(G) Reductions for Insurance Proceeds. Whenever this Design-Build Contract obligates the Town to pay any amount to the Design-Builder in respect of an event or circumstance for which, or with respect to the consequences of which, an insurance claim may be made by the Design-Builder under the Required Insurance, the amount which the Town is obligated to pay will be reduced by the amount of insurance proceeds which the Design-Builder recovers or would have been entitled to recover if it had complied with the requirements of this Design-Build Contract or any policy of Required Insurance. 370
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ARTICLE 14

UNCONTROLLABLE CIRCUMSTANCES
SECTION 14.1. UNCONTROLLABLE CIRCUMSTANCES GENERALLY.
(A) Extent of Relief Available to the Design-Builder. If an Uncontrollable Circumstance occurs, the Design-Builder may be entitled to relief from its obligations, extensions of time and compensation, as and to the extent provided in this Article 14. Such relief shall be available irrespective of whether an obligation of this Design-Build Contract expressly states that it is excused by Uncontrollable Circumstances. (B) Mitigation Given Effect. Any relief to which the Design-Builder is entitled under this Article 14 on account of Uncontrollable Circumstances shall be adjusted to account for the effect of the mitigation measures which were or should have been taken by the DesignBuilder in compliance with its duty to mitigate under Section 17.9 (General Duty to Mitigate). (C) Applicable Law Compliance. Nothing in this Article 14 shall be interpreted as relieving the Design-Builder of its obligation, following any and all Uncontrollable Circumstances, to perform its obligations under this Design-Build Contract in compliance with Applicable Law.
(D) Contract Obligations Not Affected; Resumption of Performance. The occurrence of an Uncontrollable Circumstance shall not excuse the Design-Builder from performing any obligation hereunder not directly affected by the occurrence of the Uncontrollable Circumstance. Upon the occurrence of an Uncontrollable Circumstance, the Design-Builder shall promptly use all reasonable efforts to eliminate the cause thereof and resume performance of the affected Contract Obligations.

SECTION 14.2. UNCONTROLLABLE CIRCUMSTANCE CLAIM PROCEDURES. (A) Notice and Written Report. In order to assert an entitlement based on the occurrence of an Uncontrollable Circumstance, the Design-Builder shall give notice of the occurrence of the Uncontrollable Circumstance to the Town as soon as practicable, and in any event within 14 days of the date the Design-Builder has knowledge that the Uncontrollable Circumstance has caused or is likely to cause an entitlement under this Design-Build Contract. The Design-Builder’s notice shall include a written report:
(1) Describing the Uncontrollable Circumstance and the cause thereof, to the extent known;
(2) Stating the date on which the Uncontrollable Circumstance began and its estimated duration, to the extent known;
(3) Summarizing the consequences of the Uncontrollable Circumstance and the expected impact on the performance of the Design-Builder’s obligations under this Design-Build Contract; and
(4) Indicating the nature and scope of the Design-Builder’s potential entitlement to relief.
(B) Updates. The Design-Builder shall provide the Town with periodic updates, together with further details and supporting documentation, as it receives or develops additional information pertaining to the Uncontrollable Circumstance and the matters 371
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described in subsection (A) of this Section. In particular, the Design-Builder shall notify the Town as soon as the Uncontrollable Circumstance has ceased and of the time when performance of its affected obligations can be resumed. (C) Submittal of Relief Request. The Design-Builder shall submit to the Town a further notice making its request for specific relief, the basis therefor and the event giving rise to the requested relief (the “Relief Request Notice”), promptly after becoming aware of such occurrence, but not more than 30 days after the Town’s receipt of the notice required under subsection (A) of this Section; provided that, if the specific relief cannot reasonably be ascertained within such period, the Design-Builder shall furnish the Relief Request Notice within such longer period as is reasonably necessary to detail the event and ascertain such relief; however, in any event, such Relief Request Notice shall be submitted to the Town not more than 60 days after the Town’s receipt of the notice required under subsection (A) of this Section. Each Relief Request Notice shall include all information required in this Article 14 with respect to the specific relief being requested.
(D) Delay in Notification. The Design-Builder acknowledges that any delay by the Design-Builder in submitting to the Town any Uncontrollable Circumstance notice or any information required under this Section, beyond the applicable time period required under this Section may adversely affect the Town, and agrees that the relief to be provided in respect of any Uncontrollable Circumstance shall be reduced or limited to the extent of any such adverse effect, as reasonably determined by the Town. The Design-Builder shall be deemed to have become aware of the occurrence of an Uncontrollable Circumstance if such occurrence could reasonably have been known, identified, discovered or observed by the Design-Builder through the employment of procedures consistent with Good Engineering and Construction Practice. Without limiting any of the foregoing, if the Design-Builder fails to submit a Relief Request Notice within 60 days after the Town’s receipt of the notice required under subsection (A) of this Section or to notify the Town of the occurrence of an Uncontrollable Circumstance within 60 days following the occurrence, then the Design-Builder shall be deemed to have irrevocably and forever waived and released any and all claim or right with respect to the subject Uncontrollable Circumstance.
(E) Multiple and Overlapping Claims. The Design-Builder may make multiple but not duplicative claims with respect to an Uncontrollable Circumstance. (F) Burden of Proof and Mitigation. The Design-Builder shall bear the burden of proof in establishing the occurrence of an Uncontrollable Circumstance and the entitlement to relief based thereon, and shall demonstrate that the Design-Builder complied with its mitigation obligations under Section 17.9 (General Duty to Mitigate). (G) Town Response. The Town may, but shall have no obligation to, respond to the Design-Builder’s initial notice concerning the occurrence of an Uncontrollable Circumstance under subsection (A) of this Section. Within 15 days after receipt of a Relief Request Notice pursuant to subsection (C) of this Section, the Town shall issue a written determination as to the extent, if any, to which it concurs with the Design-Builder’s request and the reasons therefor.
(H) Agreement or Dispute. The agreement of the parties as to the specific relief to be given the Design-Builder on account of an Uncontrollable Circumstance shall be evidenced by a Change Order, a Contract Amendment or other written agreement between the parties. Either party may refer any dispute for resolution in accordance with Section 11.1 (Dispute Resolution Procedures).
(I) Certifications. Each submittal made under this Section by the DesignBuilder shall be accompanied by a certification of the Design-Builder Contract Representative 372
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that the submittal is made in good faith; that the supporting data are complete and accurate at the time of the submittal to the best knowledge of the Design-Builder; and that the requested relief accurately reflects the relief to which the Design-Builder reasonably believes it is entitled hereunder. The Design-Builder shall have no entitlement to relief for uncertified claims.

SECTION 14.3. UNCONTROLLABLE CIRCUMSTANCES RELIEF.

If and to the extent that an Uncontrollable Circumstance interferes with, delays or increases the cost to the Design-Builder performing the Design-Build Work in accordance herewith, the Design-Builder shall, subject to Section 14.4 (Schedule Relief and Related Price Relief), be entitled to:
(1) Relief from its performance obligations;
(2) An adjustment to the Scheduled Substantial Completion Date; (3) An adjustment to the Contract Compensation for such costs (except as otherwise expressly provided herein); or
(4) A Base Guaranteed Maximum Price Adjustment (except as and to the extent provided in this Section, Section 14.2 (Uncontrollable Circumstance Claim Procedures) and Article 15 (Indemnification));
or any combination thereof, each of which properly reflects the interference with performance, the time lost as a result thereof, or the amount of the increased cost, in each case only to the minimum extent necessary to compensate the Design-Builder or provide performance or schedule relief and only to the extent directly attributable to the Uncontrollable Circumstance.

Any cost reduction achieved or which should have been achieved taking into consideration the Design-Builder’s obligations under this Design-Build Contract (including the mitigation measures to be undertaken by the Design-Builder pursuant to Section 17.9 (General Duty to Mitigate)) shall be reflected in a reduction of the amount of the additional Contract Compensation or Base Guaranteed Maximum Price Adjustment as appropriate to reflect such mitigation measures. The Design-Builder shall not be entitled to any price relief on account of any costs incurred as the result of Design-Builder Fault or an act, event or circumstance that the Design-Builder is obligated to insure against under Article 13 (Insurance), irrespective of any limits of coverage and of any deductible applicable under any policy of insurance maintained or required to be maintained thereunder.

SECTION 14.4. SCHEDULE RELIEF AND RELATED PRICE RELIEF. (A) Conditions to Schedule Relief.
(1) Float in the Design-Build Period Work Schedule. The parties acknowledge and agree that “float” in the Design-Build Period Work Schedule:
(a) Means the amount of time that any given activity or logically connected sequence of activities shown on the Design-Build Period Work Schedule may be delayed before it delays the occurrence of a scheduled completion milestone; and
(b) Is an expiring resource available to the Project for the benefit of both parties, available to each of them as needed to absorb delays in achieving the scheduled completion milestones, whether such delays are caused by Uncontrollable Circumstances or otherwise.
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(2) Required Demonstration for Schedule Relief. Without limiting any other requirement of this Article 14, the Design-Builder shall not be entitled to any adjustment to the Scheduled Substantial Completion Date, the number of days allowed for the achievement of Final Completion or any other schedule adjustment under this Design-Build Contract, unless the Design-Builder demonstrates:
(a) That an Uncontrollable Circumstance has occurred and, subject to the time impact analysis requirements of Appendix 5 (General Design-Build Work Requirements), that the Uncontrollable Circumstance impacts one or more critical path activities in the Design-Build Period Work Schedule, as updated, maintained and revised by the Design-Builder in accordance with the Contract Standards, such that the Uncontrollable Circumstance will consume all available float and extend the time required to achieve the scheduled milestone from which relief is being sought;
(b) The Design-Builder, in view of all circumstances, exercised reasonable efforts to avoid the delay; and
(c) The delay was not caused by the Design-Builder or any other Design-Builder Person.
(B) Compensable Uncontrollable Circumstance Delay. The Design-Builder shall be entitled to schedule relief but shall not be entitled to price relief for schedule delays due to (i) unusually severe and abnormal climatic conditions, (ii) the existence of Differing Site Conditions, or (iii) the existence of a Regulated Site Condition. Price relief for schedule delays caused by other Uncontrollable Circumstances (including delays in the receipt of Town Managed Governmental Approvals or Town Managed Non-Governmental Approvals, a Change in Law, Town Fault or the performance or non-performance of Separate Contractors, in each case, as and to the extent such events or circumstances constitute Uncontrollable Circumstances pursuant to this Article 14) shall be limited to a reasonable and equitable Base Guaranteed Maximum Price Adjustment, which shall not exceed the sum of (i) a reasonable daily value for the Design-Builder’s General Conditions Costs based upon the Design-Builder’s General Conditions Fee multiplied by the number of days of compensable Uncontrollable Circumstance delay, and (ii) any additional Design-Build Period Costs attributable to such Uncontrollable Circumstance delay taking into consideration the Design-Builder’s obligations under this Design-Build Contract (including the mitigation measures to be undertaken by the Design-Builder pursuant to Section 17.9 (General Duty to Mitigate)) as substantiated in accordance with Section 9.8 (Cost Substantiation).
(C) Concurrent Delay. The Design-Builder’s entitlement to price relief for Uncontrollable Circumstance delays under subsection (B) of this Section shall be limited to the extent of any concurrent delay by the Design-Builder or to the extent performance was, or would have been, suspended, delayed, or interrupted by Design-Builder Fault.

SECTION 14.5. UNUSUALLY SEVERE AND ABNORMAL CLIMATIC EVENTS.

If the Design-Builder intends to seek Uncontrollable Circumstance schedule relief on the basis of unusually severe and abnormal climatic events, the Design-Builder shall, in addition to fulfilling all other requirements of this Article 14, demonstrate that the actual weather encountered was unusually severe and abnormal compared with the five-year average weather statistics compiled by the United States National Oceanic and Atmospheric Administration for the time of year and locality of the Project Sites. 374
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SECTION 14.6. RELEASE.

The Design-Builder’s acceptance of any performance, price or schedule adjustment under this Article 14 shall be construed as a release of the Town by the DesignBuilder (and all persons claiming by, through or under the Design-Builder) from any and all losses or expenses resulting from, or otherwise attributable to, the event giving rise to the adjustment claimed. Notwithstanding the foregoing, the parties may agree that any schedule, performance or price relief does not constitute the entire relief to be afforded due to such event but only to the extent set forth in a written agreement of the parties.

SECTION 14.7. UNIT PRICING.
[Note: To be developed if parties negotiate per unit charge for treatment/disposal of contaminated material that would constitute an Uncontrollable Circumstance as part of the GMP Amendment.]
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ARTICLE 15

INDEMNIFICATION
SECTION 15.1. DESIGN-BUILDER’S OBLIGATION TO INDEMNIFY.

The Design-Builder shall indemnify, defend and hold harmless the Town, and their respective elected officials, trustees, members, appointed officers, employees, representatives and agents, including the Owner Representative (each a “the Town Indemnitee”), from and against (and pay the full amount of) any and all Loss-and-Expense that any the Town Indemnitee may sustain in connection with any claim made by one or more third parties (including claims for loss of or physical damage to property or assets), or any claim for, or in respect of, the death, personal injury, disease or illness of any person, including any Town Indemnitee, to the extent arising by reason of (or alleged to result from or in connection with) any:
(1) Design-Builder Fault;
(2) Non-compliance by the Design-Builder or any Design-Builder Person with any of the provisions of this Design-Build Contract or any Subcontract or any document, instrument or agreement delivered to the Town as required under this Design-Build Contract;
(3) Activities on the Project Sites, as and to the extent provided in Section

4.4(C) (Access to the Project Sites);
(4) Non-compliance with Applicable Law, as provided in Section 4.6(C) (Fines, Penalties and Remediation);
(5) Release of Regulated Substances by the Design-Builder or any DesignBuilder Person, as provided in Section 6.4(A) (Design-Builder Responsibilities); (6) Labor disputes, as provided in Section 7.2(B) (Labor Relations); (7) Subcontractor claims, as provided in Section 7.3(I) (Subcontractor Claims);
(8) Design-Builder Employee claims, as provided in subsection 7.3(K) (Subcontracting with Small and Minority Businesses, Women’s Business Enterprises and Labor Surplus Area Firms);
(9) Intellectual Property claims, as provided in Section 17.7(A) (Protection from Infringement);
(10) Failure by the Design-Builder to advise the Town of any potential infringement or unauthorized use resulting from a the Town-directed Change Order, as provided in Section 17.7(C) (Exceptions to Infringement Protection); (11) Any claims of harassment arising from the conduct of the Design-Builder or any Design-Builder Person;
(12) Breach by the Design-Builder or any Design-Builder Person of, or noncompliance by the Design-Builder or any Design-Builder Person with, any Governmental Approval or Applicable Law, or the failure of the Design-Builder or any 376
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Design-Builder Person to obtain all necessary Governmental Approvals which it is required to obtain in accordance with this Design-Build Contract; or (13) Any other act, event or circumstance as to which the Design-Builder is obligated to provide an indemnity hereunder.

The Design-Builder’s indemnity obligations under this Section shall not be limited by any coverage exclusions or other provisions in any policy of Required Insurance or other insurance maintained by the Design-Builder which is intended to respond to such events.

Notwithstanding the foregoing, the Town Indemnitees’ right to indemnification pursuant to this Section shall be reduced by all insurance, settlement proceeds or third party indemnification proceeds actually received by the Town Indemnitees. This Section may be relied upon by the Town Indemnitees and may be enforced directly by any of them against the Design-Builder in the same manner and for the same purpose as if pursuant to a contractual indemnity directly between them and the Design-Builder.

SECTION 15.2. INDEMNIFICATION PROCEDURES.
(A) Notice. If a Town Indemnitee receives any notice, demand, letter or other document concerning any claim for which it appears that the Town Indemnitee is, or may become entitled to, indemnification or compensation under this Design-Build Contract in respect of the entire claim, the Town Indemnitee shall give notice in writing to the DesignBuilder as soon as reasonably practicable. (B) Consolidation of Claims. If a notice of claim is given pursuant to subsection (A) of this Section by more than one the Town Indemnitee relating to the same facts or circumstances, the Design-Builder may, in its discretion, require the consolidated administration and coordination of all such noticed claims by common counsel. (C) Design-Builder Right to Dispute Claim. If notice is given as provided in subsection (A) of this Section, the Design-Builder shall be entitled to dispute the claim in the name of the Town Indemnitee at the Design-Builder’s own expense and take conduct of any defense, dispute, compromise, or appeal of the claim and of any incidental negotiations. The Town Indemnitee will give the Design-Builder all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim. (D) Rights and Duties of the Parties. With respect to any claim conducted by the Design-Builder pursuant to subsection (C) of this Section:
(1) The Design-Builder shall keep the Town Indemnitee fully informed and consult with it about material elements of the conduct of such defense; (2) The Design-Builder shall demonstrate to the Town Indemnitee, at the reasonable request of the Town Indemnitee, that the Design-Builder has sufficient means to pay all costs and expenses that it may incur by reason of conducting such defense; and
(3) The Design-Builder shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that any such compromise or settlement involving non-monetary obligations of the Town, or otherwise having a direct effect upon its continuing operations, shall (1) contain a full release of the Town and (2) be subject to the consent of the Town, which consent shall not be unreasonably withheld, conditioned or delayed. If requested by the DesignBuilder, the Town (with the approval of the Board of Trustees, given in its discretion) shall, at the sole cost and expense of the Design-Builder, cooperate with the Design377 Town of Paradise Sewer Project Design-Build Contract
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Builder and its counsel in contesting any claim which the Design-Builder elects to contest.
(E) The Town Indemnitee Rights to Conduct Defense. A Town Indemnitee may take conduct of any defense, dispute, compromise or appeal of any claim subject to the Design-Builder’s indemnification obligations hereunder, including any incidental negotiations, if
(1) The Design-Builder fails to notify the Town Indemnitee of its intention to take conduct of the relevant claim within 14 days of the notice from the Town Indemnitee under subsection (A) of this Section or notifies the Town Indemnitee that it does not intend to take conduct of the claim; or
(2) The Town Indemnitee reasonably determines that a conflict exists between it and the Design-Builder which prevents or potentially prevents the DesignBuilder from presenting a full and effective defense; or (3) The Design-Builder fails to comply in any material respect with subsection (D) of this Section in a timely manner following reasonable notice from the Town.
(F) Transfer of Conduct of Claim to the Town Indemnitee. A the Town Indemnitee may at any time, give notice to the Design-Builder that it is retaining or taking over, as the case may be, the conduct of any defense, dispute, compromise, settlement or appeal of any claim, or of any incidental negotiations, to which subsection (E) of this Section applies. On receipt of such notice the Design-Builder will promptly take all steps necessary to transfer the conduct of such claim to the Town Indemnitee, and will provide to the Town Indemnitee all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(G) Design-Builder Responsibility for Costs. If the Town Indemnitee is entitled and elects to conduct its own defense pursuant to subsection (E) of this Section, all reasonable Fees and Costs incurred by the Town Indemnitee in investigating, defending and conducting the claim for which it is entitled to indemnification hereunder shall constitute an indemnified loss subject to the Design-Builder’s indemnification obligations hereunder. 378
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ARTICLE 16

SECURITY FOR PERFORMANCE
SECTION 16.1. BONDS.
(A) Performance and Payment Bonds. Performance Bonds and Payment Bonds for the Design-Build Work shall be provided as follows:
(1) Early Work Packages Bonds. If the Town authorizes an Early Work Package, then the Design-Builder shall provide to the Town, on or before the Early Work Package Amendment Date, a Performance Bond and a Payment Bond covering the Design-Builder’s faithful performance of such Early Work Package Amendment and the payment of its obligations arising thereunder. The penal sum of each such bond shall be in an amount equal to the Early Work Package Price applicable to the Early Work Package. The Payment Bond shall be in the form required by California Civil Code Section 3247 as attached as Transaction Form B issued by a Surety meeting the requirements set forth in subsection (D) of this Section, and the Performance Bond shall be in the form attached as Transaction Form C issued by a Surety meeting the requirements set forth in subsection (D) of this Section. If the Town authorizes additional Early Work Packages, then the Design-Builder shall, on or before each subsequent Early Work Package Amendment Date, provide to the Town, for each subsequent Early Work Package, an amendment to the above-referenced Performance Bond and Payment Bond, executed by both the Design-Builder and the Surety, that:
(a) increases the penal sum of each bond by an amount equal to the Early Work Package Price of such Early Work Package; and (b) affirmatively states that the obligations under such bonds encompass the Design-Builder’s performance and payment obligations under each Early Work Package Amendment. (2) Amendment of Early Work Package Bonds on GMP Amendment Date. If Performance and Payment Bonds have been provided pursuant to item (1) above, then the Design-Builder shall, on or before the GMP Amendment Date, provide to the Town an amendment to the Performance Bond and the Payment Bond, executed by both Design-Builder and the Surety, that: (a) increases the penal sum of each bond to an amount equal to the Base Guaranteed Maximum Price; and (b) affirmatively states that such bonds cover faithful performance of this Design-Build Contract and payment of obligations arising thereunder.
(3) New Design-Build Work Performance and Payment Bonds on GMP Amendment Date. If the Performance Bond and the Payment Bond have not been provided pursuant to item (1) above, then the Design-Builder shall, on or before the GMP Amendment Date, provide to the Town a Performance Bond and a Payment Bond that are in the penal sum of an amount equal to the Base Guaranteed Maximum Price and cover faithful performance of this Design-Build Contract and payment of obligations arising hereunder. The forms of such bonds are set forth in Transaction Forms B and C and shall be issued by a Surety meeting the requirements set forth in subsection (D) of this Section.
(4) Example Penal Sum Determination. The following example is intended to illustrate the operation of the above, on the assumption that there are two Early Work Package Amendments before the GMP Amendment:
(a) The parties enter into an Early Work Package Amendment for Scope X with a lump sum price of $1 million. The Performance Bond and the 379
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Payment Bond will each have a penal sum of $1 million, and such bonds will cover the performance and payment obligations of the Design-Builder for Scope X.
(b) The parties enter into another Early Work Package Amendment for Scope Y with a lump sum price of $1.5 million. The Performance Bond and the Payment Bond will be amended to have a penal sum of $2.5 million, and such bonds will cover the performance and payment obligations of DesignBuilder for Scope X and Y. (c) The parties enter into the GMP Amendment, with a Base Guaranteed Maximum Price of $10 million, inclusive of the lump sum pricing for Scopes X and Y. The Performance Bond and the Payment Bond will be amended to have a penal sum of $10 million, and such bonds will cover all performance and payment obligations of the Design-Builder under this Design-Build Contract, inclusive of Scope X, Y and all other Design-Build Work under this Design-Build Contract.
(5) Base Guaranteed Maximum Price Adjustments. The amount of the Performance Bond and the Payment Bond shall be increased by the Design-Builder to reflect any Base Guaranteed Maximum Price Adjustments at the time such adjustment is implemented by the parties and as a condition to its entitlement to the adjustment. (6) Term of Bonds. The Payment Bond shall be security for the payment of all persons supplying labor and material in the prosecution of the Design-Build Work and shall remain open until Final Completion. The Performance Bond shall secure the performance of the Design-Build Work and shall remain open until Final Completion. (B) Bond Forms. Each bond given or tendered to the Town pursuant to this Design-Build Contract must be on the Town forms (Transaction Forms B and C), with no changes made by the Design-Builder or the Surety, and must be dated, executed, and accompanied by a power of attorney stating that the attorney in fact executing the bond has requisite authority to execute such bond. The bonds must be dated and must be no more than 30 days old when delivered to the Town.
(C) Delivery of Bonds. The Design-Builder shall deliver required bonds to the Town within the time limits specified in this Section. (D) Surety Requirements. The bonds required to be provided pursuant to this Section shall be issued by a Surety:
(1) Approved by the Town having a rating of A- or better in the latest revision of the A.M. Best Company’s Insurance Report;
(2) Listed in the United States Treasury Department’s Circular 570, “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsurance Companies”;
(3) Holding a certificate of authority to transact surety business in the State; and
(4) In compliance with the requirements of State law.
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If a bond is given or tendered to the Town pursuant to this Design-Build Contract in an amount greater than 10 percent of Surety’s capital and surplus, the Surety shall provide certification that the Surety has reinsured that portion of the risk that exceeds 10 percent of the Surety’s capital and surplus. The reinsurance must be with one or more reinsurers who are duly authorized, accredited, or trusted to do business in the State. The amount reinsured by any reinsurer may not exceed 10 percent of the reinsurer’s capital and surplus. The amount of allowed capital and surplus must be based on information received from the California Board of Insurance.
(E) Monitoring of Sureties. The Design-Builder shall be responsible throughout the Term for monitoring the financial condition of any Surety issuing bonds under this Design-Build Contract and for making inquiries no less often than annually to confirm that each such Surety maintains at least the minimum rating level specified in this Section. In the event the rating of any issuing Surety falls below such minimum level, or if any surety company is declared bankrupt or becomes insolvent or has the rights to do business in the State terminated, the Design-Builder shall promptly notify the Town of such event and shall promptly take steps to cause continued compliance with this Section by furnishing or arranging for the furnishing of a substitute or additional bond of a surety company whose rating and other qualifications satisfy all above requirements, unless the Town agrees to accept the surety company that no longer satisfies the minimum rating level specified above, or agrees to an alternative method of assurance. Upon such notice by the Design-Builder of such an event, the Town shall not unreasonably withhold its approval of such assurance. (F) Completion of Work. Without limiting any other right or remedy provided for under the Performance Bond, if this Design-Build Contract is terminated by the Town for an Event of Default and the Surety fails to pursue completion of the Contract Obligations with reasonable speed, the Town may arrange for completion of the Contract Obligations and deduct the cost thereof from any amount otherwise due to the Design-Builder under this Design-Build Contract, including the cost of additional the Town administration and consultant services made necessary by such default or neglect. In such event, no further payment shall then be made by the Town until all costs of completing the Contract Obligations shall have been paid.

SECTION 16.2. COSTS OF PROVIDING SECURITY INSTRUMENTS.

The cost and expense of obtaining and maintaining the Security Instruments required under this Article 16 as security for the performance of the Design-Builder’s obligations hereunder shall be borne by the Design-Builder. Premiums for the Performance Bonds and the Payment Bonds shall be Design-Build Period Costs that may be requisitioned by the Design-Builder in accordance with the provisions of Appendix 8 (Design-Build Price). 381
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ARTICLE 17

MISCELLANEOUS PROVISIONS
SECTION 17.1. OWNERSHIP OF THE PROJECT.

The Project shall be owned by the Town at all times. The Design-Builder shall perform the Contract Obligations provided for herein as an independent contractor and shall not have any legal, equitable, tax beneficial or other ownership or leasehold interest in the Project. The Design-Builder shall not use the Project for any purpose other than the purposes contemplated by this Design-Build Contract or to serve or benefit any person other than the Town.

SECTION 17.2. RELATIONSHIP OF THE PARTIES.

The Design-Builder is an independent contractor of the Town and the relationship between the parties shall be limited to performance of this Design-Build Contract in accordance with its terms. Neither party shall have any responsibility with respect to the services to be provided or contractual benefits assumed by the other party. Nothing in this Design-Build Contract shall be deemed to constitute either party a partner, agent or legal representative of the other party. No liability or benefits, such as workers compensation, pension rights or liabilities, or other provisions or liabilities arising out of or related to a contract for hire or employer/employee relationship shall arise or accrue to any party’s agent or employee as a result of this Design-Build Contract or the performance thereof.

SECTION 17.3. AFFILIATE TRANSACTIONS.

If any costs to be reimbursed by the Town to the Design-Builder under this Design-Build Contract arise from a transaction between the Design-Builder and any Affiliate of the Design-Builder, the Design-Builder shall notify the Town of the specific nature of the contemplated transaction, including the identity of the Affiliate, the nature of the work to be performed by the Affiliate and the anticipated cost to be incurred, before any such transaction is consummated or cost incurred. The Design-Builder shall not enter into any such transaction, nor incur any such cost, absent the written approval of the Town in its sole discretion.

SECTION 17.4. CONTRACT ADMINISTRATION.
(A) Administrative Communications. The parties recognize that a variety of contract administrative matters will routinely arise throughout the performance of this DesignBuild Contract. These matters will by their nature involve requests, notices, questions, assertions, responses, objections, reports, claims, and other communications made personally, in meetings, by phone, by mail and by electronic and computer communications. The purpose of this Section is to set forth a process by which the resolution of the matters at issue in such communications, once resolution is reached, can be formally reflected in the common records of the parties so as to permit the orderly and effective administration of this Design-Build Contract.
(B) Contract Administration Memoranda. The principal formal tool for the administration of routine matters arising under this Design-Build Contract between the parties that do not require a Contract Amendment shall be a “Contract Administration Memorandum.” A Contract Administration Memorandum shall be prepared, once all preliminary communications have been concluded, to evidence the resolution reached by the Town and the 382
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Design-Builder as to matters of interpretation and application arising during the course of the performance of their obligations hereunder. Such matters may include, for example:
(1) Issues as to the meaning, interpretation or application of this DesignBuild Contract in particular circumstances or conditions; (2) Calculations required to be made;
(3) Notices, waivers, releases, satisfactions, confirmations, further assurances, consents and approvals given hereunder; and (4) Other similar routine contract administration matters. (C) Procedure. Either party may request the execution of a Contract Administration Memorandum. When resolution of the matter is reached, a Contract Administration Memorandum shall be prepared by or at the direction of the Town reflecting the resolution. Contract Administration Memoranda shall be serially numbered, dated, signed by the Design-Builder Contract Representative and the Town Contract Representative, and, at the request of the Town, co-signed by a Senior Supervisor for the Design-Builder. The Town and the Design-Builder each shall maintain a parallel, identical file of all Contract Administration Memoranda, separate and distinct from the Contract Amendments and all other documents relating to the administration and performance of this Design-Build Contract. (D) Effect. Executed Contract Administration Memoranda shall serve to guide the ongoing interpretation and application of the terms and conditions of this DesignBuild Contract. Any material change, alteration, revision or modification of this Design-Build Contract, however, shall be effectuated only through a formal Contract Amendment in accordance with Section 17.5 (Contract Amendments).

SECTION 17.5. CONTRACT AMENDMENTS.
(A) Amendments Generally. Notwithstanding the provisions of Section 17.4 (Contract Administration) but without limiting any approval authority delegated to the Town Contract Representative pursuant to Section 17.6(B) (Town Contract Representative), no material change, alteration, revision or modification of the terms and conditions of this DesignBuild Contract shall be made except through a written amendment to this Design-Build Contract (a “Contract Amendment”), duly authorized, approved or ratified by the Town Council and duly authorized by the Design-Builder.
(B) Procedure. Contract Amendments shall be serially numbered, dated and signed by a Senior Supervisor for the Design-Builder and by the Town Contract Representative or an authorized signatory of the Town for the Town, as determined in accordance with Section

17.6(B) (Town Contract Representative). The Town and the Design-Builder each shall maintain a parallel, identical file of all Contract Amendments, separate and distinct from the Contract Administration Memoranda and all other documents relating to the administration and performance of this Design-Build Contract.

SECTION 17.6. CONTRACT REPRESENTATIVES.
(A) Design-Builder Contract Representative and Senior Supervisors. The Design-Builder shall appoint and inform the Town in writing from time to time of the identity of (1) the individual with the responsibility and power from time to time to administer this DesignBuild Contract and to bind the Design-Builder with respect to any Contract Administration Memorandum, Change Order and Contract Amendment (which may be the same or different 383
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individual with respect to the Preliminary Services and the Design-Build Period Work) (the “Design-Builder Contract Representative”), and (2) the corporate officials of the Design-Builder with senior supervisory responsibility for the Project and the performance of this Design-Build Contract (the “Senior Supervisors”). The Design-Builder shall promptly notify the Town in writing of the appointment of any successor Senior Supervisors. The Senior Supervisors shall cooperate with the Town in any reviews of the performance of the Project Manager and the Design-Builder Contract Representative which the Town may undertake from time to time, and shall give full consideration to any issues raised by the Town in conducting such performance reviews.
(B) Town Contract Representative. The Town shall appoint an individual or individuals to act as the “Town Contract Representative” for this Design-Build Contract. Such appointment shall be in writing and include a specific description of the extent of the Town Contract Representative’s power to administer this Design-Build Contract, including specific dollar limitations of his or her authority. The Design-Builder shall be entitled to a copy of any such written appointment. The Design-Builder understands and agrees that any delegation to the Town Contract Representative may provide only limited authority with respect to the implementation of this Design-Build Contract, which may or may not include the authority to bind the Town with respect to any Change Order, Work Change Directive or Contract Amendment. Within such limitations, the Design-Builder shall be entitled to rely on the written directions of any the Town Contract Representative. The Town Contract Representative shall have the right at any time to issue the Design-Builder a written request for information relating to this Design-Build Contract. Any written request designated as a “priority request” shall be responded to by the Design-Builder within three Business Days. (C) Town Approvals and Consents. When this Design-Build Contract requires any approval or consent by the Town to a Design-Builder submission, request or report, the approval or consent shall, within the limits of the authority of subsection (B) of this Section, be given by the Town Contract Representative in writing and such writing shall be conclusive evidence of such approval or consent, subject only to compliance by the Town with the Applicable Law that generally governs its affairs. Unless expressly stated otherwise in this Design-Build Contract, and except for requests, reports and submittals made by the DesignBuilder that do not, by their terms or the terms of this Design-Build Contract, require a response or action, if the Town does not find a request, report or submittal acceptable, it shall provide written response to the Design-Builder describing its objections and the reasons therefor within 30 days of the Town’s receipt thereof. If no response is received, the request, report or submittal shall be deemed rejected unless the Town’s approval or consent may not be unreasonably delayed by the express terms hereof, and the Design-Builder may resubmit the same, with or without modification. Requests, reports and submittals that do not require a response or other action by the Town pursuant to some specific term of this Design-Build Contract shall be deemed acceptable to the Town if the Town shall not have objected thereto within 30 days of the receipt thereof.

SECTION 17.7. PROPERTY RIGHTS.
(A) Protection from Infringement. The Design-Builder shall pay all royalties and license fees in connection with the Contract Obligations during the Term. Except as provided in subsection (C) of this Section, the Design-Builder shall indemnify, defend and hold harmless the Town Indemnities in accordance with and to the extent provided in Section 15.1 (Design-Builder’s Obligation to Indemnify) from and against all Loss-and-Expense arising out of or related to the infringement or unauthorized use of any patent, trademark, copyright or trade secret relating to, or for the Contract Obligations. The Design-Builder’s indemnity pursuant to this Section shall apply only when infringement occurs or is alleged to occur from the intended 384
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use for which the Deliverable Material, process or equipment was provided by the DesignBuilder pursuant to this Design-Build Contract. (B) Substitutes for Deliverable Material, Process or Equipment. Except as provided in subsection (C) of this Section, in the event the Design-Builder or the Town is enjoined from using any Deliverable Material, process or equipment, the Design-Builder, at its sole cost and expense, shall:
(1) Acquire the right to legally use such infringing Deliverable Material, process or equipment (or any affected Design-Build Work) under infringed patents or copyrights; or
(2) Modify or replace such Deliverable Material, process or equipment (or any affected Design-Build Work) with un-infringed Deliverable Material, process or equipment (or any affected Design-Build Work) equivalent in quality, performance, useful life and technical characteristics and development; provided, however, that any such modification or replacement shall be subject to the Town’s approval, which shall not be unreasonably withheld or delayed.
(C) Exceptions to Infringement Protection. Unless otherwise agreed to by the parties, the Design-Builder’s obligations under this Section shall not apply to:
(1) Infringement resulting from the Town-directed Change Orders and Work Change Directives issued under Section 6.9(C) (Changes Required by the Town) or Section 6.11 (Work Change Directives);
(2) Infringement resulting from unauthorized additions, changes or modifications to the Deliverable Material, process or equipment made or caused to be made by the Town subsequent to delivery by the Design-Builder; or (3) Any claimed infringement which is settled without the consent of the Design-Builder.

The Design-Builder shall promptly advise the Town as to whether any the Town-directed Change Order or Work Change Directive issued under Section 6.9(C) (Changes Required by the Town) or Section 6.11 (Work Change Directives) may result in any infringement or unauthorized use and, in the event of any failure by the Design-Builder to so advise the Town, the Design-Builder will indemnify the Town for any Loss-and-Expense resulting from any such infringement or unauthorized use.
(D) Pre-Existing Intellectual Property. The Town acknowledges and agrees that in the performance of Contract Obligations under this Design-Build Contract, the DesignBuilder may use proprietary algorithms, software, hardware, databases, other background technology, and other proprietary information that the Design-Builder developed or licensed from third parties prior to the Contract Date (“Pre-Existing Intellectual Property”). Without limiting the Town’s rights with respect to the Deliverable Material, the Design-Build Work or the Project, the Design-Builder will retain all right, title, and interest in such Pre-Existing Intellectual Property. However, the Town shall have the irrevocable, perpetual, and unrestricted right from and after the Contract Date to use (or permit use of) all Pre-Existing Intellectual Property incorporated in the Deliverable Material, the Design-Build Work or the Project, all oral information received by the Town in connection with the Design-Build Work, and all ideas or methods represented by Pre-Existing Intellectual Property incorporated in the Deliverable Material or the Project, in each case without additional compensation. The DesignBuilder hereby licenses such irrevocable, perpetual, and unrestricted rights to the Town. The 385
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Town’s use of such license rights for any purpose other than the Project shall be at its own risk, and the Design-Builder shall have no liability for or relating to any such use.

Notwithstanding any other provision of this Design-Build Contract, the Design-Builder shall retain all rights, title and interest (including all Intellectual Property rights) with respect to the following specialized equipment used in the performance of the Design-Build Work: [soil cement systems].
(E) Protection of Proprietary Rights of the Town. The Design-Builder agrees and covenants to protect any and all proprietary rights of the Town in any material provided to the Design-Builder. Such protection of proprietary rights by the Design-Builder shall include the insertion in any copy intended for publication of a copyright mark reserving all rights to the Town in any such material provided by the Town to the Design-Builder. Additionally, any materials provided to the Design-Builder by the Town shall not be released to any third party without the written consent of the Town and shall be returned intact to the Town upon completion or termination of this Design-Build Contract. The provisions of this subsection shall not apply to material in the public domain on the Contract Date or material that subsequently comes into the public domain by other than an unauthorized disclosure.

SECTION 17.8. AFFIRMATIVE ACTION REQUIREMENTS.
(A) Applicable Law. The Design-Builder shall comply at all times with the affirmative action requirements of and the anti-discrimination requirements of the Grant Requirements, including all applicable provisions identified in Appendix 12 (Certain Grant Requirements and Guidelines).
(B) Affirmative Action Statement. The Design-Builder shall actively solicit the employment of minority group members. The Design-Builder shall actively solicit bids for the subcontracting of goods or services from qualified minority businesses. The Design-Builder shall furnish evidence of the Design-Builder’s compliance with these requirements of minority employment and solicitation. The Design-Builder further agrees to consider the grant of subcontracts to said minority bidders on the basis of substantially equal proposals in the light most favorable to said minority businesses. As used in this Section, the term “minority business” means a business at least fifty-one percent of which is owned by minority group members. Minority group members include, but are not limited to, blacks, women, native Americans, Asians, Eskimos, Aleuts, and Hispanics. The Design-Builder and all subcontractors shall also comply with the anti-discrimination requirements of the Grant Requirements, including all applicable provisions identified in Appendix 12 (Certain Grant Requirements and Guidelines). The Design-Builder agrees to take all steps necessary to comply with all federal, state and Town laws and policies regarding non-discrimination and equal employment opportunities. The Design-Builder, and all of its subcontractors, shall not discriminate in any employment action because of race, religion, color, national origin or ancestry, sex, gender identity, sexual orientation, age, marital status, familial status or the presence of any sensory, mental, or physical handicap. In the event of non-compliance by the Design-Builder or its subcontractors with any of the non-discrimination provisions of this Contract, the Town, shall be deemed to have cause to terminate this Agreement, in whole or in part. The Design-Builder shall comply with all Federal and State laws, regulations and policies against discrimination.
(C) Subcontracts. The Design-Builder further agrees that the affirmative action statement in subsection (B) of this Section shall be incorporated in all Subcontracts with all labor organizations furnishing skilled, unskilled and union labor, or who may perform any such labor or services in connection with this Design-Build Contract. 386
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SECTION 17.9. GENERAL DUTY TO MITIGATE.
(A) Mitigation by the Design-Builder. In all cases where the Design-Builder is entitled to receive any relief from the Town or exercise any rights, including the right to receive any payments, costs, damages or extensions of time, whether on account of Uncontrollable Circumstance or otherwise, the Design-Builder shall use all reasonable efforts to mitigate such amount required to be paid by the Town to the Design-Builder under this Design-Build Contract, or the length of the extension of time. Upon request from the Town, the Design-Builder shall promptly submit a detailed description, supported by all such documentation as the Town may reasonably require, of the measures and steps taken by the Design-Builder to mitigate and meet its obligations under this Section. (B) Mitigation by the Town. In all cases where the Town is entitled to receive from the Design-Builder any compensation, costs or damages, but not in any other cases, the Town shall use all reasonable efforts to mitigate such amount required to be paid by the Design-Builder to the Town under this Design-Build Contract, provided that such obligation shall not require the Town to:
(1) Take any action which is contrary to the public interest, as determined by the Town in its discretion;
(2) Undertake any mitigation measures that might be available arising out of its status as a Governmental Body, but which measure would not normally be available to a private commercial party; or
(3) Alter the amount of liquidated damages it is entitled to receive hereunder.
the Town shall have no obligation to mitigate, implied or otherwise, except as set forth in this Section or as expressly provided in this Design-Build Contract. Upon request by the DesignBuilder, the Town shall promptly submit a detailed description, supported by all such documentation as the Design-Builder may reasonably require, of the measures and steps taken by the Town to mitigate and meet its obligations under this Section.

SECTION 17.10. ASSIGNMENT OF ANTI-TRUST CLAIMS.

In accordance with Section 7103.5 of the California Public Contract Code, in entering into this Design-Build Contract, the Design-Builder offers and agrees to assign to the Town all rights, title and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the California Business and Professions Code), arising from purchases of goods, services or materials pursuant to this Design-Build Contract. The assignment shall be made and become effective at the time the Town tenders final payment to the Design-Builder for the Design-Build Work, without further acknowledgement by the parties.

SECTION 17.11. ACTIONS OF TOWN IN ITS GOVERNMENTAL CAPACITY.

Nothing in this Design-Build Contract shall be interpreted as limiting the rights and obligations of the Town under Applicable Law in its governmental capacity (including police power actions to protect health, safety and welfare or to protect the environment), or as limiting the right of the Design-Builder to bring any action against the Town, not based on this Design-Build Contract, arising out of any act or omission of the Town in its governmental capacity.
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SECTION 17.12. ASSIGNMENT.
(A) By the Design-Builder. The Design-Builder shall not assign, transfer, convey, lease, encumber or otherwise dispose of this Design-Build Contract, its right to execute the same, or its right, title or interest in all or any part of this Design-Build Contract or any monies due hereunder whatsoever prior to their payment to the Design-Builder, whether legally or equitably, by power of attorney or otherwise, without the prior written consent of the Town.

Any such approval given in one instance shall not relieve the Design-Builder of its obligation to obtain the prior written approval of the Town to any further assignment. Any such assignment of this Design-Build Contract which is approved by the Town, shall require the assignee of the Design-Builder to assume the performance of and observe all obligations, representations and warranties of the Design-Builder under this Design-Build Contract which shall remain in full force and effect during this Design-Build Contract. The approval of any assignment, transfer or conveyance shall not operate to release the Design-Builder in any way from any of its obligations under this Design-Build Contract unless such approval specifically provides otherwise. In the event of any assignment or subletting without the prior written approval of the Town, the Town may, in addition to any other remedy provided herein, withhold any further payment of Contract Compensation.
(B) By the Town. The Town may not assign its rights or obligations under this Design-Build Contract without the prior written consent of the Design-Builder, which may be given or withheld in the Design-Builder’s reasonable discretion. The Town may, however, assign its rights and obligations under this Design-Build Contract, without the consent of the Design-Builder, to another Governmental Body if such assignee assumes, and is legally capable of discharging the duties and obligations of the Town hereunder.

SECTION 17.13. CONFIDENTIALITY.
(A) Confidential Nature of Information. The Design-Builder shall treat all confidential information obtained from the Town in the performance of this Design-Build Contract as confidential and proprietary to the Town to the extent permitted by law. “Confidential Information”, for purposes of this covenant, means any information and materials which is clearly identified or marked as being “confidential” or “proprietary” or otherwise marked in accordance with applicable federal law by the disclosing party. Confidential Information does not include information which: (1) was in the public domain at the time of a disclosing party’s communication thereof to the receiving party; (2) entered the public domain through no fault of the receiving party subsequent to the time of the disclosing party’s communication thereof to the receiving party; (3) was in the receiving party’s possession free of any obligation of confidence at the time of the disclosing party’s communication thereof to the receiving party, as evidenced in the receiving parties records; (4) was rightfully communicated by a third party to a receiving party free of any obligation of confidence subsequent to the time of the disclosing party’s communication thereof to the receiving party; (5) was developed by employees or agents of the receiving party independently of and without reference to any proprietary information or other information that the disclosing party has disclosed in confidence to the receiving party; (6) is approved for release by written authorization of the disclosing party; or (7) the receiving party reasonably believes on advice of legal counsel it is legally obligated to disclose by law, rule, regulation, court order, or other compulsory process of a court or other governmental body, provided, however, that in such case, the receiving party shall immediately notify the disclosing party of its intention to disclose (unless the receiving party reasonably believes based on the advice of legal counsel that providing such notice would violate applicable law, rule, regulation, court order, or other compulsory process of a court or other governmental body) so that the disclosing party can take such legal action as it deems necessary or appropriate to prevent such disclosure.
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(B) Limitation on Use and Disclosure. The Design-Builder shall not use any Confidential Information obtained as a consequence of the performance of the Contract Obligations for any purpose other than the performance of the Contract Obligations in accordance with this Design-Build Contract. The Design-Builder shall not disclose any information obtained from the Town or obtained as a consequence of the performance of the Contract Obligations to any person other than its own employees, agents or Subcontractors who have a need for the information for the performance of work under this Design-Build Contract, unless such disclosure is specifically approved in writing by the Town, which approval may be withheld in the sole and absolute discretion of the Town.

SECTION 17.14. LIMITED RECOURSE TO TOWN.

The Design-Builder shall have recourse to the general fund or general credit of the Town for the payment of any unpaid amount due the Design-Builder hereunder, whether on account of the Design-Build Price or for any Loss-and-Expense or payment or claim of any nature arising from the performance or non-performance of the Town’s obligations hereunder, for completed Design-Build Work for which the Design-Builder has not previously been paid.

Except as set forth in the preceding sentence, no recourse shall be had to the general fund or general credit of the Town for the payment of any other amount due the Design-Builder hereunder, whether on account of the Design-Build Price or for any Loss-and-Expense or payment or claim of any nature arising from the performance or non-performance of the Town’s obligations hereunder. The sole recourse of the Design-Builder for the amounts set forth in the preceding sentence shall be to the proceeds of the Grants. All such Grant proceeds shall be held for the uses permitted and required by the Grant documentation and by Applicable Law, and no such amounts shall constitute property of the Design-Builder. The Town shall hold the proceeds of the Grants in a segregated account and shall not commingle such amounts with other general fund moneys.

SECTION 17.15. BINDING EFFECT.

This Design-Build Contract shall inure to the benefit of and shall be binding upon the Town and the Design-Builder and any assignee acquiring an interest hereunder consistent with Section 17.12 (Assignment).

SECTION 17.16. AMENDMENT AND WAIVER.
(A) Contract Amendments. This Design-Build Contract may not be amended except by a written agreement signed by the parties in accordance with Section 17.5 (Contract Amendments).
(B) Waiver. Any of the terms, covenants, and conditions of this Design-Build Contract may be waived at any time by the party entitled to the benefit of such term, covenant or condition if such waiver is in writing and executed by the party against whom such waiver is asserted.

SECTION 17.17. NOTICES.
(A) Procedure. All notices, consents or approvals or written communications (unless otherwise provided in the communication plan required to be developed pursuant to Appendix 2 (Preliminary Services)) given pursuant to the terms of this Design-Build Contract shall be:
(1) In writing and delivered in person;
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(2) Transmitted by certified mail, return, receipt requested, postage prepaid or by overnight courier utilizing the services of a nationally-recognized overnight courier service with signed verification of delivery; or
(3) Given by email transmission, if a signed original of the emailed letter or other communication is deposited in the United States Mail within two days after transmission.

Notices shall be deemed given only when actually received at the address first given below with respect to each party; provided, however, that email transmissions shall be deemed given only when the signed original of the emailed letter or other communication is received at such address. Either party may, by like notice, designate further or different addresses to which subsequent notices shall be sent.
(B) Town Notice Address. Notices required to be given to the Town shall be addressed as follows:

Town of Paradise
5555 Skyway
Paradise, California 95969
Attn: Public Works Director, Marc Mattox
Email: [email protected]
Telephone: (530) 872-6291
with a copy to:

Town of Paradise
5555 Skyway
Paradise, California 95969
Attn: Public Works, Engineering Department, Colin
Nelson
Email: [email protected]
Telephone: (530) 872-6291
with a copy to:

Scott E. Huber, Esq.

Town Attorney
Town of Paradise
Cole Huber LLP
2281 Lava Ridge Court #300
Roseville, CA 95661
Email: [email protected]
Telephone: (916) 780-9009
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(C) Design-Builder Notice Address. Notices required to be given to the Design-Builder shall be addressed as follows:

Mountain Cascade, Inc.
555 Exchange Court
Livermore, California 94550
Attn: Randy Buckman
Email: [email protected]
Telephone: (925) 570-8413
With a copy to:

Mountain Cascade, Inc.
555 Exchange Court
Livermore, California 94550
Attn: Roger Williamson
Email: [email protected]
Telephone: (925) 525-2794
and
Mountain Cascade, Inc.
555 Exchange Court
Livermore, California 94550
Attn: Diana Fuller
Telephone: (925) 373-8370
SECTION 17.18. OTHER NOTICES.
(A) Notice of Litigation. In the event the Design-Builder or the Town receives notice of or undertakes the defense or the prosecution of any Legal Proceedings in connection with the Project, the party receiving such notice or undertaking such defense or prosecution shall give the other party timely notice of such proceedings and shall inform the other party in advance of all hearings regarding such proceedings. For purposes of this Section only, “timely notice” shall be deemed given if the receiving party has a reasonable opportunity to provide objections or comments or to proffer to assume the defense or prosecution of the matter in question, given the deadlines for response established by the relevant rules of procedure. (B) Notice of Third Party Claim. In the event the Town receives any notice, demand, letter or other document concerning any claim made by one or more third parties (including claims for loss of or physical damage to property or assets), or any claim for, or in respect of, the death, personal injury, disease or illness of any person, including the Town, relating to this Design-Build Contract, the Town shall give the Design-Builder timely notice of such in satisfaction of the requirement of Section 9201(b) of the California Public Contract Code. The reasonable costs incurred by the Town in providing such notification to the DesignBuilder shall be reimbursed by the Design-Builder to the Town.

SECTION 17.19. FURTHER ASSURANCES.

The Town and Design-Builder each agree to execute and deliver such further instruments and to perform any acts that may be necessary or reasonably requested in order to give full effect to this Design-Build Contract. The Town and the Design-Builder, in order to carry out this Design-Build Contract, each shall use all commercially reasonable efforts to 391
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provide such information, execute such further instruments and documents and take such actions as may be reasonably requested by the other and not inconsistent with the provisions of this Design-Build Contract and not involving the assumption of obligations or liabilities different from or in excess of or in addition to those expressly provided for herein.

SECTION 17.20. RIGHTS OF GRANTING AGENCIES AND FEDERAL
AGENCIES.

The parties acknowledge and agree that the Town intends to utilize Grants for the entirety of its financing structure. The Design-Builder hereby acknowledges that the utilization of the Grants is predicated on complying with all applicable requirements of the Grants, including, as applicable, complying with all applicable provisions identified in Appendix 12 (Certain Grant Requirements and Guidelines). In furtherance of such compliance, the Granting Agencies and the Federal Agencies are each made express third-party beneficiaries of this Design-Build Contract with the power to enforce any remedy, claim, liability, reimbursement or cause of action of the Town against the Design-Builder under this Design-Build Contract not involving or subject to the discretion of the Town until the date all amounts payable under the applicable Grant have been satisfied or paid in full. In furtherance of such compliance, the Granting Agencies and the Federal Agencies have been granted access to the Books and Records pursuant to Section 9.10(B) (Town Rights to Audit and Examine Payments).

SECTION 17.21. ELECTRONIC SIGNATURES.

Any Party may execute this Design-Build Contract using an “electronic signature,” as that term is defined in California Civil Code Section 1633.2, or a “digital signature,” as defined by California Government Code Section 16.5. An electronic or digital signature will have the same force and effect as original ink signatures. [Signature Page Follows]
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TRANSACTION FORMS
TO THE

DESIGN-BUILD CONTRACT

FOR THE

TOWN OF PARADISE SEWER PROJECT
between

THE TOWN OF PARADISE
and
MOUNTAIN CASCADE, INC.

Dated
March 13, 2024
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TRANSACTION FORM A

FORM OF PERFORMANCE BOND
(EARLY WORK PACKAGE AMENDMENT)
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FORM OF PERFORMANCE BOND (EARLY WORK PACKAGE AMENDMENT) KNOW ALL PERSONS BY THESE PRESENTS:

That we, [____________________], hereinafter referred to as “Design-Builder”, as principal, and ___________________________________ as surety, are held and firmly bound unto the Town of Paradise, a municipal corporation organized and existing and by virtue of the laws of the State of California (the “Owner”), in the sum of _____________________________ dollars ($______________) lawful money of the United States of America, for the payment of which sum, well and truly to be made, we bind ourselves, heirs, executors, administrators, successors, and assigns jointly and severally, firmly by these presents.

The condition of the foregoing obligation is such that, WHEREAS, the Design-Builder has been awarded and entered into the annexed DesignBuild Contract with the Owner for the Town of Paradise Sewer Project, dated as of ______________, 20[__], as amended from time to time (the “Design-Build Contract”), WHEREAS, the Design-Builder and the Owner have entered into an Early Work Package Amendment dated __________ (“Early Work Package Amendment [1]”), with an Early Work Package Price of __________ ($__________);
WHEREAS, one of the conditions of the Design-Build Contract is that the DesignBuilder provide this bond for Early Work Package Amendment [1]; and WHEREAS, for purposes of this bond, the term “Work” refers to all of the DesignBuilder’s obligations under the Design-Build Contract to perform Early Work Package Amendment [1];
NOW, THEREFORE, if the Design-Builder, its heirs, executors, administrators, successors, and assigns shall well and truly do and perform all of the covenants and obligations of the Design-Build Contract and any alteration thereof made as therein provided, on its part to be done and performed at the times and in the manner specified therein, then this obligation shall be null and void, otherwise it shall be and remain in full force and effect inclusive of any period of any guarantees or warranties required under the Design-Build Contract.

Any alterations in the work to be done or the material to be furnished, which may be made pursuant to the terms of the Design-Build Contract, shall not in any way release either the Design-Builder or the surety, nor shall any extensions of time granted under the provisions of the Design-Build Contract release either the Design-Builder or the surety, and notice of such alterations or extensions of the Design-Build Contract is hereby waived by the surety.

The surety hereby waives the provisions of California Civil Code Sections 2819 (regarding exoneration of sureties in certain circumstances), 2845 (regarding certain limitations on remedies against sureties) and 2849 (regarding a surety’s rights as to other security held by the creditor).

In the event suit is brought upon this bond by the Owner and judgment is recovered, the surety shall pay all costs incurred by the Owner in such suit, including, but not limited to, reasonable attorneys’ fees and administrative and consultant costs to be fixed by the court.

Any proceeding, legal or equitable, under this bond shall be instituted in State courts located in Santa Clara County, California or in federal courts located in the Northern District of California.
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The address or addresses at which the principal and surety may be served with notices, papers and other documents under the California Bond and Undertaking Law (California Code of Civil Procedure Section 995.010 et seq.) is the following: __________________________________. 400
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WITNESS our hands this ________ day of _______________________, 20__. (Seal) Design-Builder
By_____________________________
_____________________________
Title
(Surety’s Corporate Seal) Surety
By______________________________
_____________________________
Title
_____________________________
Address of Surety
_____________________________
_____________________________
Notice: No substitution or revision to this bond form will be accepted. 401
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ACKNOWLEDGMENT BY NOTARY PUBLIC
[Cal. Civ. Code, § 1189]
State of California )
County of )
On _________________ before me, ____________________________________, a notary public, personally appeared _________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature _______________________________ (Seal)
[Any acknowledgement taken in another state shall be sufficient if it is taken in accordance with the laws of the state where the acknowledgement is made.] (Attach proof of authority of attorney in fact of surety.) 402
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TRANSACTION FORM B

FORM OF PAYMENT BOND
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FORM OF PAYMENT BOND FOR MATERIALS AND LABOR
KNOW ALL PERSONS BY THESE PRESENTS:

That we, [____________________], hereinafter referred to as “Design-Builder”, as principal, and _______________________________________ as surety, are held and firmly bound unto the Town of Paradise, a municipal corporation organized and existing and by virtue of the laws of the State of California (the “Owner”), in the sum of ____________________ dollars ($_____________) lawful money of United States of America, for the payment of which sum, well and truly to be made, we bind ourselves, heirs, executors, administrators, successors, and assigns jointly and severally, firmly by these presents.

The condition of the foregoing obligation is such that, WHEREAS, the Design-Builder has been awarded and entered into the annexed DesignBuild Contract with the Owner for the Town of Paradise Sewer Project, dated as of ______________, 20[__], as amended from time to time (the “Design-Build Contract”), whereby the Design-Builder is required by the Owner to give this bond on the GMP Amendment Date (as defined in the Design-Build Contract) pursuant to said Design-Build Contract; NOW, THEREFORE, if Design-Builder, or its subcontractors, fails to pay any of the persons referred to in Section 9100 of the Civil Code of the State of California for any materials, provisions, provender, equipment, or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld and paid over to the Employment Development Department from the wages of employees of the Design-Builder and its subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, the surety will pay for the same, in an amount not exceeding the sum specified above, and also, in case suit is brought upon this bond, reasonable attorneys’ fees, to be fixed by the court. This bond shall inure to the benefit of any and all persons entitled to file claims under Section 9100 of the Civil Code of the State of California so as to give a right of action to them or their assigns in any suit brought upon this bond.

Any alterations in the work to be done, or the materials to be furnished, which may be made pursuant to the terms of the Design-Build Contract, shall not in any way release either the Design-Builder or the surety, nor shall any extensions of time granted under the provisions of the Design-Build Contract release either Design-Builder or the surety, and notice of such alterations or extensions of the Design-Build Contract is hereby waived by the surety.

The surety hereby waives the provisions of California Civil Code Sections 2819 (regarding exoneration of sureties in certain circumstances), 2845 (regarding certain limitations on remedies against sureties) and 2849 (regarding a surety’s rights as to other security held by the creditor).

The address or addresses at which the Design-Builder and surety may be served with notices, papers and other documents under the California Bond and Undertaking Law (California Code of Civil Procedure Section 995.010 et seq.) is the following:
__________________________________.
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WITNESS our hands this ________ day of _______________________, 20__. (Seal) Design-Builder
By_____________________________
_____________________________
Title
(Surety’s Corporate Seal) Surety
By______________________________
_____________________________
Title
_____________________________
Address of Surety
_____________________________
_____________________________
Notice: No substitution or revision to this bond form will be accepted. 407
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ACKNOWLEDGMENT BY NOTARY PUBLIC
[Cal. Civ. Code, § 1189]
State of California )
County of )
On _________________ before me, ____________________________________, a notary public, personally appeared _________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature _______________________________ (Seal)
[Any acknowledgement taken in another state shall be sufficient if it is taken in accordance with the laws of the state where the acknowledgement is made.] (Attach proof of authority of attorney in fact of surety.) 408
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TRANSACTION FORM C

FORM OF PERFORMANCE BOND
(GMP AMENDMENT)
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FORM OF PERFORMANCE BOND (GMP AMENDMENT)
KNOW ALL PERSONS BY THESE PRESENTS:

That we, [____________________], hereinafter referred to as “Design-Builder”, as principal, and ___________________________________ as surety, are held and firmly bound unto the Town of Paradise, a municipal corporation organized and existing and by virtue of the laws of the State of California (the “Owner”), in the sum of _____________________________ dollars ($______________) lawful money of the United States of America, for the payment of which sum, well and truly to be made, we bind ourselves, heirs, executors, administrators, successors, and assigns jointly and severally, firmly by these presents.

The condition of the foregoing obligation is such that, WHEREAS, the Design-Builder has been awarded and entered into the annexed DesignBuild Contract with the Owner for the Town of Paradise Sewer Project, dated as of ______________, 20[__], as amended from time to time (the “Design-Build Contract”), WHEREAS, the Design-Builder and the Owner have entered into a GMP Amendment dated __________ (“GMP Amendment”), with a Base Guaranteed Maximum Price of __________ ($__________);
WHEREAS, one of the conditions of the Design-Build Contract is that the DesignBuilder provide this bond for the Design-Build Work; and WHEREAS, for purposes of this bond, the term “Work” refers to all of the DesignBuilder’s obligations under the Design-Build Contract to perform Design-Build Work; NOW, THEREFORE, if the Design-Builder, its heirs, executors, administrators, successors, and assigns shall well and truly do and perform all of the covenants and obligations of the Design-Build Contract and any alteration thereof made as therein provided, on its part to be done and performed at the times and in the manner specified therein, then this obligation shall be null and void, otherwise it shall be and remain in full force and effect inclusive of any period of any guarantees or warranties required under the Design-Build Contract.

Any alterations in the work to be done or the material to be furnished, which may be made pursuant to the terms of the Design-Build Contract, shall not in any way release either the Design-Builder or the surety, nor shall any extensions of time granted under the provisions of the Design-Build Contract release either the Design-Builder or the surety, and notice of such alterations or extensions of the Design-Build Contract is hereby waived by the surety.

The surety hereby waives the provisions of California Civil Code Sections 2819 (regarding exoneration of sureties in certain circumstances), 2845 (regarding certain limitations on remedies against sureties) and 2849 (regarding a surety’s rights as to other security held by the creditor).

In the event suit is brought upon this bond by the Owner and judgment is recovered, the surety shall pay all costs incurred by the Owner in such suit, including, but not limited to, reasonable attorneys’ fees and administrative and consultant costs to be fixed by the court.

Any proceeding, legal or equitable, under this bond shall be instituted in State courts located in Santa Clara County, California or in federal courts located in the Northern District of California.
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The address or addresses at which the principal and surety may be served with notices, papers and other documents under the California Bond and Undertaking Law (California Code of Civil Procedure Section 995.010 et seq.) is the following: __________________________________. 413
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WITNESS our hands this ________ day of _______________________, 20__. (Seal) Design-Builder
By_____________________________
_____________________________
Title
(Surety’s Corporate Seal) Surety
By______________________________
_____________________________
Title
_____________________________
Address of Surety
_____________________________
_____________________________
Notice: No substitution or revision to this bond form will be accepted. 414
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ACKNOWLEDGMENT BY NOTARY PUBLIC
[Cal. Civ. Code, § 1189]
State of California )
County of )
On _________________ before me, ____________________________________, a notary public, personally appeared _________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature _______________________________ (Seal)
[Any acknowledgement taken in another state shall be sufficient if it is taken in accordance with the laws of the state where the acknowledgement is made.] (Attach proof of authority of attorney in fact of surety.) 415
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EXECUTION COPY
3840090.12 047018 CTR

APPENDICES
TO THE

DESIGN-BUILD CONTRACT

FOR THE

TOWN OF PARADISE SEWER PROJECT
between

THE TOWN OF PARADISE
and
MOUNTAIN CASCADE, INC.

Dated as of
March 13, 2024
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TABLE OF CONTENTS
Page
APPENDIX 1 PROJECT AND SITE INFORMATION.............................................................. 1-1

1.1. PURPOSE ..................................................................................................... 1-1

1.2. PROJECT SITE DESCRIPTION ...................................................................... 1-1

1.3. REFERENCE DOCUMENTS .......................................................................... 1-1 ATTACHMENT 1A – POTENTIAL PROJECT ALIGNMENTS
APPENDIX 2 PRELIMINARY SERVICES ............................................................................. 2-1

2.1. GENERAL ..................................................................................................... 2-1

2.2. SCOPE OF PHASE 1A BASE PRELIMINARY SERVICES TASKS ...................... 2-1

2.3. PHASE 1A PRELIMINARY SERVICES SCHEDULE ....................................... 2-18

2.4. PHASE 1A PRELIMINARY SERVICES COMPENSATION ................................ 2-19 ATTACHMENT 2A – PLANNED SURVEY EXTENTS
ATTACHMENT 2B - PRELIMINARY SERVICES SCHEDULE
ATTACHMENT 2B-1 – PHASE 1A PRELIMINARY SERVICES SCHEDULE ATTACHMENT 2B-2 – FORM OF SUBSEQUENT PRELIMINARY

SERVICES PHASE PRELIMINARY SERVICES SCHEDULE
ATTACHMENT 2C – PRELIMINARY SERVICES NOT-TO-EXCEED PRICING ATTACHMENT 2C-1 – PHASE 1A PRELIMINARY SERVICES NOT-TOEXCEED PRICING ATTACHMENT 2C-2 – FORM OF SUBSEQUENT PRELIMINARY

SERVICES PHASE PRELIMINARY SERVICES NOT-TO-EXCEED

PRICING
ATTACHMENT 2D – PRELIMINARY SERVICES BILLING RATES
ATTACHMENT 2D-1 – PHASE 1A PRELIMINARY SERVICES BILLING RATES
ATTACHMENT 2D-2 – FORM OF SUBSEQUENT PRELIMINARY

SERVICES PHASE PRELIMINARY SERVICES BILLING RATES
APPENDIX 3 GOVERNMENTAL AND NON-GOVERNMENTAL APPROVALS ......................... 3-1

3.1. PURPOSE ..................................................................................................... 3-1

3.2. GOVERNMENT AND NON-GOVERNMENTAL APPROVALS ............................. 3-1 APPENDIX 4 TECHNICAL STANDARDS AND BASELINE DESIGN DOCUMENTS ................. 4-1

4.1. TECHNICAL STANDARDS ............................................................................. 4-1

4.2. BASELINE DESIGN DOCUMENTS ................................................................. 4-1 APPENDIX 5 GENERAL DESIGN-BUILD WORK REQUIREMENTS ...................................... 5-1

5.1. PURPOSE ..................................................................................................... 5-1

5.2. MANAGEMENT AND COORDINATION ........................................................... 5-1

5.3. DESIGN-BUILD PERIOD WORK SCHEDULE ................................................. 5-1

5.4. CONSTRUCTION MEETINGS AND REPORTS ................................................. 5-4

5.5. CONSTRUCTION WORK GENERALLY ........................................................... 5-8

5.6. COORDINATION OF CONSTRUCTION WORK AND OPERATIONS ................. 5-10

5.7. CONSTRUCTION SAFETY AND SECURITY .................................................. 5-10

5.8. OPERATIONS AND MAINTENANCE MANUAL .............................................. 5-12

5.9. SERVICE MANUALS ................................................................................... 5-13

5.10. ENVIRONMENTAL REVIEW AND PROTECTION ........................................... 5-15 APPENDIX 6 QUALITY ASSURANCE AND QUALITY CONTROL REQUIREMENTS ............... 6-1

6.1. PURPOSE ..................................................................................................... 6-1 419
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6.2. TOWN’S QUALITY OBJECTIVES ................................................................... 6-1

6.3. ROLES AND RESPONSIBILITIES ................................................................... 6-2

6.4. QUALITY MANAGEMENT PLAN UPDATE AND IMPLEMENTATION ................. 6-2

6.5. DESIGN QUALITY CONTROL AND QUALITY ASSURANCE
REQUIREMENTS .......................................................................................... 6-3

6.6. CONSTRUCTION QUALITY CONTROL REQUIREMENTS ................................ 6-4

6.7. INSPECTION OF DESIGN-BUILD WORK ....................................................... 6-6

6.8. TIME OF INSPECTION AND TESTS ............................................................... 6-7

6.9. MATERIALS SAMPLING AND TESTING ......................................................... 6-7

6.10. MATERIALS TESTING SERVICES .................................................................. 6-8

6.11. INSTALLATION ............................................................................................. 6-9

6.12. PERSONNEL QUALIFICATIONS ................................................................... 6-10 APPENDIX 7 DESIGN-BUILD WORK REVIEW PROCEDURES ............................................ 7-1

7.1. OVERVIEW ................................................................................................... 7-1

7.2. DOCUMENTS TO BE SUBMITTED ................................................................ 7-1

7.3. TOWN REVIEW DURING GOVERNMENTAL AND NON-GOVERNMENTAL APPROVAL PROCESS ................................................................................... 7-3

7.4. TOWN DOCUMENT REVIEW ......................................................................... 7-3

7.5. TOWN CONSTRUCTION INSPECTION ........................................................... 7-5

7.6. FINAL SURVEY AND RECORD DRAWINGS ................................................... 7-6 APPENDIX 8 DESIGN-BUILD PRICE .................................................................................. 8-1

8.1. PURPOSE ..................................................................................................... 8-1

8.2. DESIGN-BUILD PRICE .................................................................................. 8-1

8.3. DESIGN-BUILD PERIOD COSTS ................................................................... 8-3

8.4. UNALLOWABLE COSTS ................................................................................ 8-6

8.5. GENERAL CONDITIONS FEE ........................................................................ 8-7

8.6. DESIGN-BUILDER FEE ................................................................................ 8-8

8.7. GUARANTEED MAXIMUM PRICE .................................................................. 8-8

8.8. TOWN ALLOWANCE ..................................................................................... 8-9

8.9. DESIGN-BUILDER CONTINGENCY ............................................................... 8-9

8.10. SPECIFIED PROJECT RISK CONTINGENCY .................................................. 8-9

8.11. SHARED SAVINGS AMOUNT ...................................................................... 8-10 ATTACHMENT 8A – DESCRIPTION OF GENERAL CONDITIONS COSTS ATTACHMENT 8B – BILLING RATES FOR DESIGN-BUILD PERIOD WORK

PROFESSIONAL SERVICES PERSONNEL
ATTACHMENT 8C – BILLING RATES FOR SELF-PERFORMED CONSTRUCTION WORK
ATTACHMENT 8D – ANTICIPATED DESIGN-BUILD PERIOD WORK COST

SCHEDULE AND DESIGN-BUILDER CONTINGENCY
APPENDIX 9 SUBSTANTIAL COMPLETION ........................................................................ 9-1

9.1. PURPOSE ..................................................................................................... 9-1

9.2. RELATIONSHIP TO BASELINE DESIGN DOCUMENTS ................................... 9-1

9.3. SUBSTANTIAL COMPLETION PROCEDURES ................................................ 9-1 APPENDIX 10 INSURANCE REQUIREMENTS .................................................................... 10-1

10.1. GENERAL REQUIREMENTS ........................................................................ 10-1

10.2. EVIDENCE OF INSURANCE ........................................................................ 10-2

10.3. CERTIFICATE REQUIREMENTS SPECIFIC REPRESENTATIONS .................. 10-2

10.4. SUBCONTRACTORS ................................................................................... 10-3

10.5. CERTIFICATE REQUIREMENTS FOR COVERAGES AND LIMITS ................. 10-3 420
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APPENDIX 11 KEY PERSONNEL AND APPROVED SUBCONTRACTORS ............................. 11-1

11.1. PURPOSE ................................................................................................... 11-1

11.2. KEY PERSONNEL ....................................................................................... 11-1

11.3. APPROVED SUBCONTRACTORS ................................................................. 11-1

11.4. SUBCONTRACTING PLAN ........................................................................... 11-2 ATTACHMENT 11A – SUBCONTRACTING PLAN
APPENDIX 12 CERTAIN STATE AND FEDERAL GRANT REQUIREMENTS AND GUIDELINES .............................................................................................. 12-1 ATTACHMENT 12A – DAVIS BACON ACT WAGE DETERMINATIONS
APPENDIX 13 CERTAIN PROVISIONS OF THE CALIFORNIA PUBLIC CONTRACT CODE .... 13-1 421
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APPENDIX 1

PROJECT AND SITE INFORMATION
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APPENDIX 1

PROJECT AND SITE INFORMATION

1.1. PURPOSE
The purpose of this Appendix is to describe the Project and Project site, and to list Reference Documents for the Project.

1.2. PROJECT SITE DESCRIPTION
The Project will establish a municipal sewer system for the Town, as well as connection to the City of Chico’s Water Pollution Control Plant (WPCP) for regional treatment of the Town’s wastewater. The Project includes three distinct components to serve approximately 1,400 parcels within the Sewer Service Area (SSA): a core sewer collection system in the Town of Paradise (Core Collection System), an approximately 18-mile sewer export pipeline to convey wastewater to the City of Chico’s WPCP (Export Pipeline), and a sewer pipeline connection to the City of Chico’s WPCP (WPCP Connection).

An overview of the Project location is shown on Attachment 1A as copied from the Final PEIR – Executive Summary, Figure ES-1. Proposed Project Location.

The following key components are associated with the Core Collection System, Export Pipeline and WPCP Connection.
 Core Collection System – approximately 157,000 feet of 6- to 8-inch-diameter gravity sewers, approximately 29,000 feet of 2- to 4-inch-diameter force mains, and up to 28 pump stations.
 Export Pipeline – approximately 18-miles of 8- to 12-inch sewer pipeline dropping approximately 1,300 feet in elevation from the Town to the Chico WPCP.  WPCP Connection – a flow control and metering structure and necessary modifications to the City of Chico’s WPCP to allow wastewater flow into the WPCP.

1.3. REFERENCE DOCUMENTS
The following Reference Documents are being made available to the Design-Builder at the start of Preliminary Services. The Design-Builder is responsible for reviewing and updating the list during The Preliminary Services Period with additional documents obtained or developed by the Design-Builder. The Town may also update the Reference Document list from time to time with new information via amendments to this Design-Build Contract.

Table A1-1. Reference Documents
Studies, Plans, Reports, and Legal Documents
No. Document name Document type

1. 2020 HDR Phase 1a Executive Summary Technical Report

2. 2022 HDR Technical Memo 8 Export Pipeline Analysis Technical Report 423
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Table A1-1. Reference Documents

3. 2022 HDR Technical Memo 8 Export Pipeline Analysis Technical Report

4. 2022 HDR Technical Memo 9 EIR Construction Analysis Technical Report

5. 2022 HDR Technical Memo 10 Analysis of Extended
Collection System Technical Report

6. 2022 HDR Technical Memo 11 Environmental Permitting
Strategy Technical Report

7. Final PEIR Documents:
 Final PEIR Main Document
 Final PEIR Addendum
 Appendix A: NOP Scoping Report
 Appendix B: Town of Paradise 1994 General Plan
Resolution and Amendments
 Appendix C: Regulatory Framework
 Appendix D: Emissions Modeling
 Appendix E: Vegetation Community Descriptions and
Special-Status Species Accounts
 Appendix F: Swainson’s Hawk Survey and Elderberry
Shrub Mapping Report
 Appendix G: Tribal Consultation
 Appendix H: Pump Station Energy Consumption
Calculation
 Appendix I: Public Comments and Responses on
Draft PEIR
 Final PEIR Notice of Determination
Environmental Report

8. 2023 Inter-Municipal Agreement, City of Chico Wastewater Treatment Services to the Town of Paradise Legal Document

9. 2023 Board Approval/LAFCO Resolution Authorizing
Proceedings
Record drawings and work orders may be included in the Reference Documents as updated by the Town or Design-Builder in advance of or during Preliminary Services Period services. 424
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ATTACHMENT 1A

POTENTIAL PROJECT ALIGNMENTS
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ATTACHMENT 1A

POTENTIAL PROJECT ALIGNMENTS
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APPENDIX 2

PRELIMINARY SERVICES
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APPENDIX 2

PRELIMINARY SERVICES

2.1. GENERAL
The Preliminary Services are intended to be delivered in multiple phases: the Phase 1a Preliminary Services and any Subsequent Preliminary Services Phases. The Town intends to expand the scope of the Preliminary Services set forth in this Appendix 2 at any time, in its discretion, beyond those services included in the Phase 1a Preliminary Services based, in part, on the recommendations of the Design-Builder, to be delivered in additional phases of the Preliminary Services as Subsequent Preliminary Services Phases. Each Subsequent Preliminary Services Phase shall be defined sequentially as Phase 1b, Phase 1c, Phase 1d, etc. as proposed in the applicable Subsequent Preliminary Services Phase Preliminary Services Submittal and, if agreed to by the parties, incorporated into this Appendix 2 by the applicable Subsequent Preliminary Services Phase Preliminary Services Amendment.

This Appendix 2 initially sets forth the scope of the Phase 1a Base Preliminary Services, the not-to-exceed price for conducting such scope, as well as all inclusive billing rates for the Phase 1a Preliminary Services and information on invoicing the Phase 1a Preliminary Services.

This Appendix 2 is intended to be amended by Subsequent Preliminary Services Phase Preliminary Services Amendment to set forth the scope of any Subsequent Preliminary Services Phase Preliminary Services, the not-to-exceed price for conducting such scope, as well as all inclusive billing rates for such Subsequent Preliminary Services Phase Preliminary Services, and information on invoicing such Subsequent Preliminary Services Phase Preliminary Services.

2.2. SCOPE OF PHASE 1A BASE PRELIMINARY SERVICES TASKS
The scope of the Phase 1a Base Preliminary Services shall include the following tasks:
• Task 1 - Project Management
• Task 2 - Reference Document Review and Validation
• Task 3 - Field Investigation Plan
• Task 4 - Hydraulic Model Development and Analysis
• Task 5 - Basis of Design Report
• Task 6 - Funding Support
• Task 7 - Permitting Support
• Task 8 - Stakeholder and Public Outreach Support
• Task 9 – Baseline Design and Construction Phasing Plan and Schedule • Task 10 - Cost Model
• Task 11 – Phase 1a Additional Preliminary Services
Required Deliverable Material (the “Deliverables”) for each Phase 1a Base Preliminary Services Task is identified in this Appendix 2. All Deliverables shall be reviewed with the Town. The Design-Builder shall promptly correct deficiencies and shall make modifications to conform to Project requirements and achieve acceptability to the Town. Draft deliverables shall be provided to the Town in the format agreed to by the Town and documented in the “Deliverables” sections below. [Note: Formats for deliverables shall be discussed and agreed to during Phase 1a Preliminary Services.]
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Specific tasks and Tasks for the scope of Phase 1a Base Preliminary Services are described below.

2.2.1 TASK 1 - PROJECT MANAGEMENT
Design-Builder shall provide all necessary project management and coordination throughout the Phase 1a Preliminary Services Period. Project Management shall include the following subtasks.

2.2.1.1 SUBTASK 1.1 - PROJECT MANAGEMENT AND ADMINISTRATION Project Management Documents. As part of Subtask 1.1, the Design-Builder shall prepare and submit drafts of the following documents for review and concurrence by the Town, and final versions of each that address/incorporate Town feedback from review of the draft versions. The Design-Builder shall also implement the activities described by the documents, make the Project team familiar with their contents, and keep the documents up to date.  Project Management Plan (PMP). The PMP shall communicate basic Project requirements and approach to the Project team, including subconsultants.  Preliminary Services Health and Safety Plan (PSHSP). The PSHSP shall describe the Design-Builder’s approach and Project team requirements and procedures to manage safety practices throughout all Preliminary Services and comply with all applicable Town procedures and local, state and federal regulations. Preliminary Services activities include, but are not limited to site visits, field investigations, in-person meeting attendance, and applicable Town procedures and local, state and federal regulations.

The PSHSP shall incorporate Town-specific health and safety requirements.  Preliminary Services Quality Management Plan (PSQMP). The PSQMP shall identify a plan to deliver quality in all Preliminary Services deliverables that are complete and accurate in accordance with this Design-Build Contract and the scope of the Phase 1a Base Preliminary Services as well as the Subsequent Preliminary Services Phase Base Preliminary Services. The plan shall include descriptions of each team member’s role in quality control and/or quality assurance, procedures for adequate collection of data prior to design, checking of work, verification that checks were complete, corrective action, and document control.
 Document Management Plan (DMP). The DMP shall describe the Design-Builder’s approach and Project team requirements and procedures to manage all documents generated and used in the execution of the Project. This plan shall describe the tools to be used for collaboration, communication and submittal of documents from the DesignBuilder to the Town and feedback from the Town to the Design-Builder. The plan shall include protocols and naming conventions required by the Town to provide for proper and adequate documentation of technical data during Phase 1a and provide placeholders for use during the Subsequent Preliminary Services Phases and DesignBuild Period Work phases as well as for the life of the constructed facilities. The plan should address accommodating grant requirements.
 Phase 1a Preliminary Services Schedule. The Phase 1a Preliminary Services Schedule shall contain at a minimum the following components:
 Activities for all Tasks and Subtasks necessary to complete the scope of the Phase 1a Preliminary Services including, as applicable, durations for preparation of deliverables and Town review periods.
 Start and finish dates for each activity.
 Major milestones including all deliverable and key meeting dates. 429
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 Critical Path analysis.

Project Coordination and Communication. As part of Subtask 1.1, include general coordination and communication with the Design-Builder’s Project team and with the Town and its Owner Representative regarding issues as they arise, including but not limited to scheduling and progress of Project activities.

Risk Management. As part of Subtask 1.1, include overall Project risk management, incorporating all Project risks that become evident as the Project development progresses. An initial Program and Project Risk Register has been created by the Town and its Owner Representative and shall be reviewed with the Design-Builder as part of the initial “Risk Register Workshop” described in Subtask 1.2. Components of the initial Project Risk Register are listed below. The Risk Register shall be updated as noted in “Progress Tracking and Reporting” below. Following the initial “Risk Register Workshop”, the Town’s Owner Representative shall maintain ownership of the Project Risk Register and the Design-Builder shall provide updates to the Project Risk Register items where the Design-Builder is deemed the “Risk Owner.”
 Risk identification and description
 Risk Owner
 Estimated percent likelihood that risk may occur
 Potential schedule impact should risk occur
 Potential cost impact should risk occur
 Probability weighted cost associated with each risk item  Risk management/mitigation strategy
Progress Tracking and Reporting. The Design-Builder shall submit monthly reports summarizing Project progress. The monthly progress reports shall include a narrative summarizing the progress of the Project and shall identify any recommended actions by the Town, its Owner Representative or the Design-Builder to mitigate risks or modify the Project approach and scope. Monthly progress reports shall be due by the fifth (5th) of each month.

Attachments to the monthly progress report shall include:
 Summary of Work. Identify activities worked on and/or completed during the last month including meetings and workshops, progress on deliverables, as well as significant items related to external agencies such as grants, permits, etc.  Planned Activities. Summarize planned activities and scheduled meetings/workshops for the next month.
 Issues and Concerns. Identify issues and concerns that may affect the Preliminary Services Schedule or budget and require discussion between the Town, its Owner Representative and Design-Builder.
 Progress Schedule. An updated P6 schedule file and a table of major milestones with originally scheduled completion dates and updated scheduled completion dates, including explanation of any changes to schedule since the last progress report.  Updated Action Item Log (if changed).
 Updated Decision Log (if changed).
 Updated Risk Register (if changed).

In addition, the Design-Builder shall submit a simplified weekly progress email to the Town’s Project Manager detailing the major accomplishments of the week and planned key tasks for the week ahead. This weekly email shall be due by 5 pm PT every Friday. 430
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2.2.1.2 SUBTASK 1.1 – DELIVERABLES
 Project Management Plan (PMP) – Draft & Final
 Preliminary Services Health and Safety Plan (PSHSP)
o PSHSP to be submitted prior to initiation of any field activities.  Preliminary Services Quality Management Plan (PSQMP) – Draft & Final  Document Management Plan (DMP) – Draft & Final
 Phase 1a Preliminary Services Schedule – Draft & Final  Project Risk Register – Monthly updates (if changed)
 Action Item Log – On-going
 Decision Log – On-going
 Monthly Progress Reports – On-going

2.2.1.3 SUBTASK 1.1 - ASSUMPTIONS
 Phase 1a shall be 10 months in length.
 Action Log, Decision Log, and Risk Register document updates shall be incorporated into existing Town/Owner Representative files (stored and maintained by the Town/Owner Representative on shared Teams site).
 Deliverable dates in accordance with the attached schedule.  The Town shall provide Town-specific health and safety requirements/language for incorporation in the PSHSP.
 The Town shall lead all efforts related to regulated sites with exception to those with regulated substances.

2.2.1.4 SUBTASK 1.2 – MEETINGS
As part of Subtask 1.2, the Design-Builder shall plan to participate in and/or schedule, prepare for and facilitate the following meetings, including the Design-Builder’s Project team, the Town and its Owner Representative, and any additional attendees necessary for a productive meeting. The meetings listed below are exclusive of additional meetings identified later in their respective Tasks or Subtasks.
 Project Kickoff Meeting. The Design-Builder shall schedule, prepare for and facilitate a four-hour Project Kickoff Meeting. Project Kickoff meeting shall be in-person, held at Town Hall in the Town and attended by up to eight (8) Design-Builder key staff.  Team Building and Project Chartering Workshop. The Design-Builder shall participate in one (1) in-person six-hour Team Building and Project Chartering Workshop at Town Hall in Paradise. The Town’s Owner Representative shall schedule, prepare for and facilitate the workshop. Up to eight (8) Design-Builder key staff shall attend.
 File Storage/Team Collaboration Site Workshop. The Design-Builder shall schedule, prepare for and facilitate (1) in-person two-hour Workshop at Town Hall in the Town.

Up to eight (8) Design-Builder key staff shall attend.
 Risk Register Workshop. The Design-Builder shall prepare for and participate in one (1) in-person three-hour Risk Register Workshop at Town Hall in Paradise. The Town’s Owner Representative shall schedule and facilitate the workshop. Up to six (6) DesignBuilder key staff shall attend.  Permitting, Funding, and Stakeholder/Public Outreach Strategy Workshop. The Design-Builder shall schedule and facilitate a review workshop (in-person, up to four hours) with the Town and its Owner Representative to discuss permitting, funding, and stakeholder/public outreach coordination needs and to collaborate action items and 431
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schedule for accomplishing related work. Up to eight (8) Design-Builder key staff shall attend.
 Stakeholder Meetings. The Design-Builder shall participate in various stakeholder meetings scheduled and facilitated by the Town’s Owner Representative (i.e. septic standards committee, zoning and land use studies, Caltrans, Butte County, etc.). The fee associated with this task assumes ten (10) targeted/one-hour stakeholder meetings, attended in-person by up to six (6) Design-Builder key staff.  Progress Meetings. The Design-Builder shall schedule, prepare for and facilitate onehour Progress Meetings at least every two (2) weeks. Meetings shall be hosted with hybrid participation options (MS Teams or other) and shall be attended by six (6) Design-Builder key staff (on average).
 Weekly Collaboration Meetings. The Design-Builder shall participate in weekly collaboration meetings with the Town and its Owner Representative (two (2) – one-hour remote/hybrid meetings each week). The Town’s Owner Representative shall schedule and facilitate the meetings. Meetings shall be hosted with hybrid participation options (MS Teams or other) and shall be attended by four (4) Design-Builder key staff (on average).
 Project Coordination Team (PCT) Meetings. The Design-Builder shall attend monthly PCT meetings, in-person for the first meeting and via remote/hybrid option for the following months. The Town’s Owner Representative shall schedule and facilitate the meetings. The fee associated with this task assumes one-hour long meetings, attended by up to two (2) Design-Builder key staff.
 Phase 1b Preliminary Services Review Meetings. Upon completion of all Tasks of the Phase 1a Preliminary Services, the Design-Builder shall schedule, prepare for and facilitate up to three (3) in-person 2-hour review meetings to present and ultimately finalize the scope, schedule and budget for the next Subsequent Preliminary Services Phase defined as Phase 1b (“Phase 1b”). Up to eight (8) Design-Builder key staff shall attend.

2.2.1.5 SUBTASK 1.2 – DELIVERABLES
 Meeting Agendas – Draft & Final (when facilitating) or pre-meeting comments (when participating).
 Meeting Notes – Draft & Final (when facilitating) or post-meeting comments (when participating).

2.2.1.6 SUBTASK 1.2 – ASSUMPTIONS
 Electronic deliverables.
 Deliverable and meeting dates in accordance with the attached schedule.

2.2.1.7 SUBTASK 1.3 – IMPLEMENT LOCAL OFFICE
The Design-Builder shall rent local office space within the Town for the Design-Builder and provide the necessary utilities and office supplies, furnishings, and equipment to perform work on site when necessary.

2.2.1.8 SUBTASK 1.3 – ASSUMPTIONS
 Budget is based on office space of approximately 2,000 sf.  Budget assume that minimal tenant improvements will be necessary.  Conference room shall be included within the office space.  Design-build team is working to prioritize office spaces that have highspeed internet service available.
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2.2.2 TASK 2 - REFERENCE DOCUMENT REVIEW AND VALIDATION The Design-Builder shall consult with the Town and its Owner Representative to develop a better understanding of the Project, Project site, constraints, Project requirements, and other information relevant to the Project. The Design-Builder shall schedule, prepare for and facilitate all necessary review meetings to help familiarize the Design-Builder’s Project Team with the past and on-going Project related work, as well, to allow the Design-Builder to inquire as to additional reference documentation that may be needed to progress the Project.

2.2.2.1 SUBTASK 2.1 – REVIEW EXISTING INFORMATION/DOCUMENTS Under this task the Design-Build team shall review the existing information as available by the Town and its Owner Representative. At a minimum, the following reference documents should be reviewed by the Design-Builder ahead of initial review meetings (all documents are located at https://paradisesewer.com/project-materials/):
 2020 HDR Phase 1 Executive Summary
 2022 HDR Technical Memo 8 Export Pipeline Analysis
 2022 HDR Technical Memo 8 Export Pipeline Analysis
 2022 HDR Technical Memo 9 EIR Construction Analysis
 2022 HDR Technical Memo 10 Analysis of Extended Collection System  2022 HDR Technical Memo 11 Environmental Permitting Strategy  Final PEIR Documents:
o Executive Summary
o Final PEIR Main Document
o Final PEIR Addendum
o Appendix A: NOP Scoping Report
o Appendix B: Town of Paradise 1994 General Plan Resolution and Amendments o Appendix C: Regulatory Framework
o Appendix D: Emissions Modeling
o Appendix E: Vegetation Community Descriptions and Special-Status Species Accounts
o Appendix F: Swainson’s Hawk Survey and Elderberry Shrub Mapping Report o Appendix G: Tribal Consultation
o Appendix H: Pump Station Energy Consumption Calculation o Appendix I: Public Comments and Responses on Draft PEIR o Final PEIR Notice of Determination
 2023 Inter-Municipal Agreement, City of Chico Wastewater Treatment Services to the Town of Paradise
 2023 Board Approval/LAFCO Resolution
 Permit Matrix and necessary permit accommodations (to be provided to Design-Builder upon Notice to Proceed)
 Town land-use/parcel mapping information and GIS files.  Lidar file(s) from Town's recent Stormwater Master Planning effort.

2.2.2.2 SUBTASK 2.2 – INFORMATION/DATA NEEDS
The Design-Builder shall prepare an information/data needs summary upon initial review of all reference documents, noting any missing data/information that the Town may have.

2.2.2.3 SUBTASK 2.3 – INFORMATION/DATA NEEDS REVIEW WORKSHOP The Design-Builder shall schedule, prepare for, and facilitate one (1) in-person, one (1) week information gathering session at Town Hall in the Town to review of all information shared (as 433
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requested in the Information/Data needs summary and supplemented with additional data/information that the Town finds relevant to the Project). The Design-Builder shall also schedule a second in-person, one (1) week information gathering session at Town Hall in the Town, to occur one week after the first information gathering session. It is understood that the Town/Owner Representative shall come to the sessions prepared to provide updates on various project efforts that may not yet be well documented.

2.2.2.4 TASK 2 – DELIVERABLES
 Meeting Agendas and Meeting Notes – Draft and Final
 Data/information needs summary
 Reference Document Log documenting:
o Documents, reports, drawings, and information Design-Builder has reviewed o Follow-up questions for the Town and its Owner Representative

2.2.2.5 TASK 2 – ASSUMPTIONS
 Electronic deliverables
 Deliverable and meeting dates in accordance with the attached schedule.

2.2.3 TASK 3 – FIELD INVESTIGATION PLAN
Robust field investigations shall be required to confirm Project and site conditions. The work associated with this Task is intended to develop a plan for the following objectives:
 Inform the Design-Builder’s analysis of alternatives, including hydraulic modeling criteria, pipe alignments, and approach(es) to construction planning and methods, including accommodations for pertinent climatic information (i.e., groundwater in Town vs. down Skyway).
 Allow the Design-Builder to develop its recommended geotechnical design criteria.  Provide information on expected ground behavior for selection and design of trenchless methods.
 Define areas with contaminated soils, the types of contamination, and the appropriate methods for transport and disposal, including disposal locations.

This work shall be delivered as separate packages for the (1) survey effort and (2) the geotechnical and environmental hazards investigation efforts, as described in the following Subtasks.

2.2.3.1 SUBTASK 3.1 – DESKTOP GEOTECHNICAL AND ENVIRONMENTAL HAZARDS STUDY
The Design-Builder shall conduct a Desktop Geotechnical and Environmental Hazards Study to identify known geologic conditions and environmental hazards along the Project alignment that will be used to inform early project decisions and the plan for performing geotechnical and environmental hazards field investigations. The Desktop Study shall include review of available geologic, regulatory agency, mineral resource maps and literature, and previous geotechnical reports which are relevant to the geology, soil, bedrock, environmental, and groundwater conditions within the Project alignment. The Design-Builder understands that the northbound lane at Butte Creek bridge of Highway 99 was replaced by Caltrans in 2014 due to scour issues at the underpinning of the bridge. The Design-Builder shall gather and review any available geotechnical reports, plans and as-built plans from Caltrans or other sources related to the construction of the new bridge in 2014 and past, current, and planned projects along the proposed alignment. Information shall include the geologic setting, geologic hazards, historical 434
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land uses, and general hazardous materials conditions that shall potentially be encountered within the alignment during construction. The data shall then be interpreted to delineate areas of concern for significant geologic and environmental hazards or other adverse conditions. The geotechnical engineer shall perform a two-day site reconnaissance to walk and drive the Project alignment. The information gathered shall be consolidated in a preliminary geologic map.

Preliminary geotechnical recommendations shall be summarized in a Geotechnical and Environmental Hazards Field Investigation Plan (Task 3.3) along with additional Preliminary Services field investigations and analyses needed to develop recommendations for design (including earthwork, trenchless crossings, lateral earth pressures, seismic design parameter using the USGS on-line mapping tool, and foundation recommendations, corrosivity and groundwater conditions).

2.2.3.2 SUBTASK 3.2 – EXISTING UTILITY RESEARCH
The Design-Builder shall complete existing utility research necessary for the development of an existing utility base map. This effort will also be useful before performing Survey Field Investigations to identify existing utility surface features to look for during the survey and help identify unmarked existing utility surface features. This will help expedite development of background CAD files that will be used for design development.

Existing utility research shall be conducted consistent with American Society of Civil Engineers Standard Guideline for Investigating and Documenting Existing Utilities (ASCE/UESI/CI 38- 22) Quality Level D. This work generally includes:
 Conducting utility records research to assist in identifying utility owners that may have facilities on or be affected by the Project.
 Collecting applicable utility owner records.
 Reviewing utility owner records for:
o Indications of additional available records
o Duplicate information and credibility of such duplicate information o The need for clarifications by utility owners
This effort shall also include coordination with PG&E and other local stakeholders (as deemed useful by the Town) to obtain information about existing utility installation.

Mapping existing utilities based on the drawings would occur as part of the Survey Field Investigations.

2.2.3.3 SUBTASK 3.3 – FIELD INVESTIGATION PLANS
Prior to conducting any field investigations and mobilizing any subconsultants specializing in the work below, the Design-Builder shall submit Field Investigation Plans for the Town and its Owner Representative review and acceptance. As a part of field investigation planning, the Town intends to provide the Design-Builder access to its GIS database and any available LiDAR files; no geotechnical, topographic survey, nor hazardous materials information is currently available. The Field Investigation Plans shall include, but not be limited to, the following information:
 Outline and schedule of proposed field investigation needed for BODR development  Planned field inspection methods, testing methods, and procedures, including identification of proposed boring locations and depths, testing, analyses, and recommendations that will be developed
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 Public outreach plan recommendations for any work planned in the Town or within effected stakeholder communities
 Town and its Owner Representative staff support needed during field investigations  Scope and budget for any field investigation work recommended in the field investigation plans
The fee associated with this task assumes the development of the following Field Investigation Plans:
 Survey Field Investigation Plan.
 Geotechnical and Environmental Hazards Field Investigation Plan  Potholing Plan
The Design-Builder shall submit each Draft Field Investigation Plan for Town/Owner Representative review, prior to facilitating the review of each during a regularly scheduled progress meeting. The Design-Builder shall prepare Final Field Investigation Plans that incorporate changes based on the Town/Owner Representative feedback.

2.2.3.4 SUBTASK 3.4 – SCOPING FOR PHASE 1 FIELD INVESTIGATIONS The Design-Builder shall meet with the Town and its Owner Representative upon completion of early-phase field investigations (Subtask 11.1) and each Task 3.3 field investigation plan to discuss scope, schedule, and fee for additional Preliminary Services field efforts recommended for incorporation into the BODR. The Design-Builder shall prepare amendments for additional services associated with (1) survey field investigations, (2) geotechnical and environmental hazards field investigation, and (3) identified potholing efforts that might contribute to efficiencies in the BODR development based on Town feedback received during the scoping sessions and any stakeholder interests identified during earlier Task 3 efforts. It is assumed that the scoping meetings for the field investigations will be virtual.

An amendment for additional Preliminary Services field investigations (included as allowances in Task 11) shall be negotiated with the Town and its Owner Representative before initiation of associated effort.

2.2.3.5 TASK 3 – DELIVERABLES
 Survey Field Investigation Plan - Draft and Final
 Geotechnical and Environmental Hazards Field Investigation Plan - Draft and Final  Potholing Plan - Draft and Final

2.2.3.6 TASK 3 – ASSUMPTIONS
 Access to Town GIS databases will be provided.
 Town LiDAR files will be provided and are sufficient for use in building the initial hydraulic model.
 Fee negotiations for Task 11 allowance items shall be completed during regularly scheduled progress meetings and the Town shall expedite release of amendments for the work (one for survey field investigation efforts, and one for geotechnical and environmental hazards field work).
 Electronic deliverables.
 The Town or its Owner Representative shall provide a consolidated set of comments on all draft deliverables via Bluebeam Studio review session (or similar, as mutually agreed by all participants).
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 Existing utility owners will provide existing utility records without a fee. Some utility owners require the existing utility request be signed by a representative of a public agency. In this case, we assume the Design-Builder will draft the letter for the Town to sign and send to the existing utility owner.
 Geotechnical Baseline Report (the “GBR”) will be completed in a Subsequent Preliminary Services Phase.
 Deliverable dates in accordance with the attached schedule.

2.2.4 TASK 4 – HYDRAULIC MODEL DEVELOPMENT AND ANALYSIS Sewer flowrates for the system will vary over time. The hydraulics associated with the Core Collection System and Export Pipeline will be reliant on alignments which are reliant on existing geologic conditions and locations of existing utilities. The work associated with this Task is intended to meet the following objectives:
 Document sewer flowrates over time
 Analyze pipeline and pumping hydraulics based on the realities of geologic conditions and locations of existing utilities
 Confirm the optimum pipe, pump, WPCP Connection, and other associated design criteria for use in the Basis of Design Report

2.2.4.1 SUBTASK 4.1 - HYDRAULIC MODEL
The Design-Builder shall develop a sewer system hydraulic model of the Core Collection System and Export Pipeline. This includes the development of phased sewer system flow estimates, which shall be developed based on the current (and projected) land use, as provided by the Town, and other input from the Town’s or the Owner Representative’s staff through completion of this task. Average dry weather flow (ADWF) and peak wet weather flow (PWWF) estimates shall be developed for up to three flow conditions, which could include the following:
 Initial (Near-Term) ADWF and PWWF Condition
 Core Collection System ADWF and PWWF Conditions
 Extended Collection System ADWF and PWWF Conditions
Following completion of the flow estimates, a hydraulic model shall be developed for the Core Collection System and Export Pipeline in a software package agreed upon by the Town and the Design-Builder. The hydraulics associated with the Core Collection System and Export Pipeline shall be analyzed based alignments which are reliant on existing geologic conditions and locations of existing utilities. As part of the hydraulic modeling, up to four alternative alignments shall be considered for the Core Collection System and Export Pipeline to confirm the optimum pipe alignment and sizing, pump station location and sizing, WPCP Connection, and other associated design criteria for use in the Basis of Design Report. The hydraulic modeling results including phased sewer flow estimates and hydraulic modeling results shall be generated for use in the Basis of Design Report.

2.2.4.2 SUBTASK 4.2 - HYDRAULIC MODEL TECHNICAL MEMORANDUM The Design-Builder shall summarize the methodology and findings of the hydraulic modeling efforts in a brief 5-10 page technical memorandum (the “TM”). The Hydraulic Model TM shall be submitted to the Town and its Owner Representative in draft form for review at the Hydraulic Model Review Meeting. Comments from the Town and its Owner Representative shall be incorporated into a final version of the TM, which shall be included as an attachment to the BODR.
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2.2.4.3 SUBTASK 4.3 - HYDRAULIC MODEL REVIEW MEETING
The Design-Builder shall schedule and facilitate a review workshop (in-person, up to four (4) hours) with the Town and its Owner Representative to present and summarize the draft findings of the hydraulic modeling effort and collect feedback from the Town and its Owner Representative. Up to six (6) Design-Builder staff shall participate.

2.2.4.4 TASK 4 – DELIVERABLES
 Hydraulic Model – format as recommended by Design Builder  Hydraulic Model TM
 Workshop agenda and minutes

2.2.4.5 TASK 4 – ASSUMPTIONS
 Electronic deliverables.
 Model calibration based on industry standard of care.  Town shall provide land use plan for core collection system and extended collection system.
 Deliverable and meeting dates in accordance with the attached schedule.

2.2.5 TASK 5 – BASIS OF DESIGN REPORT

2.2.5.1 SUBTASK 5.1 - DRAFT BASIS OF DESIGN REPORT
The Design-Builder shall prepare and deliver a draft and final Basis of Design Report (the “BODR”) that summarizes the information from Task 2 (Reference Document Review and Validation), Task 3 (Field Investigations), Task 4 (Hydraulic Model Development and Analysis), and Task 11 (Phase 1a Additional Preliminary Services) (if completed), as well as feedback/findings from workshops included in Task 5 (Basis of Design Report) and provides the basis to finalize design and construction of the Core Collection System, Export Pipeline and WPCP Connection. At a minimum, the BODR shall include the following:
 Project Summary, Goals/Objectives, and Requirements
 Design Criteria
 Design Standards
 Pipeline Alignment
 WPCP Connection Details
 Core Collection System Final Lateral Connection Alternatives Analysis and Recommendations
 Sewer System Operations and Maintenance Alternatives Analysis and Recommendations
The Design-Builder shall facilitate review of the draft BODR in the most efficient manner for the Town. Account for a period of fourteen (14) calendar days for the Town and its Owner Representative review of the draft BODR submittal.

2.2.5.2 SUBTASK 5.2 - IDENTIFICATION OF PROPERTY ACQUISITION AND RIGHT-OFWAY NEEDS WORKSHOP The Design-Builder shall schedule and facilitate a review workshop (in-person, up to four (4) hours) with the Town and its Owner Representative to discuss property acquisition and rightof-way needs and to collaborate action items and schedule for accomplishing related work. Up to eight (8) Design-Builder key staff shall attend.
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2.2.5.3 SUBTASK 5.3 - LATERAL CONNECTION STRATEGY SESSION The Design-Builder shall schedule and facilitate a review workshop (in-person, up to four (4) hours) with the Town and its Owner Representative to discuss alternatives for the collection system lateral connections and collect feedback from the Town and its Owner Representative for the draft BODR. Up to eight (8) Design-Builder key staff shall attend.

2.2.5.4 SUBTASK 5.4 - COLLECTION SYSTEM OPERATIONS WORKSHOP The Design-Builder shall schedule and facilitate a review workshop (in-person, up to four (4) hours) with the Town and its Owner Representative to discuss opportunities/limitations related to various collection system operational/design strategies and collect feedback from the Town and its Owner Representative for the draft BODR. Up to eight (8) Design-Builder key staff shall attend.

This task includes the preparation of a Life Cycle Cost Analysis (the “LCCA”) to compare collection system options developed by the Design-Builder. Methodology and findings of the LCCA shall be shared during the Task 5.3 Workshop (via PowerPoint slides) and shall be documented in the Basis of Design Report.

2.2.5.5 SUBTASK 5.5 - EXPORT PIPELINE/CHICO WPCP CONNECTION OPERATIONS

WORKSHOP
The Design-Builder shall schedule and facilitate a review workshop (in-person, up to four (4) hours, attended by up to six (6) Design-Builder key staff) with the Town, and its Owner Representative, the City of Chico, and Butte County to discuss opportunities/limitations related to differing export pipeline and Chico WPCP connection operational/design strategies and collect feedback for the draft BODR. The Design-Builder shall schedule and facilitate a separate, subsequent follow-up meeting with the City of Chico and Butte County (in-person, up to two (2) hours, attended by up to six (6) Design-Builder key staff), as needed to clarify the strategies discussed in the original review workshop.

2.2.5.6 SUBTASK 5.6 - SCADA STRATEGY WORKSHOP
The Design-Builder shall schedule and facilitate a review workshop (in-person, up to four (4) hours) with the Town and its Owner Representative to discuss supervisory control and data acquisition (the “SCADA”) options for the overall project. Up to six (6) Design-Builder key staff shall attend.

2.2.5.7 SUBTASK 5.7 - DRAFT BASIS OF DESIGN REVIEW MEETINGS The Design-Builder shall schedule and facilitate up to two (2) in-person, four-hour review meetings with the Town and its Owner Representative to present and summarize the BODR and address comments received from the Town and its Owner Representative. Up to eight (8) Design-Builder key staff shall attend each review meeting.

2.2.5.8 SUBTASK 5.8 - FINAL BASIS OF DESIGN REPORT
The Design-Builder shall revise the BODR in response to the Town and its Owner Representative comments, as appropriate, and furnish the final BODR in a format acceptable to the Town within fourteen (14) calendar days of receipt of the Town and its Owner Representative comments.
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The Town shall notify the Design-Builder of its acceptance of the final BODR. The final BODR, in conjunction with the deliverables associated with the deliverables from Tasks 6-10 shall serve as the basis for the next Subsequent Preliminary Services Phase(s) of the Project.

2.2.5.9 TASK 5 – DELIVERABLES
 Workshop agendas and minutes
 Basis of Design Report - Draft and Final
 Basis of Design Review Meeting Agendas and Notes - Draft and Final

2.2.5.10 TASK 5 – ASSUMPTIONS
 Electronic deliverables.
 The Town or its Owner Representative shall provide a consolidated set of comments on the Draft Basis of Design Report via Bluebeam Studio review session (or similar, as mutually agreed by all participants).
 Review meeting(s) participation from up to eight (8) Design-Builder key staff.  Deliverable and meeting dates in accordance with the attached schedule.

2.2.6 TASK 6 – FUNDING SUPPORT
The Project’s funding comes through various grants. The Design-Builder shall be required to support the Town and its Owner Representative in responding to funding questions from funding entities. The Design-Builder should assume up to twenty (20) hours per month over the duration of the Design-Builder’s proposed Phase 1a Preliminary Services Schedule in response to questions related to overall Project cost and schedule. The Design-Builder shall receive questions from the Town and/or its Owner Representative and shall provide responses back to the Town and/or its Owner Representative.

2.2.6.1 TASK 6 – DELIVERABLES
 Response to questions (as required)

2.2.6.2 TASK 6 – ASSUMPTIONS
 Electronic deliverables.

2.2.7 TASK 7 – PERMITTING SUPPORT
The Town’s Owner Representative is responsible for obtaining environmental permits associated with the Project on behalf of the Town. The Design-Builder shall be required to support creation of a detailed Project Permit Matrix that identifies anticipated permits, approvals, and consultations required for the Project, as well as the respective responsibilities of the Town, its Owner Representative and the Design-Builder in obtaining the required permits and approvals shall be provided. The Town’s Owner Representative shall be responsible for maintaining the Project Permit Matrix at least until construction Notice to Proceed – maintenance of the Project Permit Matrix may transition to the Design-Builder during construction.

2.2.7.1 TASK 7 – DELIVERABLES
 Project Permit Matrix updates (as required)
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2.2.7.2 TASK 7 – ASSUMPTIONS
 Electronic deliverables.

2.2.8 TASK 8 – STAKEHOLDER AND PUBLIC OUTREACH SUPPORT

2.2.8.1 SUBTASK 8.1 – DESIGN-BUILDER’S SUPPORT OF PUBLIC OUTREACH

ACTIVITIES
The Town’s Owner Representative in conjunction with the Town is responsible for public outreach activities throughout the life of the Project. As a part of the Subtask 1.2 “Team Building and Project Chartering Workshop”, the Design-Builder shall be provided the Project’s Public Outreach Plan and with the Town and its Owner Representative, shall confirm the Design-Builder’s support of public outreach activities for use in the Subtask 1.2 “Phase 1b Preliminary Services Review Meetings.”

2.2.8.2 TASK 8 – DELIVERABLES
 Design-Builder Public Outreach support responsibilities – Draft and Final

2.2.8.3 TASK 8 – ASSUMPTIONS
 Electronic deliverables.
 Deliverable dates in accordance with the attached schedule.

2.2.9 TASK 9 – BASELINE DESIGN AND CONSTRUCTION PHASING PLAN AND

SCHEDULE

2.2.9.1 SUBTASK 9.1 - DRAFT BASELINE DESIGN AND CONSTRUCTION PHASING

PLAN AND SCHEDULE
The Design-Builder shall schedule a four (4) hour in-person meeting with the Town and its Owner Representative to strategize breaking down the project into design and build segments (with up to eight (8) Design-Builder key team). This shall incorporate the limitations/capabilities of designing the systems, permitting, obtaining rights of way, constructability, and perhaps funding mechanisms. The goal is to have a plan that promotes efficiency in the design process and facilitates construction productivity while maximizing opportunities for early and/or late work packages if necessary.

The Design-Builder shall schedule a meeting with the Town and its Owner Representative scheduler to develop a draft schedule WBS activities. Upon agreement of the schedule WBS activities, and after the initial cost model (draft estimate) has been submitted, a cost-loaded schedule shall be developed through testing and commissioning of the Project. This schedule shall be based on the information provided in the technical reference documents listed under Subtask 2.1.

No later than thirty (30) calendar days after completion of the BODR, the Design-Builder shall submit an updated draft Baseline Design and Construction Phasing Plan and Schedule that includes all activities through the completion of testing, commissioning and start-up of the Project.
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2.2.9.2 SUBTASK 9.2 - DRAFT BASELINE DESIGN AND CONSTRUCTION PHASING

PLAN SCHEDULE REVIEW MEETINGS
The Design-Builder shall schedule the following meetings with the Town and its Owner Representative:
 One (1) two-hour meeting to develop the schedule WBS (with up to six (6) DesignBuilder key staff).  Up to three (3) two-hour meetings to review draft schedules and updates (with up to six (6) Design-Builder key staff).
 Up to two (2) four-hour meetings to review cost loaded schedules (with up to six (6) Design-Builder key staff).

2.2.9.3 SUBTASK 9.3 - REVISED BASELINE DESIGN AND CONSTRUCTION PHASING

PLAN AND SCHEDULE
The Design-Builder shall revise the draft Baseline Design and Construction Phasing Plan and Schedule in response to the Town and its Owner Representative comments, as appropriate, for use in the Subtask 1.2 “Phase 1b Preliminary Services Review Meetings”.

2.2.9.4 TASK 9 – DELIVERABLES
 Draft WBS Schedule Structure
 Draft Cost-Loaded Schedule based on reference documents identified in Subtask 2.1  Baseline Design and Construction Phasing Plan and Schedule – Draft and Final

2.2.9.5 TASK 9 – ASSUMPTIONS
 WBS activity meeting will be virtual.
 Electronic deliverables.
 Initial Schedule shall be based off of reference documents identified in Subtask 2.1.  The Schedule shall be updated to reflect the BODR once complete.

2.2.10 TASK 10 – COST MODEL

2.2.10.1 SUBTASK 10.1 - DRAFT BASELINE COST MODEL TEMPLATE The Design-Builder shall meet with the Town’s Owner Representative and develop an agreed upon cost model (estimate) template for the work through design, construction, and startup.

Once an agreed upon template is developed, the Design-Builder shall produce an estimate based on the reference documents identified in Subtask 2.1 and using current market rates for labor, equipment, and materials. Upon completion of the estimate, the Design-Builder shall review it with the Town and its Owner Representative and compare it with the Town’s current schedule of costs for the Design and Construction portions of the project. The estimate shall then be used to provide a cost-loaded schedule as described in Task 9 (Baseline Design and Construction Phasing Plan and Schedule).

After completion of the BODR, the estimate shall be updated and reviewed with the Town. The final Phase 1a estimate shall be incorporated into an updated Schedule and Phasing Plan for Design and Construction.
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2.2.10.2 SUBTASK 10.2 - DRAFT BASELINE COST MODEL REVIEW MEETINGS The Design-Builder shall schedule and facilitate one (1) two-hour meeting to review the estimate template and up to two (2), four-hour review meetings with the Town to compare the Town’s Owner Representative’s initial Design and Construction Estimate with the DesignBuilder’s estimate.

The Design-Builder shall schedule and facilitate up to two (2), 4-hour review meetings with the Town and its Owner Representative to present and summarize the draft Baseline Cost Model and address comments received from the Town and its Owner Representative. Review meetings may be in conjunction with the review meetings for the Task 9 “Draft Baseline Design and Construction Phasing Plan and Schedule”.

2.2.10.3 SUBTASK 10.3 - REVISED BASELINE COST MODEL
The Design-Builder shall revise the draft Baseline Cost Model in response to the Town and its Owner Representative comments, as appropriate, for use in Subtask 1.2 “Phase 1b Preliminary Services Review Meetings”.

2.2.10.4 TASK 10 – DELIVERABLES
 Initial Cost Model using reference documents identified in Subtask 2.1 and current market pricing.
 Baseline Cost Model – Draft and Final

2.2.10.5 TASK 10 – ASSUMPTIONS
 Initial two (2) hour meeting will be virtual or scheduled on the same day as other inperson meetings.  Electronic PDF copies shall be made available to the Town and its Owner Representative on a secure site provided by the Design Builder for review.  Deliverable and meeting dates in accordance with the attached schedule.  Task 10 meetings shall be attended by up to six (6) Design-Builder key staff.

2.2.11 TASK 11 –PHASE 1A ADDITIONAL BASE PRELIMINARY SERVICES The Design-Builder shall provide Phase 1a Additional Preliminary Services as requested by the Town. These may include but are not limited to the subtasks summarized herein.

The Design-Builder shall request prior approval from the Town for any work performed pursuant to this Task 11 before initiation of related efforts. The Town shall approve all additional services and the terms of compensation therefor pursuant to a Contract Administration Memorandum on the terms set forth below prior to any Notice to Proceed for any work performed pursuant to this Task 11. The Town’s approval of any work performed pursuant to this Task 11 and the terms of compensation therefor shall be memorialized in a Contract Administration Memorandum delivered in accordance with Section 17.4 (Contract Administration) of the Design-Build Contract signed by the Design-Builder Contract Representative and the Town Manager of the Town as the Town Contract Representative.

Receipt of email approval from the Town or its Owner Representative shall suffice as a Notice to Proceed with respect to such additional services described in such Contract Administration Memorandum.
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2.2.11.1 SUBTASK 11.1 – EARLY-PHASE FIELD INVESTIGATION (ALLOWANCE) An allowance is included herein for use by the Town for payment of Phase 1a Additional Preliminary Services for early-phase field investigation efforts needed to expedite the development of the BODR and related predesign efforts (including, but not limited to, geotechnical borings at the various trenchless crossings and in the Town). This Subtask also includes the preparation of a Geotechnical Data Report, summarizing methodology and key findings from the early phase borings.

2.2.11.2 SUBTASK 11.2 – ADDITIONAL PHASE 1A TOPOGRAPHIC SURVEY (ALLOWANCE)
An allowance is included herein for use by the Town for payment of Phase 1a Additional Preliminary Services for topographic survey efforts developed and documented as part of the Survey Field Investigation Plan in Subtask 3.3 (Field Investigation Plans). The fee associated with this allowance amount may require amendment, pending the actual survey requirements needed for completion of BODR efforts.

2.2.11.3 SUBTASK 11.3 – ADDITIONAL PHASE 1A GEOTECHNICAL AND

ENVIRONMENTAL INVESTIGATION (ALLOWANCE)
An allowance is included herein for use by the Town for payment of Phase 1a Additional Preliminary Services for additional geotechnical and environmental investigation efforts developed and documented as part of the Geotechnical and Environmental Hazards Field Investigation Plan in Subtask 3.3 (Field Investigation Plans). The fee associated with this allowance amount may require amendment, pending the actual geotechnical and environmental requirements needed for completion of BODR efforts.

2.2.11.4 SUBTASK 11.4 – ADDITIONAL ALIGNMENT ALTERNATIVES (ALLOWANCE) An allowance is included herein for use by the Town for payment of Phase 1a Additional Preliminary Services for effort associated with the development and evaluation of additional alignment alternatives, as needed to identify an alignment that provides the most advantageous environmental and ROW opportunities (if different from current alignment).

2.2.11.5 SUBTASK 11.5 – ADDITIONAL PROJECT MEETINGS (ALLOWANCE) An allowance is included herein for use by the Town for payment of Phase 1a Additional Preliminary Services for attendance, participation, and/or facilitation of meetings or workshops outside of those specifically identified herein.

2.2.11.6 SUBTASK 11.6 – ADDITIONAL OUTREACH EFFORT (ALLOWANCE) An allowance is included herein for use by the Town for payment of Phase 1a Additional Preliminary Services for additional outreach effort associated with local business happenings, labor sourcing, community education, or other as requested by the Town or its Owner Representative.

2.2.11.7 SUBTASK 11.7 – PARTICIPATION/SUPPORT AT TOWN COUNCIL

MEETINGS/PUBLIC COMMUNICATION (ALLOWANCE)
An allowance is included herein for use by the Town for payment of Phase 1a Additional Preliminary Services for support with Town Council updates and other public communications, as requested by the Town or its Owner Representative.
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2.2.11.8 SUBTASK 11.8 – PUBLIC RECORDS REQUEST (ALLOWANCE) An allowance is included herein for use by the Town for payment of Phase 1a Additional Preliminary Services for effort associated with submittal and management of a public records request for PG&E as-built information.

2.2.11.9 FUNDING COMPLIANCE REQUIREMENTS (ALLOWANCE)
An allowance is included herein for use by the Town for payment of Phase 1a Additional Preliminary Services for coordination, assistance, and/or execution of compliance requirements required by the Town’s funding source, which currently includes the following efforts/deliverables:
 Hydrogeology and water management investigation.
 Archaeological investigation.
 Weather risk consideration in schedule updates.
 CA National Historical Preservation Act compliance (Federal and State).  Report on Grant funding provisions for establishing MSA milestones and other compliance requirements.
 Certification Clause development (Phase 1a certifications and as required for grant funding/reimbursement).

The Design-Builder will work with the Town and its Owner Representative early in Phase 1a to determine responsibility, scope, and timeline for delivery of these efforts and others that may be associated with current and future funding sources.

2.2.11.10 SUBTASK 11.10 – OTHER UNANTICIPATED WORK IDENTIFIED BY THE TOWN (ALLOWANCE)
An allowance is included herein for use by the Town for payment of Phase 1a Additional Preliminary Services for execution of other unanticipated work as requested by the Town or its Owner Representative).

2.2.12 TASK 11 – DELIVERABLES
 Geotechnical Data Report – Draft and Final.
 To be subsequently determined.

2.2.13 TASK 11 – ASSUMPTIONS
 The Town shall approve all additional services prior to Notice to Proceed for any work performed pursuant to this Task 11.
 Investigations on private property will require access from private property owners. The Town and its Owner Representative shall lead discussions with private property owners and the Design-Builder will provide technical assistance and supporting information for the Town and its Owner Representative to obtain access to private property for the investigations.

2.3. PHASE 1A PRELIMINARY SERVICES SCHEDULE
The Phase 1a Preliminary Services Schedule is included as Attachment 2B-1. 445
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2.4. PHASE 1A PRELIMINARY SERVICES COMPENSATION

2.4.1 COMPENSATION FOR PHASE 1A BASE PRELIMINARY SERVICES The Town shall pay the Design-Builder for Phase 1a Base Preliminary Services direct costs for labor and expenses based on all inclusive hourly labor rates documented in Attachment 2D-1, up to a not-to-exceed limit of $3,435,136 (the “Phase 1a Preliminary Services Fee”).

Attachment 2C-1 is a breakdown by Task of the not-to-exceed amount of the Phase 1a Preliminary Services Fee. As set forth in Sections 9.1(B) (Compensation for Additional Preliminary Services) of the Design-Build Contract, the Design-Builder shall be compensated for any Phase 1a Additional Preliminary Services described in Task 11 on a time and materials or lump sum basis, as agreed to in writing by the Town as set forth in this Appendix 2, which the Town intends to pay from the allowance described in the following sentence. An allowance up to a not-to-exceed limit of $4,157,150 is available to the Town for payment of Phase 1a Additional Preliminary Services described in Task 11. Attachment 2C-1 is a breakdown by Subtask of the allowance for Task 11. Work on Task 11 shall be billed at the rates shown in Attachment 2D-1.

The Design-Builder may include in Phase 1a Base Preliminary Services direct costs for labor and expenses a mark-up of a direct Subcontract in an amount not to exceed 5% of the costs incurred under such Subcontract in respect of labor, materials, equipment, supplies and any lower-tier Subcontract; provided that in no event shall any mark-up of a direct Subcontract or any lower-tier Subcontract at any level include a mark-up of a lower-tier Subcontract which has already been marked-up under another Subcontract.

2.4.2 PAYMENT REQUESTS
The Design-Builder shall request monthly progress payments for direct labor and expense costs incurred. All billings and requests for progress payments shall require a written invoice from the Design-Builder in a form acceptable to the Town, including itemization of labor and expenses by task. The Design-Builder shall submit all billings with appropriate summaries of work progress, after which the Town shall make payment at the earliest practicable time, but not later than 30 days following receipt of a proper payment request. To the extent that prevailing wages apply to any Phase 1a Preliminary Services so invoiced, the Design-Builder shall provide certified payrolls with respect to any such Phase 1a Preliminary Services so invoiced.

2.4.3 COMPENSATION FOR PHASE 1A ADDITIONAL PRELIMINARY SERVICES In the event the Town elects to request any Phase 1a Additional Preliminary Services, compensation for such Phase 1a Additional Preliminary Services shall be negotiated by the Town and the Design-Builder in accordance with Section 9.1(B) (Compensation for Phase 1a Additional Preliminary Services) of this Design-Build Contract, and shall be billed using the rates set forth in Attachment 2D-1.
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ATTACHMENT 2A

PLANNED SURVEY EXTENTS
[Note: To be developed.]
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ATTACHMENT 2B

PRELIMINARY SERVICES SCHEDULE
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ATTACHMENT 2B-1
PHASE 1A PRELIMINARY SERVICES SCHEDULE
[See attached pages]
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ID Task Name Duration Start Finish
1 Town Council Approval (assumed) 0 days Tue 2/13/24 Tue 2/13/24 2 Notice to Proceed (assumed) 0 days Wed 3/13/24 Wed 3/13/24 3 Phase 1 1003 days Fri 12/22/23 Tue 10/26/27
4 Task 1: Project Management 210 days Tue 3/19/24 Tue 1/7/25 5 1.1 - Project Management and Administration 65 days Wed 3/20/24 Tue 6/18/24 6 Project Management Documents 65 days Wed 3/20/24 Tue 6/18/24 7 Develop and Submit Draft Documents 45 days Wed 3/20/24 Tue 5/21/24 8 Project Management Plan 3 wks Wed 4/17/24 Tue 5/7/24
9 Phase 1 Health and Safety Plan 3 wks Wed 4/17/24 Tue 5/7/24 10 Document Management Plan 2 wks Wed 5/8/24 Tue 5/21/24 11 Phase 1 Schedule 4 wks Wed 3/20/24 Tue 4/16/24
12 Internal QC Review 1 wk Wed 5/22/24 Tue 5/28/24
13 Submit Draft Documents 0 days Tue 5/28/24 Tue 5/28/24 14 Town Review 1 wk Wed 5/29/24 Tue 6/4/24
15 Update Final Documents 10 days Wed 6/5/24 Tue 6/18/24 16 Project Management Plan 2 wks Wed 6/5/24 Tue 6/18/24 17 Phase 1 Health and Safety Plan 2 wks Wed 6/5/24 Tue 6/18/24 18 Document Management Plan 2 wks Wed 6/5/24 Tue 6/18/24 19 Phase 1 Schedule 2 wks Wed 6/5/24 Tue 6/18/24
20 Submit Final Documents 0 days Tue 6/18/24 Tue 6/18/24 21 Risk Management 10 days Wed 5/29/24 Tue 6/11/24
22 Internal Review of Potential Risks 2 wks Wed 5/29/24 Tue 6/11/24 23 Progress Tracking and Reporting 1 day Wed 3/20/24 Wed 3/20/24 24 Monthly Progress Reports 1 day Wed 3/20/24 Wed 3/20/24 25 1.2 - Meetings 210 days Tue 3/19/24 Tue 1/7/25
26 Project Kickoff Meeting 0 days Tue 3/19/24 Tue 3/19/24 27 Team Building and Project Chartering Workshop 0 days Tue 3/26/24 Tue 3/26/24 28 File Storage/Team Collaboration Workshop 0 days Tue 6/4/24 Tue 6/4/24 29 Risk Register Workshop 0 days Tue 6/11/24 Tue 6/11/24 30 Permitting, Funding, and Stakeholder/Public Outreach Strategy Workshop 0 days Tue 6/11/24 Tue 6/11/24 31 Stakeholder Meetings 4 mons Wed 6/12/24 Tue 10/1/24
32 Bi-Weekly Progress Meetings 10 mons Wed 4/3/24 Tue 1/7/25 33 Weekly Collaboration Meetings 10 mons Wed 4/3/24 Tue 1/7/25 34 Project Coordination Team (PCT) Meetings 200 days Wed 4/3/24 Tue 1/7/25 35 Phase 2 Preliminary Services Amendment Review Meetings #1 0 days Tue 12/10/24 Tue 12/10/24 36 Phase 2 Preliminary Services Amendment Review Meetings #2 0 days Tue 12/17/24 Tue 12/17/24 37 Phase 2 Preliminary Services Amendment Review Meetings #3 0 days Tue 12/24/24 Tue 12/24/24 2/13
3/13
5/28
6/18
3/19
3/26
6/4
6/11
6/11
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