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Emery & Sons Construction Group, LLC ~ CP22005 CITY OF TIGARD - CONTRACT SUMMARY & ROUTING FORM Contract Overview Contract/Amendment Number: CP22005a3 Contract Start Date: 12/8/21 Contract End Date: 02/14/2025 Contract Title: Reservoir 18 & Pump Station Progressive Design Build Contractor Name: Emery & Sons Construction Group, LLC Contract Manager: Shasta Billings-Beck Department: PW Contract Costs Original Contract Amount: $2,153,678.00 Total All Previous Amendments: 298,998.00 Total of this Amendment: 0 Total Contract Amount: $31,440,376.00 Procurement Authority Contract Type: Progressive Design Build Procurement Type: Formal RFP >$150K Solicitation Number: 2021-16 LCRB Date: 03/14/2023 Account String: Fund-Division-Account Work Order – Activity Type Amount FY 23 Contracts & Purchasing Approval Purchasing Signature: Comments: End Date updated DocuSign Routing Route for Signature Name Email Address Contractor Dan Vannoy Dan.vannoy@emeryandsons.com City of Tigard Steve Rymer stever@tigard-or.gov Final Distribution Contractor Brian Vinson Brian.winson@emeryandsons.com Project Manager Shasta Billings – Beck shastab@tigard-or.gov Shauna Large shauna@tigard-or.gov Buyer Toni Riccardi tonir@tigard-or.gov CITY OF TIGARD - CONTRACT SUMMARY & ROUTING FORM Contract Overview Contract/Amendment Number: CP22005a2 Contract Start Date: 12/8/21 Contract End Date: 6/30/2025 Contract Title: Reservoir 18 & Pump Station Progressive Design Build Contractor Name: Emery & Sons Construction Group, LLC Contract Manager: Shasta Billings-Beck Department: PW Contract Costs Original Contract Amount: $2,153,678.00 Total All Previous Amendments: 298,998.00 Total of this Amendment: $28,987,700.00 Total Contract Amount: $31,440,376.00 Procurement Authority Contract Type: Progressive Design Build Procurement Type: Formal RFP >$150K Solicitation Number: 2021-16 LCRB Date: 03/14/2023 Account String: Fund-Division-Account Work Order – Activity Type Amount FY 23 532-8000-56005 96040-130 $5,500,000.00 FY 24 532-8000-56005 96040-130 $18,000,000.00 FY 25 532-8000-56005 96040-130 $5,487,700.00 Contracts & Purchasing Approval Purchasing Signature: Comments: Add GMP scope and funds LCRB Approved 03-14-2023 DocuSign Routing Route for Signature Name Email Address Contractor Dan Vannoy Dan.vannoy@emeryandsons.com City of Tigard Steve Rymer stever@tigard-or.gov Final Distribution Contractor Brian Vinson Brian.vinson@emeryandsons.com Project Manager Shasta Billings-Beck shastab@tigard-or.gov Shauna Large shauna@tigard-or.gov Buyer Toni Riccardi tonir@tigard-or.gov CITY OF TIGARD - CONTRACT SUMMARY & ROUTING FORM Contract Overview Contract/Amendment Number: CP22005a1 Contract Start Date: 12/8/21 Contract End Date: TBD with GMP Amendment Contract Title: Reservoir 18 & Pump Station Progressive Design Build Contractor Name: Emery & Sons Construction Group, LLC Contract Manager: Shasta Billings-Beck Department: PW Contract Costs Original Contract Amount: $2,153,678.00 Total All Previous Amendments: n/a Total of this Amendment: $298,998.00 Total Contract Amount: $2,438,438.00 Procurement Authority Contract Type: Progressive Design Build Procurement Type: Formal RFP >$150K Solicitation Number: 2021-16 LCRB Date: 12/7/21 Account String: Fund-Division-Account Work Order – Activity Type Amount FY 23 532-8000-56005 96040-130 $298,998.00 Contracts & Purchasing Approval Purchasing Signature: Comments: Add additional scope and funds LCRB Approved 11/1/22 DocuSign Routing Route for Signature Name Email Address Contractor Dan Vannoy Dan.vannoy@emeryandsons.com City of Tigard Steve Rymer stever@tigard-or.gov Final Distribution Contractor Brian Vinson Brian.winson@emeryandsons.com Project Manager Shasta Billings – Beck shastab@tigard-or.gov Shauna Large shauna@tigard-or.gov Buyer Toni Riccardi tonir@tigard-or.gov CITY OF TIGARD-CONTRACT SUMMARY&ROUTING FORM Contract Overview Contract/Amendment Number: CP22005 Contract Start Date: 12/8/21 Contract End Date:TBD with GMP Amendment Contract Title: Reservoir 18 &Pump Station Progressive Design Build Contractor Name: Emery& Sons Construction Group,LLC Contract Manager: Shasta Billings-Beck Department: PW Contract Costs Original Contract Amount: $2,153,678.00 Total All Previous Amendments: Total of this Amendment: Total Contract Amount: $2,153,678.00 Procurement Authority Contract Type: Progressive Design Build Procurement Type: Formal RFP >$150K Solicitation Number: 2021-16 LCRB Date: 12/7/21 Account String: Fund-Division-Account Work Order—Activit):1=e Amount FY 22 532-8000-56005 96040-130 $1,787,825.00 FY 23 532-8000-56005 96040-130 $365,854.00 FY FY FY ,Contracts & Purchasing Approval Purchasing Signature: Comments: DocuSign Routing Route for Signature Name Email Address Contractor Dan Vannoy Dan.vannoy&emeryandsons.com City of Tigard Steve Rymer stever&tigard-or.gov Final Distribution Contractor Brian Vinson Brian.winsonkemeryandsons.com Project Manager Shasta Billings—Beck shastab ti and-or. ov Shauna Large shauna ti and-or. ov Buyer Christine Moody christine ti and-or. ov DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Contract Number CP22005 RESERVOIR 18 AND PUMP STATION PROGRESSIVE DESIGN-BUILD AGREEMENT THIS AGREEMENT, made and entered into this 8th day of December, 2021, by and between the City of Tigard,a municipal corporation,hereinafter referred to as the"City," and Emery&Sons Construction Group, LLC,hereinafter referred to as the "Design-Builder," collectively referred to as the "Parties" herein. RECITALS WHEREAS, the City's Fiscal Year 2022 budget provides for Design-Build services for the Reservoir 18 and Pump Station project; and WHEREAS, the accomplishment of the work and services described in this Agreement is necessary and essential to the program of the City; and WHEREAS, the City issued Request for Proposals No. 2021-16 and Design-Builder earned the highest total score and was selected; and WHEREAS, unless defined in this Agreement, capitalized terms have the meanings assigned to them in the General Conditions for Construction. WHEREAS, this Agreement contemplates a limited initial scope of work by the Design-Builder for Pre- Construction Design, including Preliminary Engineering and Construction Document Development for one or more Subprojects in the Project. The Parties intend for the Design-Builder to later submit a proposal for the completion of design and construction,based on the Construction Documents for the first Subproject(s) identified in the Scope of Work. If the Parties reach an agreement as to the terms of the Design-Builder's Construction Proposal, the Parties will enter into a Guaranteed Maximum Price Amendment ("GMP Amendment's for the construction of the Subproject(s), based on the terms of this Agreement. Contingent on allocation of funding and the City's needs, in the City's sole discretion, the Design-Builder may also perform design work and submit proposals for construction of one or more additional Subproject(s), based on the Construction Documents for each additional Subproject. THEREFORE, in consideration of the promises and covenants contained herein, the Parties hereby agree as follows: 1. Terms of Services Design-Builder will perform design-build services in accordance with the terms and conditions set forth herein, and as provided in Exhibit B, General Conditions for Construction ("General Conditions',which is attached hereto and by this reference made a part of this Agreement. 2. Effective Date and Duration This Agreement is effective upon the signature of the Parties and Design-Builder's submittal of the required certificates of insurance and performance and payment bonds. This Agreement will remain in effect,unless otherwise terminated or extended until the work on the Project has been completed, DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 the Work accepted by the City, and the warranty period has expired. All work under this Agreement must be completed prior to the expiration of this Agreement. 3. Compensation A. Design Services Compensation City will pay Design-Builder for Pre-Construction Design Phase work described in Section 12, as set out in Exhibit 3, based on time and materials as set forth in the attached Exhibit 4, but the total payment under this Agreement, which includes allowable expenses or reimbursement may not exceed Two Million One Hundred Fifty-Three Six Hundred Seventy-Eight and 00/100 Dollars ($2,153,678.00). This Not to Exceed amount may be exceeded only upon prior written increase in the Scope of Work, accompanied by written Amendment signed by authorized representatives of both Parties. If there is no change in Scope of Work, the Design-Builder will complete all identified Work within the Not to Exceed amount as indicated above. Any known additional or optional tasks are listed in Exhibit 3. 1) Design-Builder will send City an invoice each month setting forth the amount due for that month and include a detailed summary of the work performed during the pay period. City will review all submitted invoices promptly and pay all undisputed amounts within 30 days of City's receipt of the invoice. 2) If an invoice is delivered on a nonbusiness day,the invoice will be considered received on the next day the City's Finance Department is open for business. 3) Design-Builder will reference the Agreement Number on all invoices. B. Guaranteed Maximum Price If the Parties execute a GMP Amendment, the City will pay Design-Builder as described in this Section 3 and the GMP Amendment. The Guaranteed Maximum Price includes (1) the Cost of the Work as defined in Section 4 and (2) the Design-Builder's Percentage Fee. Design-Builder must pay costs that would cause the Guaranteed Maximum Price, as it may be adjusted pursuant to the GMP Amendment,to be exceeded,without reimbursement by the City. C. Design-Builder's Percentage Fee 1) The Design-Builder's Percentage Fee must be set forth in the GMP Amendment and may not exceed a fixed amount equal to the percentage as set forth in Exhibit 4 of the estimated Cost of the Work. The Design-Builder may invoice the City for payments toward the Design- Builder's Percentage Fee in accordance with Subsection 3.C.3. of this Agreement. The Design- Builder's Percentage Fee is conclusively presumed to include all costs not reimbursable under this Agreement,including,without limitation, overhead and profit. 2) If the Guaranteed Maximum Price is adjusted after execution of the GMP Amendment,if any, an adjustment to the Design-Builder's Percentage Fee will be determined by fixing an amount equal to 12 percent of the estimated Cost of the Work related to the change that is the basis for the adjustment to the Guaranteed Maximum Price. The City will not pay for any costs that exceed the Guaranteed Maximum Price,including any additional fee based on such costs, and the Design-Builder's Percentage Fee is subject to no other adjustments. 3) Each of the Design-Builder's requests for progress payment may include a request for payment of Design-Builder's Percentage Fee equal to the percentage as set forth in Exhibit 4 of the reimbursable costs for that period. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 D. The City does not anticipate early construction work occurring during the Pre-Construction Design Phase of this Agreement.However,in the event that early construction work is determined to be necessary, consistent with Subsection 13.B.2, the City will issue a Change Order or Change Directive amending this Agreement to incorporate the early work and adjusting Design Services Compensation accordingly. E. As used in this Agreement, the phrase "performance of the Work"includes Design Services, any Work that is authorized under a Change Order or Change Directive issued before the execution of the GMP Amendment,Work authorized under the GMP Amendment and Section 13, if any, and all of the Design-Builder's other obligations under this Agreement. F. Required Provisions. 1) Design-Builder must make payments promptly, as due, to all persons supplying labor or materials for the performance of the work provided for in this Agreement. [Required by ORS 279B.220 (1)] 2) Design-Builder may not permit any lien or claim to be filed or prosecuted against the City on any account of any labor or material furnished. [Required by ORS 279B.220 (3)] 3) Design-Builder will pay to the Department of Revenue all sums withheld from employees. [Required by ORS 316.167]. 4) Design-Builder will pay all contributions or amounts due the Industrial Accident Fund from the Design-Builder or any Subcontractor [Required by ORS 279B.220 (2)]. 5) If Design-Builder fails,neglects, or refuses to make prompt payment of any claim for labor or services furnished to Design-Builder or a Subcontractor by any person as such claim becomes due,Design-Builder is liable for the amount of the unpaid overtime wages and in an additional amount equal to the unpaid overtime wages as liquidated damages. [Required by ORS 279B.020 (9)] 6) Design-Builder will promptly, as due, make payment to any person, co-partnership, association,or corporation,furnishing medical,surgical,and hospital care or other needed care and attention, incident to sickness or injury, to the employees of Design-Builder, of all sums that Design-Builder agrees to pay for the services and all moneys and sums that Design-Builder collected or deducted from the wages of employees pursuant to any law, contract, or agreement for the purpose of providing or paying for services. [Required by ORS 279B.230 (1)] 7) Design-Builder and its employees, if any, are not active members of the Oregon Public Employees Retirement System and are not employed for a total of 600 hours or more in the calendar year by any public employer participating in the Retirement System. 8) Design-Builder must obtain,prior to the execution of any performance under this Agreement, a City of Tigard Business License. The Tigard Business License is based on a calendar year with a December 31st expiration date. New businesses operating in Tigard after June 30th of the current year will pay a pro-rated fee though the end of the calendar year. 9) The City certifies that sufficient funds are available and authorized for this Agreement during the current fiscal year. Funding during future fiscal years is subject to budget approval by Tigard's City Council. 4. Cost of the Work A. The term"Cost of the Work"means costs necessarily incurred by the Design-Builder in the proper performance of the Work. Such costs must be at rates not higher than the standard paid at the DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 place of the Project except with the prior written consent of the City. The Cost of the Work may only include the items set forth in this Section 4. Where any cost is subject to the City's prior written approval,the Design-Builder must obtain this written approval prior to incurring the cost, which prior written approval is a condition precedent of Design-Builder's right to payment for such cost. The following are costs included in the Cost of the Work: 1) Reasonable payments to Subcontractors (including but not limited to Designers), provided that: (1) the City receives the benefit of trade and quantity discounts; (2) the Design-Builder may retain the benefits of discounts for early payment; (3) each subcontract, including those for supplies for which the Design-Builder seeks reimbursement, has been awarded in accordance with the terms of the Agreement; (4) reimbursement will be reduced to the extent the cost for which reimbursement is sought fails to satisfy the requirements set forth in Article 10 of the General Conditions; and (5) reimbursement will be further reduced to the extent the cumulative total of all markups on a cost by Subcontractors at all tiers exceeds the percentage specified in Article 10 of the General Conditions. 2) Salaries or wages, plus fringe benefits routinely provided by the Design-Builder (including, as applicable, retirement, life insurance, medical insurance, sick leave, holiday pay, vacation, workers' compensation premiums, and other benefits required by law or by a current labor agreement), for all of the following Design-Builder employees for the time they are engaged in the Work: a. Field labor,including field superintendents; b. Employees directly involved in performing the Work stationed at the Design-Builder's field office and scheduling personnel and others stationed at the Design-Builder's corporate office or any other location who are pre-approved by the City; and c. Employees engaged at the shops or on the road in expediting the production or transportation of materials or equipment required under the Agreement. 3) "Casual overtime" costs (overtime that is sustained for less than 7 consecutive days) may be incurred at the Design-Builder's sole discretion. The Design-Builder must obtain City approval prior to incurring all other overtime costs,including those incurred while performing additional work directed by the City or as incurred by the Design-Builder working crews on an "extended overtime" schedule (overtime that is sustained for more than seven consecutive days). Notwithstanding the foregoing,delay by the Design-Builder will not be excused merely because the City declines to approve reimbursement of overtime costs. 4) Costs pertaining to Design-Builder-furnished insurance (excluding Subcontractor default insurance) or self-insurance and bonds, including premiums and the cost of any deductibles, self-insured retentions, loss above coverage limits, co-pay percentages, claim handling, administration, enrollment, or management costs or expenses, and broker fees under the Design-Builder's insurance program. Costs of Subcontractor bonds provided that the furnishing of such bonds is subject to the prior written approval of the City. Costs of Subcontractor default insurance (e.g., Subguard) are subject to the prior written approval of the City. 5) Subsistence and travel for the Design-Builder's salaried employees normally stationed in the field office when those employees are required to travel and remain out of the Portland metropolitan area overnight in direct performance of the Work under the Agreement,but only with the City's prior written approval and subject to any limitations or restrictions the City may impose in giving its approval. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 6) Field office supplies and services,including office supplies, telephone,postage, reproduction, photographs, and field office data processing equipment. 7) Equipment,materials, supplies, consumables and services procured,purchased and utilized in the performance of the Work as required to protect the safety and health of all persons who may be exposed to the hazards of construction. This includes the cost of first aid supplies, temporary fire protection and the cost of administering the Design-Builder's safety program, including safety lunches and safety incentive payment programs, but excludes the cost of material rewards such as shirts, jackets,hats, etc. S) Temporary facilities and services at the Work site,including the job shack and other structures, sanitation, debris removal, roads, heat,light,water, air, and weather protection. 9) For that portion of the Work described as Craft Services,the Design-Builder may use Design- Builder -furnished craft labor approved by the City and brought on early in the Project. The City will reimburse the Design-Builder for this labor for the direct cost of wages,payroll taxes, and fringe benefits. 10) Materials, expendable supplies, consumables, and hand tools necessary to complete self- performed Work which Design-Builder did not otherwise own,and their transportation to the Work site. 11) Costs of removal and proper disposal of debris from the Work site. 12) Fees for laboratories for testing required by the Design-Build Documents,except those related to Defective Work. 13) Licenses, royalties, bond premiums, and sales or similar taxes that the Design-Builder is required by law to pay and are in effect as of the effective date of the Agreement, other than personal property taxes on the Design-Builder 's construction equipment and the Design- Builder's income taxes. If the entire amount is allocable to the Work, then the Design-Builder will be entitled to reimbursement of the entire amount. If only part of the amount is allocable to the Work, then the Design-Builder will be entitled to a prorated reimbursement based on the proportion of the amount allocable to the Work. 14) Reimbursement for use of Design-Builder-owned equipment and rental of equipment owned by third party equipment vendors while the equipment is engaged in the Work,plus fuel and routine maintenance costs. Equipment rental rates will be the lowest of. The Design-Builder's established company rates,actual rental rates,or the rates in effect in each section of the Rental Rate Blue Book on the Work Start Date. Rental rates will be calculated hourly, daily, weekly, or monthly,as appropriate based on the duration of the use of the equipment.The rate which results in the lowest charge for equipment use will be applied. Rates will be adjusted annually after the anniversary date of the Work Start Date to reflect published revisions of the Rental Rate Blue Book. a. The Rental Rate Blue Book denotes discontinued models by showing a star next to the model number. Many manufacturers continue the same model number through successive years. In the event the City and the Design-Builder are unable to distinguish discontinued models from current models having different rates in the Rental Rate Blue Book, the lower rate applies. In the event a rate is not given for either a new model or an older model, a rate for the most similar model in the Rental Rate Blue Book will be used. Such characteristics as manufacturer, capacity, horsepower, and fuel will be used as the basis for selecting a similar model. b. In the event a rate has not been established for a particular equipment category in the Rental Rate Blue Book, the Design-Builder will call the Equipment Watch company for written documentation of a rental rate on the equipment and present it to the City DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 for approval before use of the equipment. 15) The City generally does not make progress payments for materials stored offsite or pay financing costs pending their reimbursement but may make exceptions in some circumstances. Subject to the City's approval in advance and in writing of the circumstances and conditions, such as location, insurance, clear tide, and risk of loss, progress payments may be made for materials stored offsite. 16) All permits for the Work normally obtained by and paid for by the Design-Builder,including those required for bidder-designed work, excluding building permits. 17) Preparing and obtaining reports, schedules, manuals, Drawings, Specifications, related data processing services, and other documents that are not furnished by the City but are necessary for the performance of the Work as specified in the Agreement Documents. 18) The cost of repairing damaged Work or damage to City property as requested by the City, except: a. To the extent the cost of repair is covered by insurance; b. To the extent covered by warranty obligations of the Design-Builder or those for whom Design-Builder is responsible; c. To the extent caused by faulty, deficient, or defective workmanship or the negligence or willful misconduct of Design-Builder or those for whom Design-Builder is responsible; d. To the extent the cost of repair is covered by warranty provisions to include rework and faulty workmanship; e. To the extent the Design-Builder recovers the cost of repairs from Subcontractors; or f. To the extent the damage is the result of one or more breaches of the Agreement. 19) Costs of Design-Builder's field office computer services (hardware and software) and other outside computer processing services expended in direct performance of the Work, but only to the extent such costs are approved in writing in advance by the City. 20) Other costs incurred in the performance of the Work if,and to the extent,approved in writing in advance by the City. 5. Costs not Reimbursable A. The following is a non-exclusive list of categories of costs for which the Design-Builder is not entitled to reimbursement as the Cost of the Work, and which are deemed to be accounted for in the Design-Builder's Percentage Fee: 1) The salary of individuals who are officers of the Design-Builder, or of individuals employed in the Design-Builder's office(s) other than the field office, except as provided in Subsection 4. A 2) a. 2) Corporate overhead and general and administrative costs. 3) Interest on capital. 4) Profit. 5) Preparation of the Design-Builder's response to the City's request for proposals for the Project. 6) Legal costs. 7) Prorated cost of the public works bond that design-builders generally must file with the Construction Design-Builders Board (CCB), as provided in ORS 279C.836. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 8) Subcontractor costs arising out of or related to Defective Work. 9) Costs related to corrective Work and warranty Work. The Design-Builder will diligently pursue and,whenever possible, enforce the performance of corrective Work obligations and warranty repairs under the terms of its Subcontracts and purchase agreements. If the Design- Builder is unable to enforce the terms of a corrective obligation or warranty directly with a Subcontractor or vendor or with its bonding company, costs related to corrective Work or warranty Work will not be reimbursed by the City. 10) Any cost due to the negligence or failure of the Design-Builder and Subcontractors (including but not limited to Designer), or anyone directly or indirectly employed by any of them or for whose acts or omissions any of them may be liable, to fulfill a specific responsibility of the Agreement. 11) Costs incurred prior to the City's approval of Design-Build Documents when the Design- Build Documents require such approval. 12) Costs incurred in excess of the City's limitations or contrary to the City's limitations or instructions when such instructions or limitations are imposed pursuant to the Design-Build Documents. 13) Costs of Subcontractor default insurance (e.g., Subguard) and Subcontractor bonds, except when such costs are approved in advance by the City. 14) Costs related to home computers, software subscriptions or renewals, and other outside computer processing services not physically located at the Project site office. 15) Costs expressly excluded from the Cost of the Work by the Design-Build Documents. 16) Otherwise reimbursable costs in excess of the Guaranteed Maximum Price. B. Any conflict between Section 4 ("Cost of the Work") and this Section 5 ("Costs Not Reimbursable") will be resolved in favor of Section 5. 6. Collaboration The Parties intend, through this Agreement, to establish a collaborative environment where Parties have any opportunity to contribute their best efforts for the benefit of the Project as a whole rather than the benefit of individual Parties. The Parties agree to work together to create a culture of open and honest communication. The Parties agree to resolve disputes at the lowest level possible, including the dispute resolution provision in this Agreement. The Parties agree to integrate the design and construction teams as early as possible. 7. Scope of Services A. The Design-Builder must provide all things necessary for the complete performance of the Work, which includes, but is not limited to, Preliminary Engineering, Construction Document development, and, at the sole direction of the City, Design Development, or preparation of the Construction Proposal. B. Upon execution of a Guaranteed Maximum Price (GMP) Amendment, if any, the Work may include, but not necessarily limited to, Final Design, Construction Document development, and performance of construction Work for identified project(s). Further,a GMP Amendment may be executed by the Parties for Design Development, Construction Documents, and performance of the Construction Work for subsequent Subprojects,as requested by the City. C. All Work must be performed in accordance with the terms of the Agreement. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 8. Contract Documents This Agreement consists of the main text of this Design-Build Agreement and the following attachments and exhibits: A. Attachment A, Performance Bond B. Attachment B, Payment Bond C. Attachment C, Statutory Public Works Bond D. Attachment D, COVID-19 Vaccination Attestation E. Exhibit 1,Design-Build General Conditions F. Exhibit 2, Guaranteed Maximum Price Amendment G. Exhibit 3, Scope of Work H. Exhibit 4, Compensation In addition,the following documents are part of the Design-Build Documents and are binding on the Parties: I. Any written Amendments to this Agreement signed by the Parties; J. Change Orders and Change Directives; K. Notice to Proceed L. Construction Documents,as they are developed by the Design-Builder and approved by the City. The City Engineer, or designee, will resolve any discrepancies between these documents. The following order of precedence (highest to lowest) applies to any review by the City Engineer or reviewing court. The terms of this Agreement and all exhibits, as set forth in Section 8, control over any inconsistent provision of any document other than a Change Order because this Agreement was prepared by the City Attorney's office and other documents may be prepared by consultants or other third parties who are not aware of the City's contract policies. 1) Authorized Change Orders. 2) This Agreement,including exhibits. 3) Project Specifications. 4) Project Drawings. 5) City of Tigard Standard Drawings. 6) OSS Standard Drawings. 7) Figure dimensions, and dimensions that can be computed, on plans shall take precedence over scale dimensions. Nothing in this Agreement shall be considered as an acceptance of the terms of the proposal if the terms of the proposal conflict or are otherwise incompatible with the express terms contained in this Agreement and subsequent exhibits and documents or in the City's Request for Proposals. Design-Builder acknowledges that it has or has access to all the Agreement documents referred to in this Section and agrees to comply with all the Agreement documents. 9. Submittals and Ownership of Plans and Documents A. Agreement Documents, Shop Drawings, and Other Submittals Construction Documents, Shop Drawings and other submittals related to the Work must be DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 prepared by a licensed professional and must bear such design professional's stamp and signature. The City is entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals. B. The Design-Builder must direct specific attention, in writing or on resubmitted design and Construction Documents or other submittals such as Shop Drawings, Product Data, Samples or similar submittals, to revisions other than those requested by the City on previous submittals. In the absence of such written notice, the City's approval of a resubmission will not apply to such revisions. C. The field notes, design notes, and original drawings of the construction plans, as instruments of service, are the property of Design-Builder; however, the City may request, at no additional cost, one set of previously approved reproducible drawings, as well as storage device such as thumb drive or SD card in "DWG" or "DXF" format, of the original drawings of the work. The City has unlimited authority to use the materials received from Design-Builder in any way the City deems necessary. D. The City may make copies, for the use of and without cost to Design-Builder, of all of its maps, records, laboratory tests, or other data pertinent to the work to be performed by the Design- Builder pursuant to this Agreement, and also make available any other maps, records, or other materials available to the City from any other public agency or body. E. The Design-Builder will furnish to the City, copies of all maps, records, field notes, and soil tests which were developed in the course of work for the City and for which compensation has been received by Design-Builder at no additional expense to the City, except as provided elsewhere in this Agreement. 10. Examination of the Scope and the Site By executing this Agreement,the Design-Builder represents that its representatives have reviewed the City's Scope of Work and visited the Project site, become familiar with the local conditions under which the Work is to be completed, correlated their personal observations with the requirements of the Agreement, and confirmed that the information contained in the City's Scope of Work complies with applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities. 11. Design-Builder's Duties and Status A. The Design-Builder recognizes the relationship of trust and confidence established between the Design-Builder and the City by the Agreement. With respect to all construction activities, the Design-Builder will furnish its best skill, judgment, and cooperation in furthering the interests of the City. With respect to all design and professional service activities, the Design-Builder will apply the technical knowledge and skill applied by similar designers and professionals in good standing where the Project is located. B. The Design-Builder must comply with any applicable licensing requirements in the jurisdiction where the Project is located,including but not limited to ORS 701.026(1). C. The Design-Builder must perform the Work in accordance with the Design-Build Documents. The Design-Builder is not relieved of the obligation to perform the Work in accordance with the DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Design-Build Documents by the activities, tests,inspections, or approvals of the City. D. The Design-Builder agrees to furnish efficient business administration and superintendence, to use every effort to keep an adequate supply of design professionals, workers, and materials on hand at all times, and to perform construction activities for the Work in the best and most sound way and in the most expeditious and economical manner consistent with the interests of the City. E. The Design-Builder's Designer must perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project. The Design-Builder will cooperate with the City Engineer or designee and Owner's Representative and utilize the Design- Builder's professional skill, efforts and judgement in furthering the interests of City; to furnish efficient business administration and supervision; to furnish at all times an adequate supply of workers and materials; and to perform the Work in conformance with the terms and conditions of the Design-Build Documents in an expeditious and economical manner consistent with the interests of City. F. When the Design-Build Documents require that a Subcontractor provide design professional services or certifications related to materials or equipment, or when the Design-Builder in its discretion provides such design services or certifications through a Subcontractor, the Design- Builder will cause such design professional services or certifications to be provided by a properly licensed design professional,whose stamp and signature must appear on all drawings,calculations, specifications, and certifications. 12. Pre-Construction Design Phase A. Any information submitted by the Design-Builder, and any interim decisions made by the City, will be for the purpose of facilitating the design process and will not modify the Scope of Work or Design-Builder's proposal unless the City and Design-Builder execute a Change Order, or the City issues a Change Directive specifically identifying the change to the City's Scope of Work. B. The Pre-Construction Design Phase consists of the following subphases, as directed by the City in writing, for any or all or a combination of Subprojects, at the sole discretion of the City. The City may authorize Design-Builder to proceed on one or more subphases for one or more Subprojects, sequentially or simultaneously, in consultation with Design-Builder (together, "Pre- Construction Design Phase"): 1) Preliminary Engineering 2) Construction Document Development 3) Construction Proposal. Each of these subphases is further defined below. Throughout this Pre-Construction Phase,the Design-Builder will advise the City on proposed site use and improvements,designs,permitting requirements, and selection of materials. The Design- Builder must also provide the City with recommendations, consistent with the City's Scope of Work, on constructability; availability of materials and labor;time requirements for procurement, design options, installation, and construction; and factors related to construction cost including, but not limited to, costs of alternative designs or materials, preliminary budgets, life-cycle data, and possible cost reductions. C. Preliminary Engineering DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 1) The Preliminary Engineering phase may include review and validation of previous engineering, documents, concept development, alternatives analysis, and site reconnaissance to support preliminary engineering efforts, as further specified in the Scope of Work. Preliminary Engineering may also include initiation of research, studies, and alternatives analysis deemed necessary to support concept design as detailed in the Scope of Work prepared by the City in consultation with the Design-Builder, as well as preparation of a proposed price and schedule, and be consistent with the Design-Builder's Proposal except as specifically modified by the Scope of Work. 2) The Design-Builder will schedule and conduct meetings with the City and any other necessary individuals or entities to discuss and review the Scope of Work to establish Design-Builder's preliminary evaluation of the Project or Subproject(s) and to provide any and all preliminary engineering required to design the Project, as detailed in the Scope of Work or determined by the Design-Builder, in consultation with the City, to be necessary to complete preliminary engineering for the Project. Any technical analysis or evaluation deemed necessary by the Design-Builder outside the approved scope of work will be performed at the Design-Builder's own expense unless the City and Design-Builder execute a Change Order, or the City issues a Change Directive specifically identifying the change to the Scope of Work. 3) Preliminary Engineering will result in a written report from the Design-Builder to the City for review. 4) The City will review the Design-Builder's written report and,if acceptable,provide the Design- Builder with written consent to proceed for any or all Subproject(s) or portions thereof. The City may, in its sole discretion, provide written consent to proceed for any, all, or a combination of Subproject(s), and direct the Design-Builder to proceed under any Pre- Construction Design Phase of this Section 12 for any Subproject(s) or portion thereof, or to continue with Preliminary Engineering under this Section. For any Subproject for which the City has not provided written consent to proceed, Design-Builder will continue Preliminary Engineering unless otherwise directed by the City. The consent to proceed may include the City's direction on what documents the Design-Builder will prepare in the Construction Document Development subphase.The consent to proceed will not be understood to modify the Scope of Work unless the City and Design-Builder execute a Change Order or the City issues a Change Directive specifically identifying the change to the Scope of Work. D. Construction Document Development 1) Upon the City's issuance of a written consent to proceed for any Subproject(s) or portion(s) thereof,the Design-Builder will prepare and submit to the City for the City's written approval Construction Documents as specified in the written consent to proceed,sufficient to construct the Subproject(s), including but not limited to Drawings and Specifications. Deviations, if any, from the Preliminary Engineering or any other materials previously provided must be disclosed in writing and are subject to the approval of the City. 2) Development and review of the Construction Documents including drawings, specifications and any required supplementals are pursuant to the written direction of the City: a. Site plans, studies,pipeline alignments &profiles; b. 30%, and 60% design; an updated schedule, including proposed design milestones; dates for receiving additional information from, or for work to be completed by the City; anticipated date for the Design-Builder's Construction Proposal; and dates of periodic design review sessions with the City; DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 c. Outline specifications or sufficient drawing notes describing construction materials; and d. Comprehensive written estimate of the cost to design and construct the Project based upon the current Design Development documents. Such written estimates must be submitted with the respective Design Development documents. 3) The Construction Documents must establish the quality levels of materials required. The Construction Documents must be consistent with the Design-Build Documents,including but not limited to the Scope of Work, and Preliminary Engineering,unless otherwise disclosed in writing, and must include all items necessary for the proper execution and completion of the Work and reasonably inferable from the Design-Build Documents, including but not limited to the Scope of Work, as being necessary to produce the indicated results. 4) The Design-Builder must submit completed Construction Documents to the City for the City's approval. If the City discovers any deviations between the Construction Documents and the Design-Build Documents not previously disclosed by Design-Builder, the City will promptly notify the Design-Builder of such deviations in writing. Unless the City and Design- Builder execute a Change Order or the City issues a Change Directive specifically identifying the particular deviation and City's agreement with such deviation, the Design-Builder must correct the deviation and resubmit the Construction Documents. The Construction Documents may not modify the Design-Build Documents, including but not limited to the Scope of Work, or Preliminary Engineering. Acceptance of the Design Documents will not constitute the City's acceptance of a deviation unless the deviation is specifically identified by the Design-Builder or included in a Change Order or Change Directive. 5) The City, Design-Builder, and its Designer will meet a minimum of twice a month until the completion of the milestone construction document submittal, as described in the City's written consent to proceed for this phase, for the Work to review scope, quality, budget, and other issues. 6) Before completion of the Construction Documents for the Work, the City, Design-Builder, and its Designer will perform an internal review of the Construction Documents,the Design- Builder's schedule and any critical issues relating to scope, quality, or budget. In addition to delivering to City copies of the Construction Documents for the Work, including but not limited to Drawings and Specifications, Design-Builder and Designer will make reasonable efforts to demonstrate to the City the scope and quality aspects of the design. 7) At the completion of the City's,Design-Builder's,and its Designer's Construction Documents review, the City will provide its written approval of the Construction Documents, including any revisions thereto made during the internal review. However, review or approval by City or its agents of design and Construction Documents does not relieve Design-Builder to the extent of its liability for any damages resulting from or arising out of professional errors or omissions in the design and Construction Documents, except where City expressly directs such defective or deficient design and Design-Builder delivers to City its written objection thereto. Upon the City's written approval of Construction Documents, the Design-Builder, with the assistance of the City, will prepare and file documents required to obtain necessary approvals of governmental authorities having jurisdiction over the Project. 8) If required by City, the Design-Builder will obtain from each of the Design-Builder's professionals and furnish to the City certifications with respect to the documents and services provided by such professionals: (a) that,to the best of their knowledge,information and belief, the documents or services to which such certifications relate (i) are consistent with the Scope of Work set forth in the Design-Build Documents, except to the extent specifically identified in such certificate, (ii) comply with applicable professional practice standards, and (iii) comply DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 with applicable laws, ordinances, codes, rules, and regulations governing the design of the Project in effect at the time of the applicable permit; and (b) that the City and its consultants are entitled to rely upon the accuracy of the representations and statements contained in such certifications. 9) In the sole discretion of the City,the City may elect to accept the Construction Documents as the Design-Builder's final submittal for any Subproject or the City may issue a written notice to proceed under any Pre-Construction Phase of this Section 12 for any Subproject(s) or portion thereof, or to continue with Construction Document Development for any or all Subproject(s). E. Design-Builder's Construction Proposal 1) Upon the City's issuance of a written consent to proceed for any Subproject(s) directing the Design-Builder to proceed to this phase, the Design-Builder must prepare and submit to the City a proposal for completion of design and construction of the Subproject(s) for which the City has given consent to proceed and requested a Construction Proposal. The Design- Builder's Construction Proposal must include the following as set forth in the written consent to proceed or otherwise determined in writing by the City: a. Either: 1. A list of preliminary Construction Documents and other information, including the Design-Builder's clarifications, assumptions, and deviations from the Scope of Work, upon which the Design-Builder's Construction Proposal is based; or 2. A list of Construction Documents prepared by the Design-Builder under the Construction Document Design subphase the Design-Builder will use for construction of the Subproject(s). b. The proposed Guaranteed Maximum Price for construction of the Subproject(s), including a written statement of the estimated Cost of the Work organized by trade categories, allowances, contingency, Design-Builder's Percentage Fee as proposed in Design-Builder's Proposal,and other items that comprise the Guaranteed Maximum Price in such detail and with such substantiation as City may reasonably require; c. An enumeration of any assumptions and exclusions,if applicable; d. A list of Design-Builder's key personnel, Subcontractors, and suppliers; e. The date on which the Design-Builder's Construction Proposal expires,which date must be at least 90 days after submission of the Design-Builder's Construction Proposal to the City; and f. The Design-Builder's proposal,if any,for self-performed work and work to be performed by Subcontractors without a competitive process, pursuant to Article 6.13 of the General Conditions ("Procurement Plan"). 2) Upon the City's receipt of Design-Builder's Construction Proposal, the City and the Design- Builder agree to negotiate in good faith regarding the terms and conditions of the GMP Amendment, including but not limited to the amount of the adjustment to the Guaranteed Maximum Price. Without limiting the City's right to terminate this Agreement,if the City and the Design-Builder are unable to agree on the terms and conditions of the GMP Amendment, the City will have the right to one or more of the following actions: DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 a. Terminate this Agreement pursuant to the General Conditions; b. Terminate negotiations for the GMP Amendment; c. Terminate Design-Builder's work for the subproject for which a GMP Amendment was under negotiation; d. Direct Design-Builder to prepare Construction Documents for 100% design under Section 12.D. for the Subproject for which a GMP Amendment was under negotiation;or e. Continue this Agreement for the remaining Design Work, or other continuation of the Work under this Agreement,in the City's sole discretion. 3) If the City terminates the Agreement or any portion thereof,then (1) the City will continue to have the rights and obligations set forth in Section 9 regarding the ownership and use of the Work Product, and (2) the City may obtain an assignment of some or all of the subcontracts and purchase orders (including but not limited to agreements with Designers). The amount of time allotted for negotiations and the timing of any termination will be determined in the City's sole discretion. 4) If the City and the Design-Builder agree on the terms and conditions of the GMP Amendment, the City and Design-Builder will execute the GMP Amendment in the form set forth in Exhibit 2 with the blanks and other information completed in the normal course. 13. Construction Phase A. Design Development 1) Unless Final Stamped for Construction Documents were prepared under Subsection 12. E, upon execution of the GMP Amendment, the Design-Builder will prepare and submit to the City for the City's written approval Construction Documents sufficient to construct the Subproject(s), or portions thereof, as directed by the City, including but not limited to Drawings and Specifications. Deviations,if any, from the Preliminary Engineering,previously prepared Construction Documents, or Scope of Work must be disclosed in writing and are subject to the approval of City. 2) The Construction Documents must establish the quality levels of materials required. The Construction Documents must be consistent with the Design-Build Documents,including but not limited to the Scope of Work, previously prepared Construction Documents, and Preliminary Engineering, unless otherwise disclosed in writing, and must include all items necessary for the proper execution and completion of the Work and reasonably inferable from the Design-Build Documents, including but not limited to the Scope of Work, as being necessary to produce the indicated results. 3) The Design-Builder must submit completed Construction Documents to the City for the City's approval. If the City discovers any deviations between the Construction Documents and the Design-Build Documents not previously disclosed by Design-Builder, the City will promptly notify the Design-Builder of such deviations in writing. Unless the City and Design- Builder execute a Change Order or the City issues a Change Directive specifically identifying the particular deviation and City's agreement with such deviation, the Design-Builder must correct the deviation and resubmit the Construction Documents. The Construction Documents may not modify the Design-Build Documents, including but not limited to the Scope of Work, previously prepared Construction Documents, or Preliminary Engineering. Execution of the GMP Amendment will not constitute the City's acceptance of a deviation unless the deviation is specifically identified and described as such in the GMP Amendment. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 The failure of the City to discover any such deviations will not relieve the Design-Builder of the obligation to perform the Work in accordance with the Design-Build Documents. 4) The City, Design-Builder, and its Designer will meet a minimum of twice a month until the completion of the Construction Documents for the Work to review scope, quality, budget, and other issues. 5) Before completion of the Construction Documents for the Work, the City, Design-Builder, and its Designer will perform an internal review of the Construction Documents,the Design- Builder's schedule, and any critical issues relating to scope, quality, or budget. In addition to delivering to City copies of the Construction Documents for the Work, including but not limited to Drawings and Specifications, Design-Builder and Designer will make reasonable efforts to demonstrate to the City the scope and quality aspects of the design. 6) At the completion of the City's,Design-Builder's,and its Designer's Construction Documents review, the City will provide its written approval of the Construction Documents, including any revisions thereto made during the internal review. However, review or approval by City or its agents of design and Construction Documents does not relieve Design-Builder to the extent of its liability for any damages resulting from or arising out of professional errors or omissions in the design and Construction Documents, except where City expressly directs such defective or deficient design and Design-Builder delivers to City its written objection thereto. Upon the City's written approval of Construction Documents, the Design-Builder, with the assistance of the City, will prepare and file documents required to obtain necessary approvals of governmental authorities having jurisdiction over the Project. 7) If required by City, the Design-Builder will obtain from each of the Design-Builder 's professionals and furnish to the City certifications with respect to the documents and services provided by such professionals: (a) that,to the best of their knowledge,information and belief, the documents or services to which such certifications relate (i) are consistent with the Scope of Work set forth in the Design-Build Documents, except to the extent specifically identified in such certificate, (ii) comply with applicable professional practice standards, and (iii) comply with applicable laws, ordinances, codes, rules, and regulations governing the design of the Project in effect at the time of the applicable permit; and (b) that the City and its consultants are entitled to rely upon the accuracy of the representations and statements contained in such certifications. B. Construction 1) Except as permitted in Subsection 13.B.2, construction may not commence prior to: (1) execution of the GMP Amendment, and (2) City's approval of the Construction Documents required for the Work Package. The Design-Builder may not perform construction Work prior to the City's review and approval of the Construction Documents required for the Work Package. In addition,the Design-Builder may not perform any portion of the Work for which the Design-Build Documents require the City's review of submittals, such as Shop Drawings, Product Data and Samples,until the City has approved each submittal. 2) If the City and Design-Builder agree in a Change Order or the City issues a Change Directive, construction may proceed prior to the execution of the GMP Amendment. However, such Change Order or Change Directive does not waive the City's right to reject the Design- Builder's Construction Proposal or otherwise limit City's rights and remedies under this Agreement. 3) The construction Work must be in accordance with approved submittals, including but not limited to the Construction Documents,except that the Design-Builder will not be relieved of responsibility for deviations from requirements of the Design-Build Documents by the City's DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 review and approval of design and Construction Documents or other submittals such as Shop Drawings, Product Data, Samples, or other submittals, unless the Design-Builder has specifically informed the City in writing of such deviation at the time of submittal and (1) the City has given written approval to the specific deviation as a minor change in the Work,or (2) a Change Order or Change Directive has been issued authorizing the deviation. The City's review and approval of design and Construction Documents or other submittals such as Shop Drawings, Product Data, Samples, or other submittals does not relieve the Design-Builder of responsibility for errors or omissions in those approved documents and submittals. 4) The Design-Builder will keep the City informed of the progress and quality of the Work. 5) The Design-Builder is responsible for the design,supervision,and direction of the Work,using the Design-Builder's best skill and attention. If the Design-Build Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Design-Builder must evaluate the jobsite safety of such means, methods, techniques, sequences, or procedures and, except as stated below,will be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences, or procedures. If the Design-Builder determines that such means, methods, techniques, sequences, or procedures may not be safe, the Design-Builder must give timely written notice to the City and may not proceed with that portion of the Work without further written instructions from the City. 6) The Design-Builder is responsible for inspection of any portions of Work already performed to determine that such portions are in proper condition to receive subsequent work. C. Unless otherwise provided in the Design-Build Documents,the Design-Builder must provide and pay for supervision, labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services, necessary for proper execution and completion of the Work, whether temporary or permanent, and whether or not incorporated or to be incorporated in the Work. D. The Design-Builder will include in the Guaranteed Maximum Price, as set forth in the GMP Amendment, all allowances, if any, stated in the Design-Build Documents. Items covered by allowances must be supplied for amounts and by persons or entities as the City may direct, but the Design-Builder will not be required to employ persons or entities to whom the Design-Builder has reasonable objection. E. The City reserves the right to perform construction, operations, or services related to the Project, and to furnish materials and equipment for the Project, with the City's own forces; and to award separate Agreements related to the Project,or other construction or operations on the site. If the Design-Builder claims that delay or additional cost is involved because of such action by the City, the Design-Builder must make a claim as provided in the General Conditions. 14. Assignment/Delegation Neither party may assign, sublet, or transfer any interest in or duty under this Agreement without the written consent of the other and no assignment has any force or effect unless and until the other party has consented. If City agrees to assignment of tasks to a subcontract, Design-Builder is fully responsible for the acts or omissions of any Subcontractors and of all persons employed by them. Neither the approval by City of any Subcontractor nor anything contained herein creates any contractual relation between the Subcontractor and City. The provisions of this Agreement are DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 binding upon and will inure to the benefit of the Parties to the Agreement and their respective successors and assigns. 15. Status of Design-Builder as Independent Contractor Design-Builder certifies that: A. Design-Builder acknowledges that for all purposes related to this Agreement, Design-Builder is an independent contractor as defined by ORS 670.600 and not an employee of City. Design- Builder is not entitled to benefits of any kind to which an employee of City is entitled and is solely responsible for all payments and taxes required by law. Furthermore, in the event that Design- Builder is found by a court of law or any administrative agency to be an employee of City for any purpose, City is entitled to offset compensation due, or to demand repayment of any amounts paid to Design-Builder under the terms of this Agreement, to the full extent of any benefits or other remuneration Design-Builder receives (from City or third party) as a result of said finding and to the full extent of any payments that City is required to make (to Design-Builder or to a third party) as a result of said finding. B. Design-Builder is not an officer, employee, or agent of the City as those terms are used in ORS 30.265. 16. Conflict of Interest The undersigned Design-Builder hereby represents that no employee of the City, or any partnership or corporation in which a City employee has an interest, has, or will receive any remuneration of any description from Design-Builder, either directly or indirectly, in connection with the letting or performance of this Agreement, except as specifically declared in writing. If this payment is to be charged against Federal funds, Design-Builder certifies that it not currently employed by the Federal Government and the amount charged does not exceed its normal charge for the type of service provided. IN WITNESS WHEREOF, City and Design-Builder have caused this Agreement to be executed by their duly authorized officials. Awarded by Tigard's Local Contract Review Board at their December 7`h, 2021 meeting. CITY OF TIGARD EMERY& SONS CONSTRUCTION GROUP,LLC DMUS11; d by: B Vann, VAUAa By: 5Y 3dF6F5fi7 f7dC9 y: Steve Rymer Dan vannoy Name: Name: Title: city Manager Title: Member/Manager 12/16/2021 12/13/2021 Date: Date: X DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 ATTACHMENT A CITY OF TIGARD-PERFORMANCE BOND RESERVOIR 18 AND PUMP STATION Bond Number: Project Name: (Surety#1) Bond Amount No. 1: $ (Surety#2)* Bond Amount No. 2:* $ *If using multple sureties Total Penal Sum of Bond: $ We, as Principal, and the above identified Surety(ies), authorized to transact surety business in Oregon, as Surety,hereby jointly and severally bind ourselves,our respective heirs,executors,administrators,successors,and assigns firmly by these presents to pay unto the City of Tigard, a municipality of the State of Oregon, the sum of(total Penal Sum of Bond) (Provided, that we the Sureties bind ourselves in such sum `jointly and severally" as well as "severally" only for the purpose of allowing a joint action or actions against any or all of us,and for all other purposed each Surety binds itself, jointly and severally with the Principal, for the payment of such sum only as is set forth opposite the name of such Surety), and WHEREAS,the Principal has entered into a Contract with the City of Tigard,the plans, specifications, terms, and conditions of which are contained in the above-referenced project solicitation; WHEREAS, the terms and conditions of the Contract, together with applicable plans, standard specifications, special provisions, schedule of performance, and schedule of Contract Prices, are made a part of this Performance Bond by reference,whether or not attached to the Contract (all hereafter called "Contract';and WHEREAS,the Principal has agreed to perform the Contract in accordance with the terms,conditions, requirements, plans, and specifications, and all authorized modifications of the Contract which increase the amount of the work, the amount of the Contract, or constitute an authorized extension of the time for performance,notice of any such modifications hereby being waived by the Surety: NOW, THEREFORE, THE CONDITION OF THIS BOND IS SUCH that if the Principal herein shall faithfully and truly observe and comply with the terms of the Contract and performs the Contract within the time prescribed by the Contract, then this obligation is null and void; otherwise, it shall remain in full force and effect. If the Contractor is declared by City to be in default under the Contract,the surety shall promptly remedy the default,perform all of Contractor's obligations under the Contract in accordance with its terms and conditions and pay to City all damages that are due under the Contract. This obligation jointly and severally binds the Contractor and surety and their respected heirs, executors, administrators, and successors. Nonpayment of the bond premium shall not invalidate this bond,nor shall the City of Tigard be obligated for the payment of any premiums. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Said surety for value received,hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Contract, or the Work to be performed thereunder, or the specifications accompanying the same shall in anywise affect its obligations on this bond, and it does hereby waive notice of any such change,extension of time,alteration,or addition to the terms of the Contract or to the Work or to the specifications. This Performance Bond shall also guarantee the subject project against defects in materials or workmanship for a period of one (1)year from the date of written Substantial Completion acceptance of the subject project by the City of Tigard. IN WITNESS WHEREOF, WE HAVE CAUSED THIS INSTRUMENT TO BE EXECUTED AND SEALED BY OUR DULY AUTHORIZED LEGAL REPRESENTATIVES. Dated this day of , PRINCIPAL: By: Signature Printed Name &Title Attest: SURETY: (Add signatures for each surety if using multiple bonds BY ATTORNEY-IN-FACT: (Power-of-Attorney must accompany each surety bond Name Signature Address City State Zip Phone Fax DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 ATTACHMENT B CITY OF TIGARD-PAYMENT BOND RESERVOIR 18 AND PUMP STATION Bond Number: Project Name: (Surety#1) Bond Amount No. 1: $ (Surety#2)* Bond Amount No. 2:* $ *If using multiple sureties Total Penal Sum of Bond: $ We, as Principal, and the above identified Surety(ies), authorized to transact surety business in Oregon, as Surety,hereby jointly and severally bind ourselves,our respective heirs,executors,administrators,successors,and assigns firmly by these presents to pay unto the City of Tigard, a municipality of the State of Oregon, the sum of(total Penal Sum of Bond) (Provided, that we the Sureties bind ourselves in such sum "jointly and severally" as well as "severally" only for the purpose of allowing a joint action or actions against any or all of us,and for all other purposed each Surety binds itself, jointly and severally with the Principal, for the payment of such sum only as is set forth opposite the name of such Surety), and WHEREAS,the Principal has entered into a Contract with the City of Tigard,the plans, specifications, terms, and conditions of which are contained in above-referenced project solicitation; WHEREAS, the terms and conditions of the Contract, together with applicable plans, standard specifications, special provisions, schedule of performance, and schedule of Contract Prices, are made a part of this Payment bond by reference, whether or not attached to the Contract (all hereafter called "Contract');and WHEREAS,the Principal has agreed to perform the Contract in accordance with the terms,conditions, requirements, plans, and specifications, and schedule of Contract Prices which are set forth in the Contract and any attachments, and all authorized modifications of the Contract which increase the amount of the work, or the cost of the Contract, or constitute authorized extensions of time for performance of the Contract,notice of any such modifications hereby being waived by the Surety: NOW,THEREFORE,THE CONDITION OF THIS BOND IS SUCH that if the Principal shall faithfully and truly observe and comply with the terms,conditions,and provisions of the Contract,in all respects, and shall well and truly and fully do and perform all matters and things to be performed under said Contract and any duly authorized modifications that are made,upon the terms set forth therein,and within the time prescribed therein, or as extended therein as provided in the Contract,with or without notice to the Sureties, and shall indemnify and save harmless the City of Tigard its officers, agents, and employees against any claim for direct or indirect damages of every kind and description that shall be suffered or claimed to be suffered in connection with or arising out of the performance of the Contract by the Contractor or its subcontractors, and shall promptly pay all persons supplying labor,materials, or both to the Principal or its subcontractors for prosecution of the work provided in the Contract;and shall promptly pay all contributions due the State Industrial Accident Fund and the State Unemployment Compensation Fund from the Principal or its subcontractors in connection with the performance of the DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Contract;and shall pay over to the Oregon Department of Revenue all sums required to be deducted and retained from the wages of employees of the Principal and its subcontractors pursuant to ORS 316.167, and shall permit no lien nor claim to be filed or prosecuted against the City on account of any labor or materials furnished; and shall do all things required of the Principal by the laws of the State of Oregon, then this obligation shall be void;otherwise,it shall remain in full force and effect. Nonpayment of the bond premium will not invalidate this bond,nor shall the City of Tigard be obligated for the payment of any premiums. IN WITNESS WHEREOF, WE HAVE CAUSED THIS INSTRUMENT TO BE EXECUTED AND SEALED BY OUR DULY AUTHORIZED LEGAL REPRESENTATIVES. Dated this day of , PRINCIPAL: 8N-: Signature Printed Name &Title Attest: SURETY: (Add signatures for each surety if using multiple bonds) BY ATTORNEY-IN-FACT: (Power-of-Attorney must accompany each surety bond) Name Signature Address City State Zip Phone Fax DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 ;taChment C STATE OF OREGON �..._ STATUTORY PUBLIC WORKS BOND Surety bond#: CCB#(if applicable): We, ,as principal,and a corporation qualified and authorized to do business in the State of Oregon, as surety, are held and firmly bound unto the State of Oregon for the use and benefit of the Oregon Bureau of Labor and Industries (BOLI)in the sum of thirty thousand dollars($30,000)lawful money of the United States of America to be paid as provided in ORS chapter 279C,as amended by Oregon Laws 2005,chapter 360,for which payment well and truly to be made,we bind ourselves,our heirs,personal representatives,successors and assigns,jointly and severally,firmly by this agreement. WHEREAS, the above-named principal wishes to be eligible to work on public works project(s) subject to the provisions of ORS chapter 279C, as amended by Oregon Laws 2005, chapter 360, and is, therefore, required to obtain and file a statutory public works bond in the penal sum of$30,000 with good and sufficient surety as required pursuant to the provisions of section 2, chapter 360, Oregon Laws 2005,conditioned as herein set forth. NOW, THEREFORE, the conditions of the foregoing obligations are that if said principal with regard to all work done by the principal as a contractor or subcontractor on public works project(s), shall pay all claims ordered by BOLI against the principal to workers performing labor upon public works projects for unpaid wages determined to be due, in accordance with ORS chapter 279C, as amended by Oregon Laws 2005,chapter 360, and OAR Chapter 839,then this obligation shall be void; otherwise to remain in full force and effect. This bond is for the exclusive purpose of payment of wage claims ordered by BOLI to workers performing labor upon public works projects in accordance with ORS chapter 279C,as amended by Oregon Laws 2005,chapter 360. This bond shall be one continuing obligation, and the liability of the surety for the aggregate of any and all claims which may arise hereunder shall in no event exceed the amount of the penalty of this bond. This bond shall become effective on the date it is executed by both the principal and surety and shall continuously remain in effect until depleted by claims paid under ORS chapter 279C, as amended by Oregon Laws 2005, chapter 360, unless the surety sooner cancels the bond. This bond may be cancelled by the surety and the surety be relieved of further liability for work performed on contracts entered after cancellation by giving 30 days' written notice to the principal,the Construction Contractors Board, and BOLI. Cancellation shall not limit the responsibility of the surety for the payment of claims ordered by BOLI relating to work performed during the work period of a contract entered into before cancellation of this bond. IN WITNESS WHEREOF,the principal and surety execute this agreement. The surety fully authorizes its representatives in the State of Oregon to enter into this obligation. SIGNED, SEALED AND DATED this day of 120 Surety by: Principal by: (Seal) Company Name Name Signature Signature Title (e.g.Attorney-in-Fact) Title Address Address City State Zip City State zip SEND BOND TO: Construction Contractors Board PO Box 14140 Salem,OR 97309-5052 Telephone: (503)378-4621 DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 ATTACHMENT D CONTRACTOR COVID-19 VACCINATION ATTESTATION City of Tigard Personnel Policy 80.0 COVID-19 Vaccination Requirement requires contractors must be full vaccinated for the COVID-19 virus or have a documented medical or religious exemption if the contractor personnel will (a) physically interact with Tigard staff or members of the public on behalf of the City in the course of performing work under the contract or (b) provide goods or perform services on-site at City buildings. If you are unsure whether the vaccination requirement applies to you, please contact your Tigard contract administrator/project manager to discuss further. By signing this form,l certify and attest to the following: ® I am authorized to sign this certification on behalf of contractor and am authorized to legally bind contractor. ® Contractor will not allow any unvaccinated employees,workers,or agents of the organization to perform any services or provide goods pursuant to this City of Tigard contract where such work includes (a) physically interacting with Tigard staff or members of the public on behalf of the City in the course of performing work under this contract or (b) provide goods or perform services on-site at City buildings. ® Contractor will ensure that any employees,workers, or agents of the organization engaged in work pursuant to this contract will adhere to any and all of the City's health and safety guidelines for the location where the work is performed, including wearing face coverings, distancing from others,and isolating or quarantining if exposed to or contracting COVID-19. ® Contractor understands and agrees that failure to comply with these requirements, which are hereby incorporated by reference as part of the terms and conditions in the Agreement,may result in the termination of contract for default. Dan vannoy Print Name 12/13/2021 Date DocuSigned by: S6B3�668D690d72.. Signature Rev. 11/21 DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 EXHIBIT 1 RESERVOIR 18 AND PUMP STATION GENERAL CONDITIONS FOR CONSTRUCTION DEFINITIONS For the purposes of this Agreement,terms are defined in this section,and may be defined in the Specifications or Drawings. Terms used in a defined sense normally are capitalized; terms used in a general or undefined sense normally are not capitalized. Unless the context clearly requires otherwise, or the term is expressly defined otherwise for a particular purpose, the following definitions apply throughout this Agreement. Act of God - A natural phenomenon of such catastrophic proportions or intensity as would reasonably prevent performance, and which could not have been prevented or escaped by any amount of foresight, reasonable degree of care, or by the aid of any equipment reasonably required under the circumstances. Agreement -The Design-Build Agreement for Reservoir 18 and Pump Station Project signed by the Parties and incorporating other documents establishing their respective rights and obligations concerning the Work. Ambiguities - Conflicts, errors,discrepancies, or inconsistencies. Amendment—A written material change to this Agreement that changes the Guaranteed Maximum Price. Business Day — Every official workday of the week that the City is open for business. These are the days between and including Monday through Friday and does not include public holidays and weekends. Change Directive -A written order prepared and signed by the City, directing a change before agreement on adjustment, if any, in the Guaranteed Maximum Price or Contract Time, or both. A Change Directive may state a proposed basis for adjustment,if any,in the Guaranteed Maximum Price or Contract Time, or both. C4—City of Tigard, Oregon. Change Order -A written amendment to this Agreement which authorizes an addition, deletion, or revision to the Work. COBID—State of Oregon's Certification Office for Business Inclusion and Diversity. Construction Documents—Documents necessary to complete construction,including but not limited to,the Drawings and Specifications prepared by the Design-Builder. Construction Proposal—Proposal prepared by Design-Builder for completion of design and construction of the Subproject(s) following the Pre-Construction Design Phase of the Work. Contract Time-The number of days between the Work Start Date established by the Notice to Proceed and the date by which Substantial Completion of all Work must be achieved under this Agreement. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Cost of the Work - Costs necessarily incurred by the Design-Builder in the performance of the Work in accordance with Section 7 of the Agreement. Craft Services—Work performed to further the physical construction of the Project that requires specialized training, for which the Parties elect not to enter into an early work agreement under Section 4.A.9 of the Agreement.These services may include site preparation and cleanup,setting up and moving access equipment, working on concrete and masonry, steel, wood, and pre-cast erecting projects, handling materials and equipment, or performing limited demolition, excavation, or compaction activities. Day or Calendar Day-Any 24-hour period beginning at midnight. Defective - (1) Unsatisfactory, faulty, or deficient, (2) not conforming to this Agreement, or (3) not meeting the requirements of any inspection,test,or approval required by this Agreement or federal, state,or local Law. Design Development-The design phase described in the Agreement. Design Services — The services provided by the Design-Builder or Lead Designer in the Pre-Construction Design Phase of the Project, described in Section 12 of the Agreement. Design-Build Documents—All documents,including exhibits and attachments,that make up this Agreement, and required submittals from the Design-Builder, including but not limited to the Agreement, the Scope of Work, Preliminary Engineering, Construction Documents, bonds, these General Conditions, wage rates, written consents to proceed to a subsequent subphase, and the Notice to Proceed. Design-Builder-The person or entity identified as such in the Agreement. Design-Builder's Percentage Fee —The fixed fees described in the Agreement for General Conditions and Cost of Work. Design-Builder's Construction Proposal - The Design-Builder's proposal for completion of design and performance of construction work on one or more Subprojects following Preliminary Engineering to be completed under a GMP Amendment. Design-Builder may submit one or more Construction Proposals for one or more Subprojects, as directed by the City.Unless specifically incorporated into the GMP Amendment (and then only to the extent such proposal relates to the scope of the Work), the Design-Builder's Construction Proposal is not part of the Design-Build Documents. Design-Builder's Proposal - The proposal Design-Builder submitted in response to the City's Request for Proposals for this Project Design-Builder's Representative - An individual authorized in writing by the Design-Builder to represent the Design-Builder with respect to this Agreement. Designer-A person or entity providing design services for the Design-Builder for all or a portion of the Work that is licensed to practice architecture or engineering in the State of Oregon. The Designer is referred to throughout the Agreement Documents as if singular in number, although there may be more than one Designer providing design services for the Design-Builder. Drawings - The graphic representations which show the character and scope of the Work to be performed, which have been prepared by Design-Builder and approved by the City in accordance with the Agreement. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Final Acceptance - The City's written acknowledgment that the Work has been fully completed and all Agreement-required documentation has been received and accepted. Guaranteed Maximum Price - The limit established in the Agreement on the City's obligation to pay the Design-Builder for (1) the Cost of the Work plus (2) the Design-Builder's Percentage Fee. Guaranteed Maximum Price Amendment - An amendment to the Agreement setting forth the City's and Design-Builder's agreement,if any, to the terms and conditions applicable to the Work following completion of the Preliminary Engineering, including but not limited to the adjustment to the Guaranteed Maximum Price. Law - Any statute, rule, regulation, ordinance, or order of any federal, state, or local government including, but not limited to, ordinances and resolutions adopted by the City Council of the City of Tigard, and rules and regulations adopted in accordance with those ordinances and resolutions. Maintenance Data - Manufacturer's catalog information, shop drawings, installation, operation, and maintenance manuals, and other information needed for operating,troubleshooting,preventive maintenance, repair, restoration, or overhaul of materials, products, systems, and equipment furnished or provided by the Design-Builder. Notice to Proceed - A written notice given by the City to the Design-Builder fixing the Contract Time and designating a date on which the Design-Builder is authorized to begin the Work under the Guaranteed Maximum Price Amendment. Preliminary Engineering - The documents created in the first phase of Design Services and prior to preparation of the Design-Builder's Construction Proposal as described in the Agreement. Product Data-Pictures,standard schedules,performance charts,instructions,brochures,diagrams,and other information furnished by the Design-Builder to illustrate a material, product, or system for some portion of the Work. Product Data are not Design-Build Documents. Project—The preconstruction work authorized in writing by the City, and any construction work authorized in writing by the City pursuant to a GMP Amendment or an early work agreement, to complete design and construction work,if any, of Reservoir 18 and Pump Station located in Tigard, OR. Project Manager - An individual authorized in writing by the City to represent the City with respect to this Agreement within the scope of the authority conferred by the written authorization from the Engineering Director. Rental Rate Blue Book - The book by that name published by Equipment Watch, Primedia Corp., 1735 Technology Drive, Suite 410, San Jose, California, 95110. Request for Proposals — The information published by the City soliciting proposals from third parties for completion of the Project. Samples - Physical examples of material, equipment, or workmanship which demonstrate and establish standards by which the Work will be judged. Samples are not Design-Build Documents. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Scope of Work-The program for the Project set forth in Exhibit 3,which includes initial information about the Project. These documents shall be evaluated and refined by the Design-Builder to develop the Preliminary Engineering. Shop Drawings - Diagrams, drawings, illustrations, instructions, and other data submitted by the Design- Builder to illustrate some portion of the Work. Shop Drawings are not Design-Build Documents. Specifications - Those written technical descriptions of materials, equipment, systems, standards, and workmanship prepared by the Design-Builder and approved by the City in accordance with the Agreement. Subcontractor-An individual or firm having a direct or indirect contract with the Design-Builder or with any other Subcontractor at any tier for the performance of a part of the Work, including but not limited to the Designer. Subproject—A portion of the Project separated out that may include early construction work,bid-packages, and additional project elements. Substantial Completion - Completion of the Work,or a part of the Work designated by the City in writing, in accordance with this Agreement, to the point where it may be utilized and occupied for the purpose for which it was intended. Work-The design services, supervision, labor,material, equipment, and services required by this Agreement. Work Start Date -The day stated in the Notice to Proceed when the Contract Time will begin to run in accordance with this Agreement. ARTICLE 1—TERMINOLOGY 1.1 Unless stated otherwise in this Agreement, words or phrases which have a well-known technical, construction industry, or trade meaning are used in accordance with such recognized meaning. 1.2 Unless stated otherwise in this Agreement, all requirements are directed to the Design-Builder. This includes statements which have no grammatical subject, as in "Install equipment plumb and level." 1.3 In the interest of brevity, this Agreement frequently omits modifying words such as "all" and "any" and articles such as "the" and "an,"but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. 1.4 The following terms are used in this Agreement: as allowed, as directed, as ordered, as required, acceptable, proper, reasonable, satisfactory, suitable. These items and any others of like effect or import describe direction, judgment, requirement, or review of the City. Such use is solely to evaluate the Work for compliance with this Agreement unless there is a specific statement otherwise. The use of such terms never indicates the City has authority to supervise or direct performance of the Work. 1.5 The words, "design," "furnish," "install," "perform," and "provide"have the following meanings for the purposes of this Agreement. When such verbs are not used in connection with services, materials, or equipment in a context clearly requiring an obligation on the part of the Design-Builder, "provide"is implied. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 A. Design means to perform architectural or engineering, or both, design professional services, including but not limited to planning, designing, observing, consulting, evaluating, and other related services, for the construction of the Work. B. Furnish means to supply and deliver services, materials, or equipment to the Work site (or other specified location) ready for use or installation and in usable or operable condition. C. Install means to put into use or place in final position services, materials, or equipment complete and ready for intended use. D. Perform or provide means to perform design services and furnish and install services, materials, or equipment complete and ready for intended use. ARTICLE 2—PRELIMINARY MATTERS City Representative 2.1 The City's Engineering ("Engineering Director") is authorized to represent the City with respect to this Agreement, provided that his authority to amend this Agreement is limited to the amount set by City policy. The Engineering Director will appoint a Project Manager in writing to exercise all or part of his authority. Although a person may have the title Engineering Director,such person shall have no responsibility for any engineering or architectural, or both, design aspects of the Work. Design-Builder's Representative 2.2 The Design-Builder shall authorize the Design-Builder's Representative to receive communications from the City and to sign the Design-Builder's communications to the City. The Design-Builder's Representative must be approved in writing in advance by the City. The City's approvals as required by this subsection will not be unreasonably withheld. Communications 2.3 In addition to the communication between the City's representative and the Design-Builder's Representative noted above, frequent informal communication will take place between City and Design- Builder employees to facilitate the Work. These communications may include Agreement enforcement and interpretation. If the Design-Builder concludes that any communication from the City appears that it will result in a change in Agreement Time or the Design-Builder's cost to complete the Work,the Design-Builder will request that the issue be presented in writing. Copies of Project Manual and Drawings 2.4 The City will provide the Design-Builder with digital copies of any documents referenced in Exhibit 3. Commencement of Contract Time 2.5 The Contract Time will commence to run on the Work Start Date stated in the Notice to Proceed. Starting the Work DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 2.6 The Design-Builder may start to perform the Work on the Work Start Date stated in the Notice to Proceed. Before Starting Work 2.7 Before the Design-Builder begins performance of the Work, one or more meetings as requested by the City will be held to establish a working understanding among the Parties. Procedures will be established for operations coordination and administrative communication for matters such as design reviews,submittals, clarifications and interpretations, and Change Orders; and for processing applications for payment. At the first meeting, the Design-Builder must submit to the City for review a Design Services progress schedule. After execution of the GMP Amendment, if any, Design-Builder must submit an updated design schedule and preliminary construction schedule, submittal schedule, a preliminary cash flow schedule, and a written site-specific safety and health plan. A. The Design Services progress schedule must be finalized and submitted to the City one week after the first meeting. The revised design schedule and preliminary construction schedule must be submitted to the City one week after the first meeting following execution of the GMP Amendment,if any. Unless specified otherwise, the progress schedules must indicate the Design- Builder's planned progress in increments of not more than seven-day periods. The schedule will not exceed the time limits current under the Design-Build Documents and will be subject to review and comment by the City. The Design-Builder must prepare and submit revisions to match actual and projected progress as requested by the City,before and during the course of design and construction, at no added cost to the City. The Design-Builder must adhere to the most recent version of the schedule. B. The preliminary submittal schedule must be finalized and submitted to the City one week after the first meeting following execution of the GMP Amendment, if any. The submittal schedule must demonstrate that submittals will be submitted in time to allow the City's review and comment and the Design-Builder's submission of revised submittals before the Work covered by the submittals is scheduled to start under the work progress schedule. The City's review of a submittal, shop drawings, product data, or samples is not conducted to determine the accuracy of details such as dimensions or quantities,or for substantiating instructions for installation or performance of equipment or systems. The submitting party remains responsible for accurate content in submitted documents,coordination with other trades,and confirming and correlating dimensions. Review is not approval of safety precautions, construction means, methods, techniques, sequences, or procedures. C. Prior to commencement of any physical construction Work, the Design-Builder must submit the contractor safety information form for safety planning purposes. The Design-Builder must also include applicable company policies, procedures, or plans. The City expects that the Design- Builder will abide by all Oregon OSHA requirements and the Design-Build Documents to provide for the safety of the Design-Builder's employees, City employees, tenants, and the general public. Work performed by Subcontractors must be on the form. Safety data sheets (SDS) for chemical products introduced to City premises will not be submitted with this information but will accompany the Design-Builder on site and be available to the City upon request. 2.8 Before undertaking each part of the Work, the Design-Builder must carefully study and compare this Agreement and check and verify pertinent figures shown therein and all applicable field measurements. The DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Design-Builder must promptly report in writing to the City any Ambiguities that the Design-Builder may discover. ARTICLE 3—DESIGN-BUILD DOCUMENTS Intent 3.1 This Agreement is complementary;what is called for by one element is as binding as if called for by all. 3.2 It is the intent of this Agreement to describe the Work. Any design services, supervision, labor, material, equipment, or service that may be reasonably inferred from this Agreement as being required to produce the intended result shall be supplied whether or not it is expressly specified. 3.3 The Design-Builder is expected to read the entirety of the Design-Build Documents and to seek clarification from the City of any Ambiguities found between,among or within the Design-Build Documents. Absent written clarification from the City to the contrary, the Design-Builder will, in resolving Ambiguities discovered either before or after original procurement or installation, provide the better quality of, and the greater quantity of, the Work. The Design-Builder must specifically notify all Subcontractors and suppliers of this requirement. 3.4 Clarifications and interpretations of this Agreement will be issued by the City. They will be consistent with or reasonably inferable from the overall scope of this Agreement. 3.5 This Agreement is unique. Design services,labor,material,equipment,or services approved for other City work may not necessarily be approved for this Agreement. 3.6 Pursuant to ORS 15.320, Oregon law applies to this Agreement. In the event ORS 15.320 is deemed invalid or inapplicable, the Parties agree that Oregon law applies to this Agreement. 3.7 If the Design-Builder's Construction Proposal is incorporated into this Agreement, any Ambiguities between the proposal and this Agreement will be resolved in favor of this Agreement. Any limitations of liability, waivers of damages, or disclaimers of warranty as to construction work or materials supplied or otherwise or liability contained in the Design-Builder's Construction Proposal will not apply to the Work or this Agreement. 3.8 If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future Laws effective during the terms of this Agreement or in subsequent dispute resolution proceedings, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected thereby. As to the illegal, invalid, or unenforceable clauses, they will be rendered void only to the extent of such illegal,invalid,and unenforceable portions,with the remainder of such clauses given full force and effect. Reference Standards 3.9 Unless expressly provided otherwise, references to standard specifications, manuals, or codes of any technical society, organization, or association, or to the codes of any governmental authorities, means the latest version or edition in effect on the effective date of this Agreement, except that all references to the Oregon Standard Specifications for Construction means the 2008 edition. Such reference may be specific or implied. No provision of any referenced standard specification, manual, or code changes the duties and DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 responsibilities of the City, the Design-Builder, or any of their employees, contractors, Subcontractors, or agents from those set forth in this Agreement. Reporting Ambiguities 3.10 If, during the performance of the Work, the Design-Builder discovers any Ambiguities within this Agreement,the Design-Builder must report it to the City,in writing,at once. The Design-Builder will proceed with the affected Work after receiving clarification or interpretation from the City. The Design-Builder will be liable to the City for failure to report any Ambiguities in this Agreement if the Design-Builder factually knew or reasonably should have known of the Ambiguities. Reuse 3.11 Neither the Design-Builder nor any Designer, Subcontractor, manufacturer, fabricator, supplier, or distributor will have or acquire any title to or ownership rights in any of the Drawings,Specifications or other documents, or copies thereof, prepared by Design-Builder and may not reuse any of them for any purpose unrelated to this Agreement without the prior written consent of the City. Electronic Documents 3.12 Those using electronic documents provided by the City do so at their own risk. Electronic documents are subject to data erosion, erasure, and alteration. Because computer software may become obsolete with time, the City makes no warranties or representations regarding the ability to permanently access electronic documents it provides. The City makes no warranties or representations regarding the presence or absence of computer viruses in electronic documents it provides; any person using an electronic document provided by the City should check the document for computer viruses before using it in a manner that might allow the spread of a computer virus. All or parts of electronic documents provided by the City may be copyrighted, and those using them are responsible for determining the existence of copyrights and for obtaining permission to copy copyrighted material. ARTICLE 4—AVAILABILITY OF LANDS; PHYSICAL CONDITIONS; SURVEY CONTROL Availability of Lands 4.1 The City will provide access to: (1) lands upon which the Work will be performed, (2) rights-of way for access to those lands, and (3) such other lands designated in this Agreement for the use of the Design- Builder. Where necessary and as described in the Scope of Work, the Design-Builder will be responsible for identifying and leading the acquisition process for any additional easements or right of way for the Subproject(s). Any easements for permanent structures or permanent changes in existing facilities will be obtained and paid for by the City, unless otherwise provided in this Agreement. The Design-Builder will provide,at no additional cost to the City, additional lands, easements,and access that the Design-Builder may require for temporary construction facilities or storage or use of material and equipment, including but not limited to swing-way easements for cranes and other equipment. Physical Conditions— Investigations, Reports, and Tests DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 4.2 Investigations, reports, or tests which the City may make available to the Design-Builder is the City's best known information. The City makes no warranty or representation regarding accuracy or completeness and are to be used at the Design-Builder's own risk. Differing Site Conditions 4.3 The Design-Builder must promptly notify the City in writing of: (1) subsurface or latent physical conditions at the site differing materially from those shown in this Agreement, or (2) unknown conditions of an unusual nature, differing materially from conditions ordinarily encountered in the region and generally recognized as inherent in the Work. The Design-Builder must, to the extent reasonably possible, provide prompt written notice of such conditions before they are substantially disturbed or altered. The City will promptly review those conditions and advise the Design-Builder in writing if further investigation or tests are necessary. The Design-Builder may not continue Work in the affected area until the City has inspected such condition to determine whether an adjustment to the Agreement is required.The City will obtain any necessary additional investigations and tests. If the conditions differ materially from those shown in this Agreement or from what reasonably could have been anticipated by the Design-Builder, this Agreement may be amended to allow additional compensation or time, or both, as reasonably necessary to accommodate the differing conditions. Survey Control 4.4 Unless otherwise provided in the Agreement,the Design-Builder will provide engineering surveys and establish those survey control points necessary to lay out the Work. The Design-Builder must: (1) lay out the Work, unless otherwise specified in this Agreement, (2) protect and preserve the established survey control points, and (3) make no change or relocation of the survey control points without the prior written approval of the City. The Design-Builder must report to the City whenever any survey control point is lost, destroyed, or requires relocation. At no additional cost to the City,the Design-Builder will be responsible for the accurate replacement or relocation of survey control points lost or destroyed without City approval. Such replacement must be by a professional land surveyor licensed by the State of Oregon. ARTICLE 5—BONDS AND INSURANCE Bonds 5.1 Upon execution of the GMP Amendment or early work under the Pre-Construction Design Phase , the Design-Builder will furnish bonds in accordance with the Agreement and this Article, as security for the faithful performance of, and payment of, all the Design-Builder's obligations, including without limitation preparation and completion of design and related personal services and self-performed work, under this Agreement. The performance bond, and labor and material payment bond will be on the forms prescribed by the bidding and contract requirements and executed by sureties: (1) licensed to conduct business in the State of Oregon, and (2) named in the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies"as published in Circular 570 (amended) by the Audit Staff Bureau of Accounts, U.S. Treasury Department. All bonds signed by an agent must be accompanied by a power of attorney or other evidence of the agent's authority to act on behalf of the surety. A. Design-Builder will provide a separate Performance Bond and a separate Payment Bond in a form acceptable to the City. Sample Performance Bond and Payment Bond are DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 included as Exhibit D and Exhibit E. Each bond will be equal to 100 percent of the Agreement amount for the Subproject(s).The Performance Bond and the Payment Bond must be signed by the Surety's Attorney-in-Fact, and the Surety's seal must be affixed to each bond. Bonds may not be canceled without the City of Tigard's consent, nor will the City release them prior to Agreement completion, including completion of all enduring obligations and liabilities under the Agreement. Bonds must be originals. Faxed or photocopied Bond forms will not be accepted. B. Design-Builder must file with the Construction Contractor's Board a Public Works Bond with a corporate surety authorized to do business in the State of Oregon in the amount of $30,000 prior to starting construction work under this Agreement unless otherwise exempt.Design-Builder is aware of the provisions of ORS 279C.600 and 279C.605 relating to notices of claim and payment of claims on Public Works Bonds. C. Design-Builder must include in every Subcontract a provision requiring the Subcontractor to have a public works bond filed with the Construction Contractor's Board before starting construction work on the project,unless otherwise exempt. D. Refer to GMP Amendment for Warranty Bond requirements. 5.2 The Design-Builder will substitute another bond and surety meeting the requirements of Article 5.1 within five days after the surety on any bond furnished by the Design-Builder: (1) is declared bankrupt, (2) becomes insolvent, (3) has its right to do business terminated in any state where any part of the Work is located,or (4) ceases to meet the requirements of Article 5.1. 5.3 In lieu of requiring Subcontractors to provide performance and payment bonds for their respective Work, the Design-Builder may utilize a Subcontractor default program to address defaults by Subcontractors on their contractual responsibilities. Workers' Compensation 5.5 The Design-Builder must maintain workers' compensation and employer's liability insurance as required by ORS Chapter 656 and meeting the minimum requirements therein, for all employees subject to the workers' compensation Laws of the State of Oregon, unless exempt, and any other appropriate jurisdiction. In lieu of such insurance, the Design-Builder may maintain a self-insurance program approved by the State of Oregon and a policy of excess workers' compensation insurance in the amount required by the State,which policy includes coverage for employer's liability. The Design-Builder must provide evidence of such insurance and self-insurance to the City before commencing Work and throughout the term of this Agreement. Out-of-state employers must provide Oregon workers' compensation coverage for their workers who work at a single location within Oregon for more than 30 days in a calendar year. Commercial General Liability Insurance 5.6 The Design-Builder must maintain commercial general liability insurance covering bodily injury and property damage.This coverage must include contractual liability insurance for the indemnity provided under this Agreement. The combined total commercial general liability coverage required is $15,000,000 which can be met with a combination of commercial general liability and umbrella/excess coverage resulting in a combined $15,000,000 coverage for commercial general liability. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Each Occurrence: $5,000,000 General Aggregate: $5,000,000 Product/Completed Operations: $5,000,000 Personal&Advertising Injury: $2,000,000 Fire Damage Limit: $100,000 Medical Expense Limit: $5,000 Automobile Liability Insurance 5.7 The Design-Builder must maintain business automobile liability insurance in an amount not less than $2,000,000 combined single limit and $3,000,000 combined aggregate to protect against liability arising from the use, loading, and unloading of all of the Design-Builder's owned, hired, and non-owned automobiles in connection with this Agreement. Such insurance will cover the City as an additional insured,provided that the Design-Builder's insurer is not required to indemnify the City for damages arising out of the death or bodily injury to persons or damage to property to the extent caused by the negligence of the City. The limits set forth herein may be met through the stacking of primary and excess policies. Pollution Liability Insurance 5.8 The Design-Builder must carry coverage for off-site transportation by all applicable modes of conveyance.When required, coverage is also to be provided for claims involving materials removed from the site and brought to off-site disposal, treatment and storage facilities. Any restriction, limitation, or exclusion related to naturally occurring substances must be modified so as not to apply to microbial matter and the release of such naturally occurring substances as a result of the performance of operations. Single Limit: $1,000,000 Aggregate: $1,000,000 Employers Liability Insurance 5.9 All non-exempt employers must provide employer's liability insurance with coverage limits of not less than $1,000,000 each accident. Each Accident: $1,000,000 Each Bodily Injury/Disease: $1,000,000 Aggregate Bodily Injury/Disease: $1,000,000 Commercial Umbrella/Excess Coverage 5.10 Combined coverage between the above liability limits (Articles 5.6-5.9) can be met by any combination of underlying coverage and umbrella/excess coverage that extends the underlying required coverage to the amount required. The combined total commercial general liability coverage required is $15,000,0000 which DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 can be met with a combination of commercial general liability and umbrella/excess coverage resulting in a combined $15,000,000 total coverage for commercial general liability. Each Occurrence: $10,000,000 Professional Liability Insurance 5.11 The Design-Builder must maintain professional liability insurance or"errors and omissions"coverage in amounts not less than $2,000,000 per claim and $5,000,000 aggregate. The Design-Builder will cause its lead designer to maintain professional liability insurance in amounts not less than $2,000,000 per claim and $5,000,000 aggregate. Such insurance will be written to cover all costs of correcting defects and deficiencies arising from error, omission, or negligent acts of the Design-Builder and lead designer and any other Subcontractor providing design, engineering, or other professional services. The policy will not contain any provision or exclusion (including any so-called "insured versus insured" exclusions or "cross-liability" exclusion) the effect of which would be to prevent,bar, or otherwise preclude the City or the Design-Builder from making a claim which would otherwise be covered by such policy on the grounds that the claim is brought by an insured or additional insured against an insured or additional insured under the policy.Insurance will be maintained through completion of construction and for at least 5 years past project completion. The retroactive date for coverage will be no later than the commencement date of design. If coverage is canceled and not replaced with similar coverage with a consistent retroactive date,the Design-Builder or lead designer must purchase an extended reporting period of at least 5 years or otherwise as by agreement with the City. Builders Risk Insurance 5.12 The Design-Builder must purchase and maintain property insurance upon the Work at the site in an amount equal to the full amount of the Agreement, subject to such deductible amounts as may be required by Laws and Regulations.This insurance must include the following. A. Interests of the City, Design-Builder, Subcontractors, and any other persons or entities identified in the GMP Amendment, each of whom is deemed to have an insurable interest and will be listed as an insured or additional insured. B. Written on a Builder's Risk, "all risk", or open peril or special causes of loss policy form that will at least include insurance for physical loss and damage to the Work,temporary buildings,false work,and Work in transit and will insure against at least the following perils: fire, lightning, extended coverage, theft, vandalism and malicious mischief, earthquake, flood, collapse, debris removal, demolition occasioned by enforcement of Laws and Regulations,water damage, and such other perils as may be specifically required. C. Expenses incurred in the repair or replacement of an insured property (including but not limited to fees and charges of engineers and architects). D. Cover materials and equipment in transit for incorporation in the Work or stored at the site or at another location that was agreed to in writing by City prior to being incorporated in the Work provided that such materials and equipment have been included in the application for payment recommended by Design-Builder. E. Maintained in effect until final payment is made unless otherwise agreed to in writing by City and Design-Builder with 30 days' written notice to each other additional insured to whom a certificate of insurance has been issued. F. In the event the Design-Builder fails to maintain insurance required under this subsection,the City,at its sole option, may arrange for such coverage, and any administrative costs and premium incurred will be reimbursed by the Design-Builder. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Subcontractor Insurance 5.13 All Subcontractors (including designers) must maintain the same insurance as required of Design- Builder as set forth herein, including but not limited to the types of insurance, extent and durations of coverages,and notice requirements,except that the limits of insurance for Subcontractors may be no less than the following: A. Workers' Compensation: same as Design-Builder above. B. Commercial General Liability: $2,000,000 per occurrence/$2,000,000 aggregate. C. Professional Liability: The Design-Builder will require Subcontractors who perform design Work to provide coverage at limits determined by the Design-Builder not to exceed $2,000,000 per claim/$2,000,000 aggregate. D. Automobile Liability: $2,000,000 per occurrence. General Insurance Requirements 5.14 The limits set forth herein may be met through the stacking of primary and excess policies. 5.15 The limits set forth herein may be increased or modified in subsequent GMP Amendments. 5.16 All required insurance policies,other than Workers'Compensation and Professional Liability,must name the City its officers, employees, agents, and representatives as additional insureds with respect to this Agreement. 5.17 If any of the required liability insurance is arranged on a"claims-made"basis,Extended Reporting coverage will be required at the completion of this Agreement to a duration of 24 months or,if less than 24 months, the maximum time-period Design-Builder's insurer will provide. Design-Builder will be responsible for furnishing certification of Extended Reporting coverage as described or continuous "claims-made"liability coverage for 24 months following Agreement completion. Continuous "claims-made" coverage will be acceptable in lieu of Extended Reporting coverage,provided its retroactive date is on or before the effective date of this Agreement. Coverage will be endorsed to provide a"per project"aggregate. 5.18 Coverages provided by the Design-Builder must be underwritten by an insurance company deemed acceptable by the City. All policies of insurance must be written by companies having an A.M. Best rating of "A-VII" or better, or equivalent. The City reserves the right to reject all or any insurance carrier(s) with an unacceptable financial rating. 5.19 The City understands that some contractors may self-insure for business risks and the City will consider whether such self-insurance is acceptable if it meets the minimum insurance requirements for the type of coverage required. If Design-Builder is self-insured for commercial general liability or automobile liability insurance, Design-Builder must provide evidence of such self-insurance. Design-Builder must provide a certificate of insurance showing evidence of the coverage amounts on a form acceptable to the City. The City reserves the right in its sole discretion to determine whether self-insurance is adequate. 5.20 As evidence of the insurance coverage required by the Agreement, Design-Builder will furnish a certificate of insurance to the City. No Agreement is effective until the required certificates of insurance have DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 been received and approved by the City. The certificate will specify and document all provisions within this Agreement and include a copy of the additional insured endorsement. The certificate and endorsement will provide that there will be no cancellation, termination,material change or reduction in limits of the insurance coverage without a minimum 30-day written notice to the City.The certificate and endorsement will also state the deductible or self-insured retention level. All certificates, including renewals will be forwarded to: contractspurchasing&tig�rd-oror.gov 5.21 The Parties agree that Design-Builder's coverage is primary to the extent permitted by law. The Parties further agree that other insurance maintained by the City is excess and not contributory insurance with the insurance required in this section. ARTICLE 6—DESIGN-BUILDER'S RESPONSIBILITIES Administration and Supervision 6.1 The Design-Builder must supervise and direct the Work competently and efficiently, applying the skills and expertise as may be necessary to perform the Work in accordance with this Agreement. The Design- Builder is solely responsible for the means,methods, techniques, sequences, and procedures of construction. The Design-Builder is responsible for seeing that the finished Work complies accurately with this Agreement. 6.2 The Design-Builder must provide a competent project superintendent at the site at all times during work progress. The superintendent is responsible for oversight of the work being performed by the Design- Builder and its Subcontractors. The project superintendent may only be replaced as provided in the Agreement. 6.3 If the Design-Builder's Representative is not available for project administration, the superintendent will have the authority to receive direction from the City on behalf of the Design- Builder. All communications given to the superintendent will be as binding as if given to the Design-Builder. This authority includes,but is not limited to,receipt of City-issued documentation,taking action on City direction not involving changes to this Agreement,taking direct action in emergency situations, and implementing stop work orders issued by the City. Labor and Material 6.4 The Design-Builder must provide competent, suitably qualified personnel to survey and lay out the Work, and to perform construction as required by this Agreement. The Design-Builder must at all times maintain good discipline and order at the site. 6.5 The Design-Builder must give not less than 24 hours' notice to the City if work is to be performed outside normal day-shift hours or on Saturday, Sunday, or any legal holiday. Emergency conditions relating to safety or protection of persons or property are valid exceptions to such notice. Specific work hour restrictions will be described in Exhibit 3. 6.6 Unless otherwise specified, the Design-Builder must furnish for the execution,required testing,initial operation, and completion of the Work all necessary material, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, and all other facilities and incidentals. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 6.7 All material incorporated into the Work must be new,except as otherwise provided in this Agreement. Products containing asbestos or other hazardous material,as defined by ORS 466.605,may be used only with the City's prior written approval. If required by the City,the Design-Builder will furnish satisfactory evidence that the kind and quality of material and equipment provided meet Agreement requirements. Satisfactory evidence may include test reports. 6.8 The Design-Builder must obtain documentation from distributors, fabricators, manufacturers, and suppliers that provides instructions for the application, cleaning, connection,erection,installation, and use of their products. The Design-Builder must follow these instructions unless more stringent requirements are provided in this Agreement. 6.9 All material provided and normally tested and labeled by an approved testing laboratory, such as Underwriters Laboratories (UL), Canadian Standards Association (CSA), or by a similarly recognized third- party approval authority,must be so labeled. "Pre-Bid Approved Equals," "Equals," and Substitutes 6.10 Whenever an item of material or equipment is specified or described in the Construction Documents by using the name of a proprietary item or the name of a particular supplier, the specification or description is intended to establish the type, function, appearance, and quality required. Unless the specification or description indicates that no substitution is permitted, other items of material or equipment, or material or equipment of other suppliers, may be submitted to the City for evaluation under the circumstances described below: A. "Pre-Bid Approved Equal"Items: The Design-Builder must submit requests to the City for"pre- bid approved equal"material,products,or services on behalf of Subcontractors prior to submittal of bids. The Design-Builder must submit such requests no less than five Business Days prior to the bid opening. The Design-Builder must then forward approval of materials, products, or services the City deems equivalent by addendum to the Subcontractors at least 72 hours prior to the bid opening date and time. B. "Equal" Items: If in the City's sole discretion an item of material or equipment proposed by the Design-Builder is functionally equal to that named and sufficiently similar so that no change in related Work will be required,it may be considered by the City as an "equal" item,in which case evaluation and approval of the proposed item may,in the City's sole discretion,be accomplished without compliance with some or all of the requirements for approval of proposed substitute items. Proprietary materials,products,or services that are specified but not followed by the words "or pre-bid approved equal," "or equal," or "no substitution" will be evaluated as if they were followed by the words"or equal." For the purposes of this paragraph,a proposed item of material or equipment will be considered functionally equal to an item so named if- 1. £1. "It is at least equal in quality, durability, maintainability, appearance, strength, and design characteristics; 2. It will reliably perform at least equally well the function imposed by the design concept of the completed Work as a functioning whole; and DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 3. The Design-Builder certifies that there is no increase in cost to the City; and that it will conform substantially,even with deviations,to the detailed requirements of the item named in this Agreement. 4. The Design-Builder may treat Subcontractor substitution requests in accordance with this section but must obtain the City's approval of the substitution before allowing the Subcontractors to bid based upon the substitution. 5. If an item of material or equipment proposed by the Design-Builder does not qualify as an "equal" item as defined above, it will be considered a proposed substitute item. This determination will be at the City's sole discretion. 6. The Design-Builder must submit sufficient information, as provided below, to allow the City to determine that the item of material or equipment proposed is essentially equivalent to that named and an acceptable substitute therefor. The City will not accept requests for evaluation of proposed substitute items of material or equipment from anyone other than the Design-Builder. The Design-Builder must make the request as a submittal. 7. The application must certify that the proposed substitute item will adequately perform the functions and achieve the results called for by the general design,be similar in substance to that specified, and be suited to the same use as that specified. 8. The application must state the extent, if any, to which the use of the proposed substitute item will prejudice the Design-Builder's achievement of Substantial Completion on time, whether or not use of the proposed substitute item in the Work will require a change in this Agreement (or in the provisions of any other affected contract with the City for work) to adapt the design to the proposed substitute item, and whether or not incorporation or use of the proposed substitute item in connection with the Work is subject to payment of any license fee or royalty. 9. The application must identify any variations of the proposed substitute item from that specified, and identify available engineering, sales, maintenance, repair, and replacement services. 10. The application must contain an itemized estimate of all costs or credits that will result directly or indirectly from use of such substitute item,including costs of redesign and claims of other contractors affected by any resulting change, all of which will be considered by the City in evaluating the proposed substitute item. 11. The City may require the Design-Builder to furnish additional data beyond that listed above about the proposed substitute item. 12. The City may require the Design-Builder to furnish, at the Design-Builder's expense, a special performance guarantee or other surety with respect to any substitute. 13. No increase in the Guaranteed Maximum Price or extension of the Contract Time will be considered when a substitution is not accepted. C. No Substitution: DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 1. Materials, products, or services marked "no substitution" have been determined to be: 1) manufactured from a single source only,or 2) required for the efficient utilization of existing equipment or systems. Requests for substitution will not be considered for these items. Justifications for classifying these products as "no substitution" are on file as brand name exemption items in the City's Contracts and Purchasing Office. 6.11 Design-Builder Application for Evaluation: The application for evaluation of"equal" or substitute items must be made using the forms provided by the City. These forms may be copied. 6.12 City's Evaluation: Within 10 days, the City will evaluate each application for "equal" and substitute items. The City will be the sole judge of acceptability. No"equal"or substitute item may be ordered,installed, or utilized until the City's evaluation is complete, which will be evidenced by either a Change Order for a substitute or an approved submittal for an"equal." The City will advise the Design-Builder in writing of any negative determination. Concerning Subcontracting and Self-Performance 6.13 Selection of sources of design services,labor,material, equipment, and services necessary to accomplish the Work is governed by this section. For the purposes of this section, "Subcontractor" also includes suppliers. A. The Design-Builder will seek to develop Subcontractor interest in the Work and furnish to the City a list of potential qualified Subcontractors from whom bids may be requested. The City may identify additional potential qualified Subcontractors from whom the Design-Builder will request bids. Unless exempted and approved by the City under Article 6.13 C or D below, the Design- Builder will perform each element of the Work through a subcontract awarded in accordance with the competitive selection process described in Article 6.13 F below. In bundling elements of the Work for subcontracting or self-performance purposes, the Design-Builder is not constrained by the grouping or association of elements of the Work in the Specifications and Drawings. B. Unless already exempted by Article 6.13 D, the Design-Builder must submit for City approval each element of the Work the Design-Builder proposes to self-perform, and each element of the Work the Design-Builder proposes to subcontract without the competitive selection process. The proposal must include an explanation as to why self-performance or exemption from the competitive selection process is in the City's best interest. The proposal must also describe the process the Design-Builder will use to qualify and select prospective Subcontractors for the portions of the Work that are not subject to the qualification and selection process. 1. The Design-Builder must provide an independent cost estimate for the Work element that will be subject to the non-competitive process,if required by the City. 2. The Design-Builder must fully respond to any questions or comments submitted to the Design-Builder by the City in regard to the non-competitive process. 3. The Design-Builder must demonstrate and give assurances that the self-performed work is insured to the extent it causes property damage. C. To determine whether self-performance or exemption from the competitive selection process is in the City's best interest,the City will consider some or all of the following factors including,but DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 not limited to: emergency circumstances,the Design-Builder's need to utilize a key Subcontractor member of the Design-Builder's project team consistent with the Design-Builder's project proposal, the need to meet other specified Agreement requirements, the continuation or expansion of an existing Subcontractor agreement that was awarded through a competitive process along with facts supporting the continuation or expansion of the Subcontractor agreement, special requirements for the Work, special advantages or capabilities of the Design- Builder or Subcontractor to perform the Work,the significance of the Work as a critical path item, market availability of the requested services or products, and demonstration that the price is reasonable and fair. D. The following are exempt from the competitive selection process: 1. Management services self-performed by the Design-Builder. 2. Subcontracted or self-performed Work valued at $10,000 or less. 3. Subcontracted Work valued at less than $100,000 but more than $10,000 provided the Design-Builder receives a minimum of three written quotations and awards the subcontract to a qualified Subcontractor at a fair and reasonable price. However, the City may waive the three-quotation minimum requirement after reviewing the Design-Builder's good faith efforts to obtain them. 4. Design professional services self-performed by Design-Builder. 5. Design professional services performed by one or more Designers identified in the Agreement. E. The competitive selection process includes all of the elements described below: 1. The Design-Builder must develop the criteria (qualifications and price) that will be used to analyze bids for each element of the Work,in accordance with the following: a) Unless identified in 6.13.E.b. below or exempted from the competitive process as described in 6.13.D above, subcontracted work will be awarded to the firms that meet minimum qualifications and offer the lowest price following a competitive selection process as outlined in this section. b) Unless allowed without a competitive process as described in 6.13.C, above, subcontracts in the trades or design disciplines listed below will be awarded to the firms that offer the best combination of qualifications and price: 1) Concrete Work 2) Structural elements (bridge foundation and structure, retaining walls) 3) Water distribution system 4) Excavation and earthwork DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 5) Architectural elements 6) Other trades or design disciplines proposed by Design-Builder in its Procurement Plan and accepted by the City in the GMP Amendment. c) Design-Builder will consult with the City regarding subcontracts for an element of the Work not listed above and will use the competitive procedure detailed in La. or Lb., as directed by the City for that subcontract. d) Subcontract pricing may be lump sum or cost plus a fixed fee. The criteria must be presented to the City for review and are subject to approval. The City may also add criteria for evaluation upon reasonable justification. e) If the Design-Builder or an affiliate or subsidiary of the Design-Builder will be included in the Subcontractor selection process to perform particular design services or construction Work on the project, the Design-Builder must disclose that fact in the selection process documents and announcements. The Design-Builder must utilize the conditions,processes, and procedures identified in Article 6.13 E. 6 below. 2. Advertisements of each solicitation for bids expected to exceed $25,000 must be published in the Portland Daily Journal of Commerce, and other trade journals if appropriate, at least ten (10) days prior to opening. In addition,in order to provide equitable access to opportunities on this project Design-Builder must identify subcontracting packages that could reasonably be performed by COBID certified firms and provide such information to the following City partner organizations. Oregon Association of Minority Entrepreneurs (OAME) National Association of Minority Contractor's Oregon (NAMCO) Professional Business Development Group (PBDG) Latino Built 3. Design-Builder will keep track of and inform the City of any outreach efforts to the identified partner organizations above. 4. Design-Builder must obtain a minimum of three Subcontractor bids for each element of the Work estimated over $25,000, unless the City waives the three-bid minimum requirement after reviewing the Design-Builder's good faith efforts to obtain bids. 5. If requested by the City, bid solicitation documents must be provided to the City for review not less than five Business Days prior to issuance of bid solicitation, unless a different schedule is agreed to by the Design-Builder and the City. Each solicitation must state the time and place bids will be opened. 6. All bids must be in writing, sealed, and submitted to a specific location by a specific time. If Subcontractors are required by Law to have State of Oregon Construction Contractors Board license and Workers' Compensation Insurance, the bids must include the Subcontractor's DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Contractors Board license number and insurance identification number. If Subcontractors are required by Law to have State of Oregon architect, landscape architect, or engineering registration,the bids must include the Subcontractor's registration number. 7. Bids must be opened in public with the City's Project Manager or their designee present at the time and place stated in the solicitation. The Design-Builder must evaluate the Subcontractors according to the criteria approved in Article 6.13 E.1 above. After evaluation, the Design-Builder will share the results of the evaluation with the City. Upon completion of the City's review and subject to the City's disapproval,the Design-Builder will then award the contract to the selected bidder and announce the results to all Subcontractors who submitted bids for that element of the Work. The announcement of award will: a) Be communicated to Subcontractors via email. b) Specify that Subcontractors who were not selected for an element of the Work may, within 60 days from the Design-Builder's notice of award of a subcontract for that Work, submit a written request to the Design-Builder for a post-selection meeting with the Design-Builder to discuss the Subcontractor qualification and selection process. A meeting with the Subcontractor will be set within 45 days of the Subcontractor's written request. 7. The City will not resolve or be involved in the resolution of protests of the Design-Builder's selection of Subcontractors and suppliers. The procedures and reporting mechanisms related to the resolution of Subcontractor and supplier protests will be as follows: a) The Design-Builder will review any protest. Upon completion of the review the Design-Builder will determine the path of resolution with three possible outcomes: (1) confirmation of the original findings; (2) re-solicitation of bid package; or (3) revised award. 8. The City retains the right to monitor the subcontracting process in order to protect the City's interests and to confirm the Design-Builder's compliance with the Agreement and with applicable statutes, administrative rules, and other legal requirements. 9. The Design-Builder's subcontracting records are not considered public records except to the extent that they are prepared,owned,used,or retained by the City in the conduct of the City's business. F. The COBID aspirational goal is 12%. The Design-Builder will submit usage reports on Work contracted with COBID certified Subcontractors (including but not limited to Designers) or suppliers on a regular basis or as requested. G. All subcontracts, including but not limited to subcontracts with Designers, will include a clause stating that the City is a third-party beneficiary of the subcontract and the subcontract is assignable to the City upon the City's written request in the event the City takes over the Work. H. Upon execution of any subcontract,the Design-Builder will provide the City with a bid tabulation for the portion of the Work covered by the subcontract. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 6.14 The Design-Builder must include a provision in all subcontracts that all Subcontractors (including but not limited to Designers) agree to be bound to the Design-Builder by terms of the Design-Build Documents, and to assume toward the Design-Builder all the obligations and responsibilities,including but not limited to the responsibility for safety of the Subcontractor's Work, which the Design-Builder, by this Agreement, assumes toward the City. 6.15 Subcontractors are subject to disapproval of the City. If the City disapproves a Subcontractor, the Design-Builder will submit an acceptable substitute. 6.16 The Design-Builder is responsible for: (1) all acts and omissions of its Subcontractors (including but not limited to Designers), (2) persons and organizations directly or indirectly employed by its Subcontractors, (3) persons and organizations for whose acts any of its Subcontractors may be liable, and (4) scheduling and coordinating the work of Subcontractors, suppliers, and other individuals or entities designing,performing or furnishing any of the Work under a direct or indirect contract with the Design-Builder. Nothing in this Agreement creates any contractual relationship between the City and any Subcontractor or other person or organization having a direct contract with the Design-Builder. Nothing in this Agreement creates any obligation on the part of the City to pay or to see to the payment of any moneys due any Subcontractor or other person or organization, except as may otherwise be required by Law. The City may furnish to any Subcontractor or other person or organization, to the extent practicable, evidence of amounts paid to the Design-Builder on account of specific Work completed. Patent Fees and Royalties 6.17 If any design, device, material, or process covered by letters patent or copyright is used by the Design- Builder or is provided for the City's use, the Design-Builder will: (1) provide for such use by agreement with the owner of the patent or copyright or a duly authorized licensee of such owner; and (2) defend,indemnify, reimburse and hold the City harmless from all damages, losses and expenses, including, without limitation, attorneys'and expert witness'fees arising from the use of the patented or copyrighted design,device,material, or process. Computer Software and Code Use Rights 6.18 If the Design-Build Documents require the Design-Builder to provide the City with computer software programs or code as part of the Work, the Design-Builder will provide the City with all documentation and instruments necessary to evidence the City's right to use such software or code,including but not limited to ownership transfer documentation, software license agreements generally in accordance with the forms of agreements included in the Design-Build Documents as exhibits, subscription agreements, or assignments of intellectual property interests, as applicable. Permits 6.19 Unless otherwise provided in the Design-Build Documents, the Design-Builder must secure and pay for any and all permits, fees,licenses,inspections,and agreements by governmental agencies or other entities, necessary for proper execution of the Work and Substantial Completion of the Project, including but not limited to mechanical, plumbing, electrical, and similar special permits, plan check fees, system development charges, road approach, and right-of-way permits, including permits and all other agreements, qualifications, and insurance necessary for work over the railroad right of way, air discharge permits, and all other necessary DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 permits, approvals, assessments and charges required for construction, use or occupancy of permanent structures or for permanent changes in existing facilities. A. The Design-Builder will submit to the City, for review, all calculations and other documentation required for purposes of obtaining permits. B. After City review, the Design-Builder will submit to federal, state, and local units of government all calculations and other documentation required for obtaining permits. During review by units of government or other entities, the Design-Builder will notify the City of proposed deviations from the original permit documentation. C. The Design-Builder will submit to the City all calculations and other documentation approved by units of government. D. The Design-Builder will pay costs and charges imposed by local units of government or other entities for permits issued to the Design-Builder. E. The Design-Builder will give all notices necessary for permit-related inspections by third parties. F. The Design-Builder will submit to the City a legible copy of agreements, permits, certificates of approval, and certificates of occupancy issued by the responsible unit of government. Laws and Regulations 6.20 The Design-Builder will comply and ensure that its employees and those of its Subcontractors and suppliers at every tier comply, with the most current versions of applicable Laws, rules, regulations, and practices. 6.21 If the Design-Builder performs any Work knowing or having reason to know that it is contrary to any Law,the Design-Builder will be responsible for all claims, costs,losses, and damages arising out of or relating to the Design-Builder's performance or the resulting Work. The Design-Builder will immediately report to the City if performance under this Agreement would violate any Law in any respect. A. The Agreement hereby incorporates all contract provisions that are required to be incorporated into contracts with public entities pursuant to (a) the Public Contracting Code (ORS Chapters 279A, 279B and 279C), (b) the City's Public Contracting Rules and (c) other applicable Law. The provisions incorporated into the Agreement under the preceding sentence include, without limitation,any provisions or amendments to provisions that become required after the Agreement is executed. The provisions listed in this section are not necessarily an exhaustive list of provisions that are required under the Public Contracting Code, the City's Contracting Rules or other applicable Law,and the fact that this section does not list a provision that is required by the Public Contracting Code,the City's Public Contracting Rules or other applicable Law will not (i) prevent or otherwise diminish the incorporation of that unlisted provision into the Agreement, or (ii) negate or otherwise diminish Design-Builder's obligation to comply with applicable Laws. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Environmental Responsibilities 6.22 The following federal, state, and local agencies have enacted ordinances or regulations dealing with the prevention of environmental pollution and the preservation of natural resources that affect the performance of this Agreement: A. City and county where the Work is to be performed B. Oregon Environmental Quality Commission C. Oregon Fish and Wildlife Commission D. U.S. Environmental Protection Agency E. U.S. Fish and Wildlife Service F. National Marine Fisheries Service 6.23 Known conditions at the construction site may require the Design-Builder to comply with statutes or with ordinances or regulations enacted by the agencies listed above. 6.24 The Design-Builder is solely responsible for: (1) considering applicable statutes and the ordinances and regulations enacted by the agencies listed above,(2) considering the known conditions specifically referred to in this Agreement, and (3) ensuring that the activities of the Design-Builder and the Design-Builder's employees, Subcontractors (including suppliers), agents, and invitees with respect to those conditions do not violate any of those statutes, ordinances, or regulations. Without limiting the foregoing, the Design-Builder is solely responsible for the following environmental and natural resource risks associated with the performance of this Agreement: A. Air pollution; B. Water pollution; C. Contamination of soil, groundwater,or sediment; D. Filling or destruction of wetlands; E. Taking of a federally listed threatened or endangered species through habitat destruction,habitat degradation,or otherwise; and F. Introduction of an invasive species. 6.25 In addition to the foregoing requirements, the Design-Builder will manage and conduct all activities related to the performance of this Agreement in accordance with all environmental Laws and regulations,and with the requirements of all permits issued under those Laws and regulations of which the Design-Builder has been given notice or has actual knowledge. "Environmental Laws and regulations"means all federal and state statutes, all local ordinances, and all regulations adopted pursuant to those statutes and ordinances, as any of them may be amended from time to time, dealing with the prevention of environmental pollution or the preservation of natural resources,including but not limited to: the Resource Conservation and Recovery Act, DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 the Comprehensive Environmental Response,Compensation and Liability Act,the Toxic Substances Control Act,the Clean Air Act,the Clean Water Act,and Oregon Revised Statutes Chapters 465,466,467,468,468A, 468B, and 496. If the Design-Builder believes compliance with a requirement under this Agreement or a direction given by the City will result in violation of any environmental Laws or regulations, the Design- Builder will so notify the City in writing immediately and may not proceed pursuant to that requirement or direction until the City directs the Design-Builder to proceed. 6.26 In the event of a sudden spill or discharge of hazardous material as a result of the negligence or other fault of the Design-Builder,its Subcontractor(s),agents, employees,or anyone else for whom Design-Builder is responsible, the City may take action,including contracting for control or cleanup of the spill or discharge, unless the Design-Builder takes immediate appropriate action. If the City takes action pursuant to this paragraph, the City may recover from the Design-Builder all reasonable cost necessarily incurred in effecting the control and cleanup of the spill or discharge. Regardless of who undertakes the cleanup or control of the spill or discharge,the methods used will be subject to the approval of the City. A. Unless disposition of environmental pollution is specifically a part of this Agreement or was caused by Design-Builder (reference 6.26),Design-Builder will immediately notify City of any hazardous substance(s) which Design-Builder discovers or encounters during performance of the Work required by this Agreement. "Hazardous substance(s)" means any hazardous,toxic and radioactive materials and those substances defined as "hazardous substances,""hazardous materials," "hazardous wastes," "toxic substances," or other similar designations in any federal, state, or local law, regulation, or ordinance, including without limitation asbestos, polychlorinated biphenyl (PCB), or petroleum, and any substances, materials or wastes regulated in 40 CFR, Part 261 and defined as hazardous in 40 CFR S 261.3. In addition to notifying City of any hazardous substance(s) discovered or encountered, Design-Builder will immediately cease working in any particular area of the project where a hazardous substance(s) has been discovered or encountered if continued work in such area would present a risk or danger to the health or well-being of Design-Builder's or any Subcontractor's work force. B. Upon notification from Design-Builder of the presence of hazardous substance(s) on the project site, City will arrange for the proper disposition of such hazardous substance(s). City may agree to a Change Order or Change Directive to extend the Contract Time, depending on the nature and extent of necessary disposition or remediation for hazardous substances under this section. Taxes 6.27 The Design-Builder must pay or ensure payment of sales, consumer, use, and other similar taxes required of the Design-Builder or any Subcontractor under any Law with respect to performance under this Agreement. Design-Builder must comply with all Oregon tax Laws and submit a certification of such compliance in accordance with ORS 305.385(6). Use of Premises 6.28 The Design-Builder will confine equipment,the storage of material, and the operations of workers to areas permitted by this Agreement. The Design-Builder will not unreasonably encumber the premises with equipment or material. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 6.29 During the progress of the Work,the Design-Builder will keep the premises free from accumulations of waste material, rubbish and other debris resulting from the Work. At the completion of the Work, the Design-Builder will leave the site clean and ready for occupancy. The Design-Builder will restore to their original condition those portions of the site not designated for alteration by this Agreement. 6.30 The Design-Builder will not permit any part of any structure to be subjected to loads that may endanger its structural stability. The Design-Builder will not subject any part of the Work or adjacent property to stresses or pressures that will endanger it. Safety and Protection 6.31 The Design-Builder must comply with all Laws applicable to the safety of persons or property. Damage, injury, or loss to property caused by the Design-Builder, Subcontractor, or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable will be remedied by the Design-Builder. 6.32 The Design-Builder will be solely responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Work. 6.33 Prevention through Design: In order to minimize or eliminate risk and hazards, during the design phase the Design-Builder will assign a design safety coordinator to anticipate hazards during the construction phase(s) and during occupancy. A. The design safety coordinator will develop a safety and health plan anticipating hazards applicable to the construction site, taking into account the construction activities that will take place on the site. The plan will be provided to the construction team safety representative(s) for inclusion into their site-specific safety plan. This plan will also include specific measures addressing hazards which may fall within one or more of these categories: 1. Work involving engulfment hazards. 2. Work involving falls from height hazards. 3. Work which puts workers at risk from chemical or biological substances. 4. Work with ionizing radiation. 5. Work near high voltage lines. 6. Work involving Hazardous Energy Control Procedures. 7. Work exposing workers to the risk of drowning(work over water). 8. Work carried out by divers. 9. Work involving the use of explosives. 10. Work involving the assembly or dismantling of heavy prefabricated components. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 11. Work involving an OSHA or other regulatory requirement for worker health exposure monitoring. 12. Work taking place on,near, or over railroad right of way. 13. Work that impacts the use of the right of way by the travelling public. 14. Work near high-pressure gas lines or other potentially life-threatening utilities as identified by the City in writing. B. The design safety coordinator will also develop a safety and health plan anticipating hazards applicable to the use and maintenance of the permanent facility, ensuring the protection of employees and the public. This plan will be submitted to the City prior to beneficial occupancy. 6.34 The Design-Builder will designate a qualified and experienced safety representative whose duties and responsibilities are the prevention of accidents and the maintenance and supervision of safety precautions and programs. This person will be the Design-Builder's project superintendent unless otherwise designated in writing by the Design-Builder to the City. 6.35 The Design-Builder will report promptly in writing to the City all recordable accidents and injuries occurring at the site. When the Design-Builder is required to file an accident report with a public authority, the Design-Builder will submit a copy of the report to the City. 6.36 The Design-Builder will inform the City of the specific requirements of the Design-Builder's safety program with which the City's employees and representatives must comply while at the site. 6.37 If the City deems any part of the Work unsafe, the City, without assuming responsibility for the Design-Builder's safety program, may require the Design-Builder to stop performance of the Work or take corrective measures satisfactory to the City, or both. If the Design-Builder does not adopt corrective measures, the City may perform them and deduct their cost from the contract sum. The Design-Builder agrees to make no claim for damages, for an increase in the contract sum, or for a change in the Contract Time based on the Design-Builder's compliance with the City's reasonable request. 6.38 The Design-Builder will erect and maintain necessary safeguards for the safety and protection of: A. Employees on the Work and other persons, including the public, whose safety may be adversely affected by performance of the Work. B. The Work and material to be incorporated into the Work,whether in storage on or off the site. C. Other property at the site including trees, shrubs, lawn, walks, pavements, roadways, structures, and utilities not designated for removal, relocation, or replacement. D. Adjacent property and utilities when prosecution of the Work may affect them. If the Design-Builder fails to protect the Work,the City may,after giving notice to the Design-Builder, protect the Work and deduct the resulting cost from payment due the Design-Builder. The City's determination of when and to what degree such protection is necessary is final. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 6.39 The Design-Builder's duties and responsibilities for the safety and protection of the Work continues until the Design-Builder has completed all obligations under this Agreement. Emergencies 6.40 In the event of an emergency affecting the safety or protection of persons or the Work or property at, adjacent to,or near the site, the Design-Builder will act to prevent threatened damage,injury, or loss. The Design-Builder may act without special instruction or authorization from the City. The Design-Builder must give the City written notice within 24 hours of any significant change in the Work or deviation from this Agreement caused by the Design-Builder's acts or omissions. Submittals (Construction Documents, Shop Drawings, Product Data,Maintenance Data, Other Information, and Samples) 6.41 The Design-Builder must check and verify all field measurements associated with the fit and function of supplied equipment, products, and material, then submit Construction Documents, Shop Drawings, Product Data,Maintenance Data,other information,and Samples to the City in accordance with the accepted submittal schedule, with such promptness as to cause no delay in the Work. All submittals will be identified as the City requires and be accompanied by the City's standard submittal form. Submittals will be reviewed and stamped with the approval of the Design-Builder prior to submittal to the City. 6.42 Construction Documents, Shop Drawings, Maintenance Data, Product Data, and other information including, but not limited to, substitution requests,certificates,reports, test data, mix designs, and warranties will be submitted electronically unless otherwise specified. Data shown in submittal information will be complete with respect to quantities, dimensions, material, and specified performance and design criteria, to allow the City to verify conformance with this Agreement. 6.43 The Design-Builder will submit to the City the specified number of Samples required by this Agreement. Samples will be identified clearly as to material, manufacturer, pertinent catalog numbers, and intended use. 6.44 The Design-Builder will call the City's attention to any deviations from the requirements of the Construction Documents that the Shop Drawings, Product Data, Maintenance Data, other information, or Samples may have. This will be in a written format approved by the City and submitted electronically through the construction management software. 6.45 Within 7 Business Days of actual receipt,the City will stamp, date, and return proposed deviations to the Design-Builder indicating the action to be taken, or notify the Design-Builder of the reason for delay in return. The City's review will be only for conformance with the design concept of the Work and for general compliance with this Agreement. It will not extend to means,methods, sequences,techniques,or procedures of construction; nor will it extend to safety precautions or programs related thereto, or to the assembly in which an item functions. 6.46 The Design-Builder will make any corrections required by the City and proceed according to the City's directions. The Design-Builder will return the required number of corrected copies of submittal information and resubmit new Samples for review. The Design-Builder will direct specific attention in writing to revisions other than the corrections called for by the City on previous submittals. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 6.47 The Design-Builder's stamp of approval on any submittal constitutes a representation to the City that the Design-Builder has: (1) determined and verified all quantities, dimensions, field construction criteria, material, catalog numbers, and similar data or assumes full responsibility for doing so, and (2) has reviewed and coordinated each submittal with the requirements of this Agreement. 6.48 When a submittal is required by this Agreement, no related Work may be commenced until the submittal has successfully completed the Design-Builder's review process and any deviations have been submitted to and reviewed by the City, unless permission to commence has been granted in writing by the City. The Work will be in accordance with approved submittals (including but not limited to the Construction Documents), except that Design-Builder is not relieved of its responsibility to perform Work in accordance with the requirements of the Design-Build Documents. 6.49 The City's review of a submittal (including but not limited to the Construction Documents) does not relieve the Design-Builder from responsibility for any deviations from this Agreement except those called to the City's attention at the time of submission and specifically accepted in writing by the City. Changes in the Work will follow procedures outlined for a Change Order. Review by the City does not relieve the Design- Builder from responsibility for errors or omissions in the submittal, including but not limited to errors or omissions in the Construction Documents. 6.50 Submittals that have successfully completed the review process become binding upon the Design- Builder, and Design-Builder is obligated to perform in accordance with the reviewed submittal. Schedule of Values 6.51 The Design-Builder must submit a schedule of values prepared by distributing the Guaranteed Maximum Price to line items in a format approved by the City. The distribution of the Guaranteed Maximum Price must accurately reflect the estimated cost of the individual line items. 6.52 The Design-Builder must submit the initial schedule of values for review and approval at the first meeting between the City and Design-Builder. Once approved, the schedule of values will be updated monthly. Each schedule of values submittal, including the initial submittal, will include a hard copy and an electronic copy on disk. Work Progress Schedule 6.53 The Design-Builder will submit a PC-based critical path method work progress schedule with activities coded to facilitate organizing the schedule. 6.54 The Design-Builder will submit the initial work progress schedule for review at the first meeting between the City and Design-Builder. The work progress schedule will be updated monthly. Each work progress schedule submittal, including the initial submittal, will include a hard copy and an electronic copy through the construction management software. Access to the Work 6.55 The Design-Builder must provide reasonable and safe access to the City and inspection authorities for observation, testing, and inspection of the Work including, but not limited to, ladders, lifts, equipment, and tie-off apparatus. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Prosecution of the Work 6.56 The Design-Builder will continue performance of the Work in accordance with the work progress schedule during all claims or disputes with the City. No Work may be delayed or postponed pending resolution of any disputes or disagreements, except as the Design-Builder and the City may otherwise agree in writing. City's Right to Do the Work 6.57 If the Design-Builder fails to prosecute the Work properly or fails to perform any provision of this Agreement, the City, after a three-day written notice to the Design-Builder, may, without prejudice to any other remedy it may have, make good such failures. The City may deduct the cost thereof from any payment due the Design-Builder. In cases of emergency, the City may prosecute such Work without notice or delay and may deduct the cost thereof from any payment due the Design-Builder. Indemnification 6.58 City has relied upon the professional ability and training of Design-Builder as a material inducement to enter into this Agreement. Design-Builder represents that all of its work will be performed in accordance with generally accepted professional practices and standards as well as the requirements of applicable federal, state, and local laws,it being understood that acceptance of a Design-Builder's work by City will not operate as a waiver or release. Design-Builder agrees to indemnify and defend the City, its officers, employees, agents, and representatives and hold them harmless from any and all liability, causes of action, claims, losses, damages, judgments, or other costs or expenses,including attorney's fees and witness costs (at both trial and appeal level,whether or not a trial or appeal ever takes place including any hearing before federal or state administrative agencies),that may be asserted by any person or entity which in any way arise from, during, or in connection with the performance of the work described in this Agreement, except liability arising out of the sole negligence of the City and its employees. Such indemnification will also cover claims brought against the City under state or federal worker's compensation laws. If any aspect of this indemnity is found to be illegal or invalid for any reason whatsoever, such illegality or invalidity does not affect the validity of the remainder of this indemnification. Claims for other than Professional Liability. Design-Builder agrees to indemnify, defend, save, and hold harmless the City of Tigard,its officers,employees,agents,and representatives from all claims,suits,or actions and all expenses incidental to the investigation and defense thereof,of whatsoever nature,including intentional acts resulting from or arising out of the activities of Design-Builder or its Subcontractors, sub-consultants, agents or employees in performance of this Agreement at both trial and appeal level,whether or not a trial or appeal ever takes place including any hearing before federal or state administrative agencies. If any aspect of this indemnity is found to be illegal or invalid for any reason whatsoever, such illegality or invalidity does not affect the validity of the remainder of this indemnification. Claims for Professional Liability. Design-Builder agrees to indemnify, defend, save, and hold harmless the City of Tigard, its officers, employees, agents, and representatives from all claims, suits, or actions and all expenses incidental to the investigation and defense thereof, to the extent arising out of the professional negligent acts, errors or omissions of Design-Builder or its Subcontractors, sub-consultants, agents, or employees in performance of professional services under this agreement. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Any work by Design-Builder that results in a design of a facility that is not readily accessible to and usable by individuals with disabilities as these terms are defined by generally accepted professional practices and standards as well as the requirements of applicable and non-conflicting federal, state, and local laws under similar circumstances and at the same time of this agreement will be considered a professionally negligent act, error,or omission. Nothing in the foregoing requires any indemnity made void by ORS 30.140. Prevailing Wage Rates 6.59 The Design-Builder must comply with the prevailing wage rate requirements of ORS 279C.800 to 279C.870 at the time this Agreement first constitutes a binding and enforceable obligation on the part of the Design-Builder to perform or arrange for the performance of construction,reconstruction,major renovation, or painting, or when the GMP Amendment is executed, whichever occurs first. The existing prevailing rates of wage which may be paid to workers in each trade or occupation required for this Work and employed in the performance of this Work by the Design-Builder or a Subcontractor, or any other person doing or contracting to do all or any part of the Work as established by the Oregon State Bureau of Labor and Industries (`BOLI' https://www.oregon.gov/boli/employers/Pages/prevailing-wage-rates.aspx Design-Builder and any Subcontractors must post the prevailing wage rates and fringe benefits as required by ORS 279C.840. A. Workers in each trade or occupation required for this Work and employed in the performance of this Work by the Design-Builder,a Subcontractor,or any other person doing or contracting to do all or any part of the Work, will be paid not less than the minimum hourly rate of wage specified in the foregoing paragraph. The Design-Builder will ensure that each subcontract includes a provision that workers be paid not less than the minimum hourly rate of wage specified in the foregoing paragraph. B. The Design-Builder must have a public works bond filed with the Construction Contractors Board as provided by ORS 279C.836. In every subcontract, the Design-Builder will include a provision requiring the Subcontractor to have a public works bond filed with the Construction Contractors Board,unless exempt,as provided by ORS 279C.836. C. The City will pay the fee that is required to the commissioner of the Bureau of Labor and Industries under ORS 279C.825(1). Labor Relations 6.60 The Design-Builder will be responsible for labor relations and will seek to resolve disputes between itself and its employees. Any labor dispute arising from this Agreement that causes a disruption of the City's operations will be to the account of and the responsibility of the Design-Builder. ARTICLE 7—WORK BY OTHERS 7.1 The Design-Builder will afford utility service companies, other contractors, and City employees reasonable access to the Work. It will allow storage of material and execution of work by others. It will properly connect and coordinate its Work with work by others. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 7.2 Notice will be given to the Design-Builder prior to the start of any additional work by others not noted in this Agreement. If the Design-Builder believes that the performance of such additional work by the City or others involves additional expense to the Design-Builder or requires an extension of the Contract Time, the Design-Builder will notify the City in writing. 7.3 If any part of the Design-Builder's Work depends upon the work of any other contractor,utility service company, or the City, the Design-Builder will inspect and promptly report to the City in writing any reasons that render work by others unsuitable. The Design-Builder's failure to report unsuitability of work by others constitutes the Design-Builder's acceptance of the work by others as fit and proper for integration with the Design-Builder's Work. Latent or non-apparent defects and deficiencies in the work by others will be reported to the City in writing promptly upon discovery. 7.4 The Design-Builder will do all cutting, fitting, and patching of the Work that may be required to make its parts come together properly and integrate with such other work. The Design-Builder will not endanger any work by others. The Design-Builder may cut or alter work by others only with the written consent of the City and those whose work will be affected. 7.5 Unless otherwise specified, the City is the final authority regarding coordination issues between the Design-Builder and work by others. ARTICLE 8— CITY'S STATUS Project Manager 8.1 The City's Project Manager will be the City's representative during the design and construction phases of the Work. 8.2 The Project Manager will resolve any and all questions which may arise as to Agreement compliance. The Design-Builder will at all times carry out and fulfill the City's instructions and directions insofar as they concern the Work to be performed under this Agreement. A. The Project Manager's authority includes,but is not limited to: 1. Determining the quantity, quality, and acceptability of material furnished and Work performed. 2. Reviewing and approving/disapproving the manner of performance and rate of progress of the Work. 3. Stopping the Work whenever such stoppage is deemed necessary. 4. Administering this Agreement. 5. Determining acceptable fulfillment of this Agreement by the Design-Builder. B. Written approval by the Project Manager signifies favorable opinion and qualified consent. It does not carry with it: (1) certification, (2) assurance of completeness, (3) assurance of quality, or (4) assurance of accuracy concerning details, dimensions, and quantities. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 C. Written approval by the Project Manager will not relieve the Design-Builder from responsibility for: (1) errors,(2)improper fabrication,(3) nonconformance with requirements,or(4) deficiencies within the Design-Builder's control. Clarifications and Interpretations 8.3 The Project Manager will issue with reasonable promptness such written clarifications or interpretations of this Agreement as may be necessary. If the Design-Builder believes that a written clarification or interpretation justifies an increase in the Guaranteed Maximum Price or the Contract Time, the Design-Builder may notify the City as provided in Article 9. Rejection of Defective Work 8.4 The Project Manager is authorized to disapprove or reject Work which is Defective and to require additional inspection or testing of the Work whether or not the Work is fabricated,installed, or completed. City Inspectors 8.5 The City will assign City inspectors who are authorized to: A. Inspect the Work as it is performed and all material being furnished. Such inspections may extend to all or any part of the Work and to the preparation, fabrication, or manufacture of the material to be used. B. Call the attention of the Design-Builder to any failure of the Work to meet this Agreement. C. Reject material not meeting the requirements of this Agreement. D. Suspend that part of the Work affected by Agreement nonconformance until the issue can be referred to and a decision issued by the Project Manager. 8.6 City inspectors are not authorized to: A. Supervise or perform any other duties for the Design-Builder or interfere with the Design- Builder's management of the Work. B. Give final approval or acceptance of any portion of the Work. C. Issue instructions or directions contrary to this Agreement. 8.7 No act or failure to act on the part of a City inspector will render the City liable in any way,nor relieve the Design-Builder from fulfilling all of the terms and conditions of this Agreement. Limitations on the City's Responsibilities 8.8 The City is not responsible for the acts or omissions of the Design-Builder or the Design-Builder's employees, Subcontractors,manufacturers, fabricators, suppliers,distributors,or any other persons at the site or otherwise performing any of the Work, or their agents, or employees. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 8.9 The City is not responsible for the Design-Builder's means, methods, procedures, sequences, or techniques of construction, or related safety precautions and programs, except as specified in the Design- Build Documents. 8.10 The City is not responsible for the Design-Builder's failure to perform the Work in accordance with this Agreement. ARTICLE 9— CHANGES Changes in the Work 9.1 Without invalidating this Agreement,the City may,at any time,order additions,deletions,or revisions to the Work by written Change Order or Change Directive. All such additions to or revisions of the Work will be performed in accordance with the applicable provisions of this Agreement. If the City and Design- Builder agree on the terms and conditions related to a change in the Work, an Amendment will be executed to adjust the Guaranteed Maximum Price, schedule,or both. If the City and Design-Builder cannot agree on the adjustment to the Guaranteed Maximum Price, schedule, or both,the City may issue a Change Directive. If the Design-Builder disagrees with any City-issued Change Directive, the Design-Builder may assert a claim in accordance with Article 14. The Design-Builder will not receive compensation for changes absent prior written approval from the City. 9.2 If the Design-Builder believes that a Change Directive or Agreement interpretation or clarification by the City will require a change in the Guaranteed Maximum Price or the Contract Time, the Design-Builder will so notify the City in writing within seven days after the Design-Builder receives the Change Directive or Agreement interpretation or clarification. 9.3 If directed by the City, the Design-Builder will immediately proceed with the changes to the Work involved upon receipt of a Change Directive. If. (a) the Design-Builder fails to submit a cost estimate within 15 days of receipt of the Change Directive (or earlier if requested), or other request for a proposed change, (b) the Parties fail to agree as to the cost or schedule impact,or (c) the City for any reason deems it necessary, the City in its discretion may either (i) order the Design-Builder to account for cost using the force account method described in Article 10.2.13, or (ii) issue a unilateral change to the Guaranteed Maximum Price in accordance with the City's estimate of cost. If the City disputes whether the Design-Builder is entitled to additional compensation for the work at issue, the City may in its discretion proceed with either approach above (with a full reservation of rights regarding lack of entitlement) or the City may proceed under the disputed change order method described in Article 9.4 herein. 9.4 If the City and the Design-Builder disagree upon whether Design-Builder is entitled to be paid for any services required by the City, or if there are any other disagreements over the scope of Work or proposed changes to the Work, the City and Design-Builder will resolve the disagreement pursuant to Article 14. As part of the negotiation process,Design-Builder will furnish the City with a good faith estimate of the costs to perform the disputed services in accordance with the City's interpretations. If the Parties are unable to agree and the City expects Design-Builder to perform the services in accordance with the City's interpretations, Design-Builder will proceed to perform the disputed services, conditioned upon the City issuing a written order to Design-Builder: (i) directing Design-Builder to proceed, and (ii) specifying the City's interpretation of the services that are to be performed. If this occurs,Design-Builder is entitled to submit in its Applications for Payment an amount equal to 50 percent of its reasonable estimated direct cost, and the City agrees to pay such amounts to the extent they are reasonable,with the express understanding that: (x) such payment by the DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 City does not prejudice the City's right to argue that it has no responsibility to pay for such services, (y) receipt of such payment by Design-Builder does not prejudice Design-Builder's right to seek full payment of the disputed services if the City's order is deemed to be a change to the Work, and (z) the fact that 50 percent payment has been temporarily acknowledged or paid is not admissible by either party in any dispute resolution proceeding(including but not limited to arbitration or litigation) for the purpose of showing that either party conceded any aspect of the other party's position, it being understood that the 50 percent provisions of this paragraph are intended solely to facilitate completion of the Project while fully preserving both Parties positions for dispute resolution. 9.5 The Design-Builder will continue performance of the Work, including the change, during the negotiation of the Change Order, even if a dispute arises which delays or prevents agreement on the terms and conditions of the Change Order. 9.6 Any Change Order constitutes an accord and satisfaction with respect to issues related to changes in the Guaranteed Maximum Price and the Contract Time. The Change Order will be deemed to contain all the costs and credits relating to changes. 9.7 To assist in the preparation of a Change Order, the Design-Builder will give the City a detailed cost estimate and a proposed schedule adjustment if a change in Contract Time is necessary. The cost estimate must include a line item for each category of cost reimbursable under the Agreement,be submitted in writing to the City within 10 days after the City orders the additional work and demonstrate satisfaction of the requirements set forth in Article 10. If a Change Order includes multiple,unrelated changes,the cost estimate and proposed schedule adjustment must treat those changes independently. 9.8 The Parties will negotiate to resolve any disagreements over the cost estimate or proposed schedule adjustment. The negotiated cost estimate will be the basis for increasing or decreasing the Guaranteed Maximum Price. Based upon the negotiated cost estimate and schedule adjustment,the City will prepare,and the Parties will sign a Change Order. Change of Contract Time 9.9 All time limits stated in this Agreement are of the essence. Contract Time may be changed only by a Change Order. Any extension in Contract Time will be based on written notice delivered to the City within 15 days of the occurrence of the event precipitating the request. The Design-Builder will deliver a work progress schedule analysis or summary justifying the time extension within 30 days of such occurrence. Failure to deliver any documentation to the City within the time limits specified above will completely foreclose consideration of an extension of Contract Time and all rights and remedies arising therefrom. 9.10 Time extensions will be granted only when conditions described in Article 9.11 exist and when the City agrees that the Work progress schedule substantiates the need. A. An adjustment of Contract Time will be the Design-Builder's sole remedy for any delay in performing the Agreement, including without limitation any delay in achieving contractually required Substantial Completion, Final Acceptance, or milestone dates. To the extent the delay is unreasonable and is caused by the acts or omissions of the City or persons acting for the City, the Design-Builder is not precluded from the recovery of damages or from an equitable adjustment. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 9.11 Extension of Contract Time will be determined by the City and will be an equitable adjustment if all or a part of the Work is hindered, delayed,or suspended by an Act of God, act of war,act of terrorism,or the acts or omissions of the City or the City's commissioners, employees, contractors, or agents. 9.12 Requests for extension of Contract Time will not be considered for: (1) contention that insufficient time was specified in this Agreement; (2) delays which affect the Design-Builder's planned early completion but not the specified Contract Time; (3) suspensions made at the request of the Design-Builder; (4) delays caused by labor disputes involving the Design-Builder or its Subcontractors; or (5) delays caused by issues known and addressed in this Agreement. ARTICLE 10—SUBCONTRACTS 10.1 For the purposes of this article, "subcontract"includes without limitation subcontracts at any tier for construction services or supplies. 10.2 An adjustment for the changes in the Work will be made in accordance with one or a combination of the following methods as the Design-Builder may elect: A. Fixed price Change Orders as supported by the breakdown of estimated costs. B. Force account Change Orders in accordance with the 2008 Oregon Standard Specifications for Construction,with the City's prior written authorization. Fixed Price Subcontractor Change Orders 10.3 Except as otherwise provided by this Article or agreed to in writing by the City, subcontract change orders must meet the following requirements. A. Direct Costs 1. Material (itemize) a) The cost to the Subcontractor for the material directly required for the performance of the changed Work. Such cost of material may include the cost of transportation. No delivery charges will be allowed unless the delivery is specifically for the changed Work. b) Trade discounts offered by the supplier to the Subcontractor will be credited to the City. If the material is obtained from a source owned wholly or in part by the Subcontractor, payment thereof will not exceed the current wholesale price for the material. The term "trade discount"includes the concept of cash discounting. c) If,in the opinion of the City,the cost of the material is excessive or if the Subcontractor fails to furnish satisfactory evidence of a cost to it from the supplier then,in either case, the cost of the material will be deemed to be the lowest current wholesale price at which similar material is available in the quantities required. d) The City reserves the right to furnish such material as it deems advisable, and the Subcontractor has no claims for cost or profit on material furnished by the City. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 2. Labor (person-hours,rates by crafts) a) Payroll costs will include, but not be limited to, salaries and wages and fringe benefits, including social security contributions,unemployment,excise and payroll taxes,workers' compensation, health and retirement benefits, sick leave, vacation, and holiday pay applicable thereto. The costs for all supervision,including general superintendents and foremen, will be included in the markups established by this Agreement. The only exception to this is working foremen who perform manual labor. No labor charges will be accepted for engineering or proposal preparation. These costs will be included in the markups established by this Agreement. b) Overtime and premium time pricing will be allowed only for labor which is authorized by the City to be performed after normal working hours, or on Saturday, Sunday, or legal holidays. 3. Equipment (type, size, attachments,hours,rate) a) The cost to the Subcontractor for the use of equipment directly required in the performance of the changed Work. No mobilization or demobilization cost will be allowed for equipment already on site. b) For equipment owned, furnished, or rented by the Subcontractor, costs allowed will be the actual usage costs incurred as supported by the Subcontractor's published standard equipment rates or rental invoices. Rates charged may not exceed the rates established by the Rental Rate Blue Book. c) The amount to be paid to the Subcontractor for the use of equipment as set forth above will constitute full compensation for the cost of fuel, power, oil, lubricants, small equipment, necessary attachments, repairs and maintenance of any kind, depreciation, storage, insurance, labor (except for equipment operators), and any and all costs incidental to the use of the equipment. 4. Direct costs do not include: a) Payroll costs and other compensation of the Subcontractor's officers, executives, principals of partnerships and sole proprietorships, general managers, engineers, architects,estimators,lawyers,auditors,accountants,purchasing and contracting agents, expeditors,timekeepers,clerks, superintendents and foremen,and similar administrative personnel. These costs will be considered administrative costs covered by the Subcontractor's fee. b) Expense of the Subcontractor's principal and branch offices other than the Subcontractor's office at the site. c) Any part of the Subcontractor's capital expenses. Interest on the Subcontractor's capital employed for the Work. Charges against the Subcontractor for delinquent payments. d) Costs due to the negligence of the Subcontractor,any Subcontractor,or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Negligence costs include correction of Defective Work, disposal of material wrongly supplied, and making good any damage to property. e) Other overhead or general expense costs of any kind. f) Cost of small tools and supplies. g) Cost of safety programs. h) Costs of insurance. i) Cost of warranty work. B. Subcontract Costs 1. Direct costs will be as outlined in Article 10.3,A. 2. Subcontractors' (at any tier) markups for overhead and profit may not exceed 15 percent of the direct costs. C. Subcontractor's Markup 1. The Subcontractor's markup for overhead and profit may not exceed the following: a) No more than 5 percent of material,labor and equipment costs incurred; and b) No more than 5 percent on payments to Subcontractors at all tiers. 2. The amount of credit to the City for a change which results in a net decrease in cost will be the amount of the actual net decrease plus a deduction in the Subcontractor's overhead and profit markup by an amount equal to that allowed above. 3. When both additions and credits are involved in any one change,the adjustment in the Subcontractor's overhead and profit markup will be computed on the basis of the net change in cost. 4. Notwithstanding the foregoing, the cumulative total of all markups on a cost by Subcontractors at all tiers may not exceed 30 percent. ARTICLE 11—WARRANTY; TESTS AND INSPECTIONS; CORRECTION, REMOVAL, OR ACCEPTANCE OF DEFECTIVE WORK Tests and Inspections 11.1 Testing will be by the 2021 Oregon Standard Specifications for Construction and, as necessary, as described in the GMP Amendment. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 11.2 This section intentionally left blank. 11.3 This section intentionally left blank. Uncovering Work 11.4 The Design-Builder, at the City's request, will uncover, expose, and reconstruct, or otherwise make available for observation,inspection, testing, or approval, any portion of the Work. The Design-Builder will furnish all necessary labor,material, and equipment. The cost will be allocated as follows: A. The Design-Builder will bear the cost if the Work was covered contrary to the direction or without approval of the City. B. The Design-Builder will bear the cost if the Work was covered without concurrence of the City unless the Design-Builder had given the City timely notice of intent to cover such Work, and the City did not act with reasonable promptness in response to such notice. C. The Design-Builder will bear the cost if the previously installed Work is found to be Defective. D. For situations not covered above, the Design-Builder may be allowed an increase in the Guaranteed Maximum Price or an extension of the Contract Time, or both, directly attributable to such uncovering, exposure, observation, inspection, testing, and reconstruction if it makes a request therefor as provided in Articles 9 and 10. Warranty 11.5 Design-Builder unconditionally warrants all the construction activities constituting the Work and materials under this Agreement, including additional work authorized under Change Orders, against any defects whatsoever,for one year from the date of acceptance by the City,except that manufacturers'warranties and extended manufacturer warranties as specified in the contract documents or otherwise is a standard manufacturer product warranty may not be abridged. In addition to its right to proceed on the warranty, the City may recover for breach of contract,negligence, or any other theory other than the express warranty even if defects do not become evident during the warranty period. A. Design-Builder will perform all Work in accordance with all specifications, correcting any Work not in compliance with specifications,and for all repairs of damage to other improvements,natural and artificial structures, systems, equipment, and vegetation caused by, or resulting in whole or in part from occurrences beginning during the warranty period and are the result of defects in construction or materials installed under this Agreement. Design-Builder will be responsible for all costs associated with site cleanup and remediation caused by, or resulting in whole or in part from, defects in its work or materials. B. Within 10 calendar days of the City's written notice of defects,Design-Builder or Design-Builder's surety will start repair of the defects and all related damage. If Design-Builder or Design-Builder's surety fails to correct and repair the defects in a timely manner, the City may have the correction and repair done by others. Design-Builder or Design-Builder's surety will promptly reimburse the City for all expenses incurred to correct and repair the defects. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 C. In case of an emergency where delay could result in serious loss or damage, the City may make emergency corrections and repairs without written notice. Design-Builder or Design-Builder's surety will promptly reimburse the City for all expenses incurred to correct and repair the defects. D. All Work done to comply with the warranty will itself be warranted for one year beginning on the date of the City's third notification of the corrections, repairs, replacements, or changes. 11.6 The Design-Builder further warrants that the construction work will conform to the requirements of the Agreement and will not be Defective for any reason, and that all materials and equipment selected by the Design-Builder or Subcontractor will be suitable for the purposes indicated in the Design-Build Documents. Work, materials, or equipment not conforming to these requirements may be considered Defective. The Design-Builder's warranty excludes remedy for damage or defect caused by abuse,alterations to the Work not executed by the Design-Builder, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the City, the Design-Builder will furnish satisfactory evidence as to the kind and quality of materials and equipment. 11.7 Without limitation of any remedy of the City, upon Substantial Completion or termination of the Agreement, the City is entitled to enforce at its option any and all Subcontractor warranties relating to Work performed and materials and equipment furnished by such Subcontractors. The Design-Builder agrees to perform the Work in such manner so as to preserve any and all such Subcontractor warranties. The Design- Builder also will collect, assemble in a binder, and submit to the City written Subcontractor warranties and related documents, including without limitation from Subcontractors at all tiers performing Work and furnishing materials, equipment, appliances, and other components of the Project. 11.8 Effective upon final payment, the written demand of the City, or upon the insolvency, bankruptcy, dissolution, or other incapacity of the Design-Builder, the Design-Builder assigns to the City all Subcontractors'warranties in materials and equipment and other portions or components of the Work. 11.9 The Design-Builder will collect, assemble in a binder, and submit to the City written warranties and related documents provided by Subcontractors, including but not limited to suppliers of equipment, appliances, and other components of the Project, at all tiers. All such written warranties will extend to the City. The Design-Builder hereby assigns to the City any warranty or maintenance obligation provided by a Subcontractor or supplier in excess of that required by this Agreement. Correction or Removal of Defective Work 11.10 In addition to the Design-Builder's warranty obligations and all other remedies of the City, if at any time during the period ending one year after Substantial Completion the Work is found to be Defective, the Design-Builder must promptly correct all Defective Work without added cost to the City, whether or not fabricated, installed, or completed or, at the City's option, remove it from the site and replace it with Work that meets the Agreement requirements. If the Design-Builder does not promptly comply with the terms of such instructions, or in an emergency where delay would cause risk of loss or damage, the City may have the Defective Work corrected or removed and replaced, and all direct and indirect costs of such correction or removal and replacement, including compensation for additional professional services, will be paid by the Design-Builder or the Design-Builder's surety. 11.11 Nothing contained in Article 11.10 maybe construed to establish a period of limitation with respect to other obligations the Design-Builder has under the Design-Build Documents or applicable Law. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Establishment of the period for correction of Work as described in Article 11.10 relates only to the specific obligation of the Design-Builder to correct the Work, and has no relationship to the time nor may otherwise be deemed to limit the time within which the obligation to comply with the Design-Build Documents or applicable Law may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Design-Builder's liability with respect to the Design-Builder's obligations other than specifically to correct the Work. City May Correct Defective Work 11.12 If the Design-Builder fails,within three days after written notice from the City,to proceed to correct, or to remove and replace Defective Work as required by the City, or if the Design-Builder fails to perform the Work in accordance with this Agreement(including any requirements of the work progress schedule),the City may correct and remedy any such deficiency. In exercising the rights under this paragraph, the City will proceed expeditiously. To the extent necessary to complete corrective and remedial action, the City may: (1) exclude the Design-Builder from all or part of the site; (2) take possession of all or part of the site; (3) suspend the Design-Builder's services related thereto; (4) take possession of the Design-Builder's tools, appliances, construction equipment and machinery at the site; or (5) incorporate in the Work material stored at the site or for which the City has paid the Design-Builder but which has been stored elsewhere. The Design-Builder must allow the City's representatives, contractors, agents, and employees such access to the site as may be necessary to exercise the rights under this paragraph. All direct and indirect costs in exercising such rights will be charged against the Design-Builder. A Change Order will be executed incorporating the necessary revisions to this Agreement and a reduction in the Guaranteed Maximum Price. Such direct and indirect costs will include, in particular but without limitation: (1) additional professional services required; and (2) repair and replacement of the Work of others destroyed or damaged by correction, removal, or replacement of the Design-Builder's Defective Work. The Design-Builder will not be allowed an extension of the Contract Time because of any delay in performance of the Work attributable to the exercise of the City's rights under this section. ARTICLE 12—PAYMENTS TO THE DESIGN-BUILDER AND COMPLETION Before Request for Progress Payment 12.1 Prior to submitting the first request for progress payment, the Design-Builder must submit the following to the City: A. Work progress schedule; B. Schedule of values; C. Cash flow schedule; D. Final submittal schedule; and E. Wage certification. 1. If the Design-Builder is required to file a certified statement under ORS 279C.845, and the certified statement has not been filed as required,the City will retain 25 percent of any amount earned under this Agreement until the certified statement has been filed. The City will pay the Design-Builder the amount retained within 14 days after the missing certified statement has DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 been filed. Failure of a Subcontractor to file a certified statement required under ORS 279C.845 will not trigger retainage under this paragraph. 12.2 After the City's receipt and acceptance of the items listed under Article 12.1 above,the Design-Builder will attend a pre-progress payment meeting,if requested by the City,to discuss payment requests,procedures, and requirements. Request for Progress Payment 12.3 Thirty days or more following the Work Start Date,the Design-Builder may request the first monthly progress payment on Work completed by the date of the request. The request will be made on the Design- Builder's Request for Payment form (form follows these General Conditions) and be accompanied by supporting documentation required by this Agreement. Requests must be signed by the Design-Builder and submitted to the City for review. 12.4 Requests for payment will be sent to the City's project manager identified below: Attn: Shasta Billings-Beck Address: 13125 SW Hall Blvd Tigard, OR 97223 Phone: (503) 718-2698 Email: shastab@tigard-or.gov 12.5 Material delivered and stored on site but not yet incorporated in the Work may be included in the request for progress payment subject to approval by the City and the following. A. No payment will be made for material costing less than $50,000 total. B. The City's title to and interest in the material must be clearly established and free of all liens or other encumbrances. C. Value must be established by invoice, freight bill, or other document. D. Payment for stored material will be limited to 90 percent of the net cost invoiced to the Design-Builder. E. When there is a bid price on material in place, the City will estimate the cost of placing. The progress payment will be limited to 90 percent of the bid price less the estimated cost of placing. F. Risk of loss remains with the Design-Builder. G. Materials must be stored in a location that is acceptable to the City where the City has access to said materials. Additionally, the materials must be stored in a fashion that does not compromise the materials in any way. 12.6 Progress payments may not be construed as acceptance or approval of the Work or waiver of any defects in the Work. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Retainage 12.7 This section intentionally left blank. Refer to GMP Amendment. Review of Request for Progress Payment 12.8 Within 15 days, the City will review each request for progress payment and recommend payment or respond in writing to the Design-Builder with the reasons the City is requiring resubmittal of the pay request before it can be approved. 12.9 The City may refuse to make payment and withhold payment,in whole or any part, to the extent: A. The Work is Defective, or completed Work has been damaged requiring correction or replacement; B. Written claims have been made against the City or liens have been filed in connection with the Work; C. The City has been required to correct Defective Work or to complete the Work; D. The Design-Builder's prosecution of the Work in accordance with this Agreement is unsatisfactory; E. The Design-Builder has failed to make payments covered by past progress payments to Subcontractors, or for labor or material; F. The Design-Builder is in breach of this Agreement; G. Testing of work element failed or was not performed; or H. Specified warranties for work products are not provided to the City. Substantial Completion 12.10 When the Design-Builder considers the entire Work ready for its intended use,it will certify in writing that the entire Work is Substantially Complete and request a letter confirming Substantial Completion. Within 15 days thereafter, the Design-Builder and the City will inspect the Work to determine the status of completion, to include representatives of the lead designer. If, upon written recommendation by the lead designer, the City considers the Work Substantially Complete, the City will, within 15 days of date of inspection, execute and deliver to the Design-Builder a letter confirming Substantial Completion with a list of items begun by the lead designer and revised and issued by the City to be completed or corrected. The letter will state the date of Substantial Completion. If the City does not consider the Work Substantially Complete, the City will notify the Design-Builder in writing giving reasons. Warranties and operation and maintenance manuals must be submitted and approved by the City and training completed for the Work to be considered Substantially Complete. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 12.11 The City may exclude the Design-Builder from that part of the Work after the date of Substantial Completion. The City will allow the Design-Builder reasonable access to complete or correct items on the list. 12.12 The Design-Builder may request, in writing, that the City confirm Substantial Completion for a part of the Work using the inspection and correction procedure described above. The City will only consider confirming Substantial Completion for a part of the Work if the City desires that part to become operational. 12.13 The City may allow the Design-Builder use of equipment installed as part of the Work prior to Substantial Completion, subject to the Design-Builder: A. Obtaining the City's written approval; B. Maintaining the equipment and preparing and maintaining a log recording all maintenance activities; and C. Returning equipment to "as-new" condition upon Substantial Completion. Partial Utilization 12.14 The City may request,in writing,the use of any part of the Work which maybe used without significant interference with construction of other parts of the Work. If the City requests use of any part of the Work prior to Substantial Completion of all the Work, the City will issue to the Design-Builder a letter granting Substantial Completion for that portion of the Work with a list of items to be completed or corrected. The City will assume responsibility for security, safety, operation, maintenance, and utilities for that part of the Work while it is being used by or under the control of the City. Final Inspection and Final Acceptance 12.15 When the Design-Builder considers the entire Work, or an agreed-upon portion thereof, to be complete, the Design-Builder will certify, in writing, that the Work is complete and request a letter granting Final Acceptance. Within 30 days after receipt of the Design-Builder's certification, the City will inspect the Work,and the lead designer will certify that it has reviewed the Work, and,upon recommendation by the lead designer, the City will notify the Design-Builder, in writing, of Final Acceptance or of all particulars in which this inspection reveals that the Work is incomplete or Defective. The Design-Builder will immediately take such measures as are necessary to remedy such deficiencies and allow an additional 30 days for the City to complete another inspection of the Work. Issuance of Final Acceptance by the City does not constitute: (1) a waiver of any right or remedy of the City under the Agreement or Law, or (2) approval of or acquiescence to any breach of this Agreement. The Design-Builder's certification will be preceded or accompanied by all documentation called for in this Agreement,including but not limited to: A. Redline Drawings for creating record drawings; B. Bonds,if any; C. Software or code use rights documentation; D. Certificates of inspection from jurisdictional authorities; DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 E. Releases, waivers, or exoneration of all liens arising out of or filed in connection with the Work; F. The Design-Builder's Waiver of Claims to Date form certifying that all payrolls and material bills and other indebtedness connected with the Work for which the City might in any way be responsible have been paid or otherwise satisfied; and G. Consent of surety,if any,to final payment. Final Payment 12.16 This section intentionally left blank. Refer to GMP Amendment. 12.17 This section intentionally left blank. Design-Builder's Continuing Obligation 12.18 The Design-Builder's obligation to perform and complete the Work in accordance with this Agreement is absolute and cannot be waived in whole or in part by the City except by express written instrument signed by an authorized City representative. Any such waiver will specifically identify the Work that the City is willing to accept and the manner in which that Work fails to meet the original requirements of the Agreement. Accordingly, and by way of example only, none of the following will constitute acceptance of Work not in accordance with this Agreement or release the Design-Builder from obligation to perform the Work in accordance with this Agreement,regardless of whether any defect, deficiency,or damage is patent or latent: A. Any act of acceptance by the City,except in an express written instrument as described above; B. Any correction by the City of Defective Work; C. Use, operation,or occupancy of the Work or any part of the Work by the City; D. Recommendation by City staff for any progress or final payment; E. Payment by the City to the Design-Builder; F. Issuance of a letter of Substantial Completion; or G. Issuance of a letter of Final Acceptance. Design-Builder's Warranty of Title 12.19 The Design-Builder warrants that title to all Work and material covered by any request for payment, whether incorporated in the Work or not,will pass to the City at the time of payment. Title will be free and clear of all liens, claims, security interests,and encumbrances. Waiver of Claims 12.20 The acceptance of final payment will constitute a waiver of all claims by the Design-Builder against the City other than those previously made in writing and still unsettled. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Other Damages 12.21 The City will have the right to recover from the Design-Builder and, to the extent permitted by Law, to deduct from any payment due the Design-Builder,the amount of any loss suffered by the City on account of the failure of the Design-Builder, Subcontractor, anyone directly or indirectly employed by any of them, and anyone for whose acts any of them may be liable to comply with the rules and regulations referenced or contained in this Agreement. ARTICLE 13—SUSPENSION OR TERMINATION OF THE WORK City May Suspend the Work 13.1 The City may, at any time and without cause, suspend the Work or any portion thereof for a period of not more than 90 consecutive days by notice,in writing,to the Design-Builder. This notice will fix the date on which Work will stop and the date on which it will resume. The Design-Builder must resume the Work on the date so fixed. The Design-Builder may be allowed an increase in the Guaranteed Maximum Price or an extension of the Contract Time, or both, directly attributable to the suspension. 13.2 If the Work is Defective, or if the Design-Builder fails to supply sufficient skilled workers or suitable material or equipment,or if the Design-Builder fails to perform the Work in such a manner that the completed Work conforms to this Agreement, the City may order the Design-Builder to suspend the Work, or any portion thereof,until the cause for such order has been eliminated. However,this right of the City to suspend the Work does not give rise to any duty on the part of the City to exercise this right for the benefit of the Design-Builder or any other party. 13.3 In the event the Design-Builder, Subcontractor, or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable fails to comply with the rules and regulations referenced in this Agreement, the City may suspend the Work or any portion thereof. The suspension will continue until completion of any investigation or evaluation by the City and full compliance with any corrective measures which the City may reasonably require. The City will not be liable to the Design-Builder for any delay caused by such suspension,nor will there be any adjustment in the Guaranteed Maximum Price or Contract Time. City May Terminate the Work 13.4 The occurrence of any one or more of the following events will justify termination for cause: A. The Design-Builder is adjudged bankrupt or insolvent; B. The Design-Builder makes a general assignment for the benefit of creditors; C. A trustee or receiver is appointed for the Design-Builder or for any of the Design-Builder's property; D. The Design-Builder files petition to take advantage of any debtor's act,or to reorganize under bankruptcy or similar Laws; E. The Design-Builder fails to supply sufficient skilled workers or suitable material or equipment; DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 F. The Design-Builder fails to make prompt payments to Subcontractors or for labor and material; G. The Design-Builder disregards Laws, ordinances, rules, regulations, or orders of any public body having jurisdiction including,without limitation, ordinances adopted by the City and referenced in this Agreement, and the rules and regulations adopted by the City; H. The Design-Builder disregards the authority of the City; or I. The Design-Builder otherwise violates in any substantial way any provision of this Agreement. 13.5 The City may,after giving the Design-Builder a seven-day written notice: (1) terminate this Agreement for default; (2) exclude the Design-Builder from the site; (3) take possession of the site and the Design- Builder's tools, appliances, construction equipment and machinery at the site, or take possession of tools, appliances, construction equipment and machinery not at the site that is to be incorporated into the Work and for which Design-Builder received payment,and use the same to the full extent they could be used by the Design-Builder without liability to the Design-Builder for trespass or conversion; (4) take possession of and incorporate in the Work material stored at the site or for which the City has paid the Design-Builder but which is stored elsewhere; (5) finish the Work as the City may deem expedient, or (6) obtain an assignment of some or all of the subcontracts and purchase orders (including but not limited to agreements with Designers) relating to the uncompleted Work. By executing this Agreement, the Design-Builder agrees to execute documents necessary to affect the assignment of those subcontracts and purchase orders if requested by the City in the event of termination of this Agreement pursuant to this article. 13.6 Where the Design-Builder's services have been so terminated by the City, the termination will not affect any rights of the City against the Design-Builder then existing or which may thereafter accrue. Any retention or payment of moneys due the Design-Builder by the City will not release the Design-Builder from liability. City May Terminate the Work for Convenience 13.7 Upon giving the Design-Builder a seven-day written notice, the City may, without cause and without prejudice to any other right or remedy, elect to terminate this Agreement in whole or in part for the convenience of the City. In such case, the Design-Builder will be paid for the costs of all Work acceptably performed and installed,together with reasonable profit and overhead on those costs,and any justifiable costs actually sustained in the process of termination, including without limitation the cost of demobilization and termination of subcontracts,purchase agreements, and purchase orders. If this Agreement is terminated for default and it is subsequently determined through mediation, arbitration, or litigation that the termination was improper, this Agreement will be treated as if it had been terminated for the convenience of the City, and the Design-Builder will be entitled to payment under the provisions of this paragraph. 13.8 In the event of a termination for convenience, the Design-Builder remains liable for all elements of the Work actually performed by the Design-Builder or Subcontractors, or those for whom any of them are responsible, regardless of whether: (a) such performance occurred before or after the effective date of termination; or (b) the City provided an opportunity to cure. The Design-Builder's liability includes, but is not limited to, liability for having performed all Work according to the Design-Build Documents, industry standards, the Contract Time and schedule, and the other standards incorporated in this Agreement. The DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Design-Builder also remains liable for all representations,warranties, and guarantees to the extent applicable to the Work performed. ARTICLE 14—DISPUTE RESOLUTION 14.1 If the Design-Builder wishes to assert a claim, it must submit to the City a written statement of the claim within 30 Calendar Days after the Design-Builder first has knowledge of or reason to know of the facts upon which the claim is based. The statement of claim must recite the facts upon which the claim is based and include copies of all documentary evidence in support of the claim. Within 15 Calendar Days after receiving a claim, the City will respond in writing stating whether the claim is allowed, partially allowed, or denied. If the Design-Builder disputes the action taken by the City,the Design-Builder must deliver a written notice of dispute to the City within 15 Calendar Days after the Design-Builder receives the City's written response to the claim. The written notice of dispute will be entitled "Notice of Dispute." A claim is barred if the Design-Builder fails to comply with the foregoing notice of dispute requirement or fails to timely deliver the notice of dispute to the City. A. The City's Agreement is with the Design-Builder. It is the Design-Builder's responsibility to fully evaluate any claim before presenting it to the City. In addition, when a claim includes Work done or costs incurred by any Subcontractors or any person or entity other than the Design-Builder,the Design-Builder remains solely responsible for presenting the claim to the City. Claims that include Work done or costs incurred by any Subcontractors or any entity other than the Design-Builder will not be considered by the City unless the Design-Builder has: (1) completed and provided to the City its own written evaluation of the claim, (2) verified by its own independent review and evaluation of the amount of compensation sought, and (3) certified in writing the claim as follows: "Under penalty of law for penury or falsi acation, the undersigned, (Name) (D&t ), Co an certifies that this claim originating from the Subcontractor Com an for additional compensation (1) is being asserted by the Design-Builder in good faith, (2)is an accurate and reasonable statement, independently verified by Desi g - of the costs incurred in the amount of exclusive of interest; (3) was timely and properly submitted, and(4) is fully justified, documented and supported under the Agreement between the Parties and the amount requested accurately reflects the amount for which the Design-Builder believes the City is liable. Signature-- Date.- ignature:Date. 20 Subscribed and sworn before me this day of '120 Notary Public My commission expires " 14.2 The Parties will attempt to resolve all disputes by negotiation. Negotiation will be initiated at the earliest opportunity. Each party will freely share unprivileged information requested by the other and make a good faith effort to ensure that all relevant issues are fully developed and fairly presented to the other side. 14.3 If a dispute is not resolved through negotiation between the Design-Builder and the City, the Parties will submit the dispute to mediation. Either party may request mediation. The requesting party will suggest an independent mediator with the request for mediation. If the Parties cannot agree upon a mediator, either party may apply to the Presiding Judge, Washington County Circuit Court, for appointment of a mediator. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 The Parties will share equally in the fees and costs of the mediator. Mediation will be at Tigard, Oregon, unless the Parties agree otherwise. 14.4 If a dispute is not resolved by mediation,the Parties may,but are not required to,agree to submit the dispute to binding arbitration. The Parties will agree upon a single arbitrator, the applicable rules for arbitration, and the time and place of arbitration. 14.5 If a dispute cannot be resolved by mediation, and the Parties do not agree to submit the dispute to arbitration, either party may file a lawsuit to resolve the dispute in a court with proper jurisdiction located in Washington County, Oregon or for federal claims,in the U.S. District Court of Oregon, Portland. 14.6 Should any lawsuit, arbitration,or other action be commenced in connection with any dispute arising out of this Agreement, each party will bear all its costs and expenses. 14.7 Except to the extent performance may be legally excused under the particular circumstances, each party will continue to perform its duties under this Agreement while the resolution of a dispute is pending. Failure to comply with this requirement will be a material breach of this Agreement. ARTICLE 15—MISCELLANEOUS Computation of Time 15.1 Any period of time referred to in this Agreement by days will be computed to exclude the first and include the last day of such period. If the last day of any time period falls on a Saturday or Sunday or on a day made a legal holiday by the Law of the applicable jurisdiction, such day will not be included in determining the time period. Liability Claims 15.2 Should the City or the Design-Builder suffer injury or damage to person or property because of any error, omission, or act of the other party or of any of the other party's employees, contractors, or agents or others for whose acts the other party is legally liable, claim must be made: (1) in writing,and (2) to the other party within a reasonable time of the first observance of such injury or damage. Rights and Remedies; Survival 15.3 These General Conditions impose duties and obligations on the Agreement Parties and provide for rights and remedies. The rights and remedies available to each party are in addition to, and may not limit, actions allowed by Law or other parts of this Agreement. All representations,warranties,and guaranties made in this Agreement will survive final payment, termination (whether for cause or convenience), or completion of this Agreement. The content of this paragraph applies as if repeated specifically in this Agreement in connection with each duty, obligation, right, and remedy. Commencement of Limitations Period 15.4 As to acts, omissions, breaches of contract or warranty, negligence, misrepresentation, strict liability, fraud,or any other improper conduct of the Design-Builder or those persons or entities for whom the Design- Builder is responsible,whether occurring prior to or after completion of the Work, all applicable limitations periods may not commence to run and any alleged cause of action may not be deemed to have accrued unless DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 and until the City has actual knowledge of all three of the following: (1)the identity of all party(ies)responsible; (2) the actual magnitude of the damage or injury; and (3) the cause(s) of the damage or injury. The discovery rule provided herein applies in lieu of any otherwise applicable statute or case authority. Access to Records 15.5 Design- Builder must maintain all records relating to this Agreement for three (3) years after final payment. The City may examine, audit and copy Design-Builder's books, documents, papers, and records relating to this Agreement at any time during this period upon reasonable notice. Copies of these records must be made available upon request. Payment for the reasonable cost of requested copies will be made by the City. Audit Rights 15.6 The City may conduct financial and performance audits of the billings and services specified in this Agreement at any time in the course of the Agreement and during the three (3) year period established by Article 15.5 of this Agreement. Audits will be conducted in accordance with generally accepted auditing standards as promulgated in Government Auditing Standards by the Comptroller General of the United States Government Accountability Office. If an audit discloses that payments to Design-Builder exceed the amount to which the Design-Builder was entitled, the Design-Builder will repay the amount of the excess to the City. Force Majeure 15.7 Neither City nor Design-Builder will be considered in default because of any delays in completion and responsibilities hereunder due to causes beyond the control and without fault or negligence on the part of the Parties so disenabled,including but not restricted to,an Act of God or of a public enemy,civil unrest,volcano, earthquake, fire, flood, epidemic, quarantine restriction, area-wide strike, freight embargo, unusually severe weather or delay of Subcontractor or supplies due to such cause;provided that the Parties so disenabled will, within ten (10) days from the beginning of such delay, notify the other parry in writing of the cause of delay and its probable extent. Such notification will not be the basis for a claim for additional compensation. Each Party will, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and will, upon cessation of the cause, diligently pursue performance of its obligation under the Agreement. Non-Discrimination' 15.8 Design-Builder will comply with all federal, state, and local laws, codes, regulations, and ordinances applicable to the provision of services under this Agreement,including,without limitation: A. Title VI of the Civil Rights Act of 1964; B. Section V of the Rehabilitation Act of 1973; C. The Americans with Disabilities Act of 1990, as amended by the ADA Amendments Act (ADAAA) of 2008 (Pub L No 101- 336); and DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 D. ORS 659A.142,including all amendments of and regulations and administrative rules,and all other applicable requirements of federal and state civil rights and rehabilitation statutes, rules, and regulations. Hours of Labor, Pay Equity 15.9 In accordance with ORS 279B.235, the following are hereby incorporated in full by this reference: A. Design-Builder may not employ an individual for more than 10 hours in any one day,or 40 hours in any one week, except as provided by law. For contracts for personal services, as defined in ORS 279A.055, Design-Builder must pay employees at least time and a half pay for all overtime the employees work in excess of 40 hours in any one week,except for employees who are excluded under ORS 653.010 to 653.261 or under 29 U.S.C. 201 to 209 from receiving overtime. B. Design-Builder must give notice in writing to employees who work on a public contract, either at the time of hire or before commencement of work on the contract, or by positing a notice in a location frequented by employees, of the number of hours per day and days per week that the employees may be required to work. C. Design-Builder may not prohibit any of its employees from discussing the employee's rate of wage, salary, benefits or other compensation with another employee or another person and may not retaliate against an employee who discusses the employee's rate of wage, salary, benefits or other compensation with another employee or another person. D. Design-Builder must comply with the pay equity provisions in ORS 652.220. Compliance is a material element of this Agreement and failure to comply will be deemed a breach that entitles City to terminate this Agreement for cause. Compliance with State and Federal Laws/Rules 15.10 Design-Builder will comply with all applicable federal, state, and local laws, rules, and regulations applicable to the work in this Agreement. Severability 15.11 In the event any provision or portion of this Agreement is held to be unenforceable or invalid by any court of competent jurisdiction,the validity of the remaining terms and provisions will not be impaired unless the illegal or unenforceable provision affects a significant right or responsibility, in which case the adversely affected party may request renegotiation of the Agreement and, if negotiations fail, may terminate the Agreement. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 EXHIBIT 2 RESERVOIR 18 AND PUMP STATION PROJECT GUARANTEED MAXIMUM PRICE AMENDMENT Agreement No. Project No. This Amendment to the Design-Build Agreement ("Amendment") is entered into effective between the City of Tigard, Oregon ("City") and ("Design-Builder") and amends the Design-Build Agreement Reservoir 18 and Pump Station Project between City and Design-Builder dated . The Agreement is revised as follows: 1. Project Scope. Design-Builder shall construct ("GMP Work"). The GMP Work is described in more detail in the attached Exhibit A — Scope of Work. Design-Builder is required to furnish all materials, labor,water,tools,power, equipment, transportation, and other work needed to construct the GMP Work. 2. Contract Documents. This Amendment consists of the main text of this Amendment and the following exhibits: A. Exhibit A—Scope of Work B. Exhibit B—GMP Supporting Documents 3. GMP. The Parties agree that the Guaranteed Maximum Price ("GMP") for the Project is consisting of the Estimated Cost of the Work and Contingencies, summarized as follows: Estimated Cost of Work $0.00 General Conditions Fee $0.00 Design-Builder Fee $0.00 GMP Total (Total of Above) $0.00 4. Basis of GMP. The GMP is based on the GMP Supporting Documents included as Exhibit B, including the allowances, assumptions, exclusions, unit prices, and schedule designated in those documents. The GMP Supporting Documents are based on the Preliminary Engineering and any Construction Documents approved by the City. The Design-Build Documents remain in full force and effect;this Basis of GMP supplements design document requirements but does not replace them. A. GMP Encompasses Further Design Development. Design-Builder represents that the Drawings and Specifications upon which the Guaranteed Maximum Price is based are approximately % complete and that the Drawings and Specifications will require further development from Design-Builder's design team. In deriving the Guaranteed Maximum Price stated herein, Design-Builder has already anticipated and provided for this further design development and has included in the Guaranteed Maximum Price all costs expected or which reasonably could be expected for further design development, engineering and consultant services and reports, the creation and finalization of construction documents and issued-for- DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 construction drawings, all design-team contract administration services and site visits, and all construction labor,materials, equipment,general conditions, fee and all other costs necessary, incidental or inferable from the documents, physical access to the site, and information available to date in order to design and build the Project consistent with the Owner's Project Criteria, the scope description, the Drawings and Specifications, and all other design and Owner-supplied information to date. The Guaranteed Maximum Price does not include significant changes in Project scope, systems, kinds, and quality of materials, finishes or equipment after the date hereof,all of which,if required,will be incorporated by Change Order or Construction Change Directive. By executing the Agreement and upon execution of each Amendment to the Agreement, the Design-Builder is deemed to have included in the Guaranteed Maximum Price sufficient amounts to cover all of its obligations under or arising from the Agreement, at law, and otherwise, and to have allowed the necessary resources to enable Design-Builder to achieve Substantial Completion by the Scheduled Substantial Completion Date. B. Savings. To the extent that the contract sum is less than the Guaranteed Maximum Price, the difference will constitute savings ("Savings' . At the time of final payment to Design-Builder, Design-Builder will be entitled to retain % and the City will be entitled to retain % of the Savings. 5. Substantial Completion Date. Notwithstanding any provision in the GMP Supporting Documents to the contrary,the required date for Substantial Completion of the GMP Work is_. 6. Compensation. Section 3, Compensation,is amended by adding the following: A. City will pay Design-Builder for GMP Work according to the schedules and unit prices stated in Exhibit B, plus the Design-Builder's Percentage Fee as set forth in this Amendment and Section 3 of the Agreement. B. City will inspect the Project within 15 days of receipt of written notice from Design- Builder that the Work is ready for final inspection and acceptance.The City will either accept or reject the work in writing. A rejection must state the reasons for the rejection and list the Work that must be done before the Project can be accepted. If a rejection is issued, Design-Builder will complete all Work needed to be done and request another inspection.The process will be continued until the City determines that the Project is complete and accepted. Within 30 days after Final Acceptance by the City and receipt of the Warranty Bond required by Section 7 of this GMP Amendment, all remaining amounts, including the retainage, will be paid to Design-Builder, provided that Design-Builder must submit evidence satisfactory to the City that all payrolls, material bills, and other indebtedness connected with the Work have been paid; except that in case of disputed indebtedness or liens, the Design-Builder may submit in lieu of evidence of payment, a Surety Bond satisfactory to City guaranteeing payment of all such disputed amounts when adjudicated in cases where such payment has not already been guaranteed by Surety Bond. If City fails to pay within 30 days of acceptance and receipt of the Bond, City will pay interest at the rate as specified in ORS 279C.515 on any unpaid amounts. 7. Warranty Bond. Design-Builder must provide a Warranty Bond in the amount of the GMP to cover the warranty period after acceptance. The City's acceptance of the work will not take effect until receipt of the Warranty Bond. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 8. Liquidated Damages. Design-Builder recognizes that the City will incur significant internal and external costs (damages) as a result of any delay by the Design-Builder completing all GMP Work within the specified Agreement Time. However, given the nature of the GMP Work, it is unduly burdensome and difficult to demonstrate the exact dollar value of damages related to delay. The City has made a good faith and reasonable estimate of damages it would suffer from loss of use due to delay in completion. Design- Builder agrees to pay to City, not as a penalty but as liquidated damages for loss of use, $2,000.00 for each calendar day of delay in completion of the Work. The City of Tigard is authorized to deduct the amount of the liquidated damages from any amounts due and the Design-Builder and its surety will be liable for any excess. If the Agreement is terminated according to the General Conditions and if the Work has not been completed by other means on or before the expiration of Contract Time or adjusted Contract Time,liquidated damages will be assessed against the Design-Builder for the duration of time reasonably required to complete the work. The Parties further agree that the liquidated damages required by this Agreement are compensation to the City only for the harm the City sustains from late completion for loss of use. They are not compensation for additional effort required by the City because the Work has been extended over a longer period, or for other harm the City may sustain form the Design-Builder's other breaches of this Agreement.The City may withhold liquidated damages from progress payments or may withhold the full amount of accrued liquidated damages from final payment. Nothing in this Agreement may be interpreted to prevent the City from seeking other damages or recovery in addition to the liquidated damages specified in this section. 9. Other Damages.The City may recover from the Design-Builder,withhold from payments under this Agreement,or both, actual costs incurred by the City due to the extra effort necessitated because the Work is extended over a longer period of time, such as the actual costs of additional engineering and inspections by the City or extended third party services. This right to actual damages applies to both late Substantial Completion and late Final Acceptance. 10. Termination for Convenience. In the event of a termination of this GMP Amendment for convenience,the Design-Builder will not be entitled to overhead or profit on the unperformed Work,and will not be entitled to payments in excess of. (1) the Cost of the Work incurred by the Design-Builder to the date of termination; (2) the prorated portion of the Design-Builder's Percentage Fee based on the ratio of(a) the Cost of the Work incurred by the Design-Builder to the date of termination divided by (b) the Guaranteed Maximum Price less the Design-Builder's Percentage Fee; (3) fair compensation, either by purchase or rental at the election of the City, for any equipment owned by the Design-Builder which the City elects to retain and which is not otherwise included in the Cost of the Work under this Section 10 sub-item (1); and (3) fair compensation for the Design-Builder's demobilization costs and other costs directly incurred relating to the termination which are not otherwise included in the Cost of the Work under this Section 10 (1); provided, however, that the total amount of such payment is subject to the Guaranteed Maximum Price. In all other respects the Agreement remains in full force and effect. [Signature Page to Follow] DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 IN WITNESS WHEREOF, City and Design-Builder have caused this Agreement to be executed by their duly authorized officials. CITY OF TIGARD EMERY& SONS CONSTRUCTION GROUP, LLC By: By: Name: Name: Title: Title: Date: Date: DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 EXHIBIT 3 PRE-CONSTRUCTION DESIGN PHASE SCOPE OF WORK Phase One — Preliminary Analysis and Investigation Task 1.1: Project Management 1.1.1 — Project Coordination and Management The PDB team shall provide project coordination and management for the activities performed by in-house personnel and subconsultants during the Project. This includes management and monitoring of labor utilization, project schedule, and project budget on a regular basis. It shall be the ongoing responsibility of the PDB team to adequately manage and adhere to the task budgets and to submit deliverables to the City on time and in accordance with the contract requirements. Set up the project within an accounting system, prepare subconsultant agreements, and prepare and submit invoices electronically to the City on a monthly basis. A Monthly Progress Report shall be submitted with monthly invoices and provide a summary of work completed to date, budget expended, out of scope items required, and any issues of concern. Project coordination during Phase One work shall include monthly progress meetings with the City's project manager to discuss work progress, schedule, and budget. Monthly progress meetings will be held on Microsoft Teams. Additional regular communication with the City's project manager shall be done to update the City on work performed and coordinate project activities. The frequency of communication will be adjusted throughout the project according to the level of activity. 1.1.2 — Project Execution Plan The PDB team shall prepare a Project Execution Plan summarizing Phase One project goals and objectives; the PDB project approach; project organization requirements defining resources/staffing plan, responsibilities, contacts, and communication plan; the PDB team's QA/QC plan; project budget, schedule and work breakdown structure; financial tracking procedures; and scope change management process. The project delivery schedule shall be in coordination with the City's requirements and milestone dates. Submit for review within seven (7) calendar days following written authorization to proceed. Respond to the City and Owner's Representative comments, revise the draft Project Execution Plan based on the comments received, and submit a final version within seven (7) calendar days after receipt of review comments. 1.1.3 — Communication, Workshops and Status Updates The PDB team will facilitate a Project Kickoff Meeting with the City and Owner's Representative in-person at a mutually agreed upon location to discuss project goals, objectives, and critical success factors; scope and schedule; City preferences for planned improvements; collect DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 missing information; confirm lines of communication; and review the draft Project Execution Plan. The Project Kickoff Meeting shall be conducted with the City and Owner's Representative within fourteen (14) calendar days following written authorization to proceed. Prepare agenda and draft Project Execution Plan and submit to the City no later than seven (7) calendar days before the meeting. Project team meetings will be held weekly with the City and Owner's Representative. Weekly meetings will be held on Microsoft Teams, with one meeting per month held in-person at a mutually agreed upon location A minimum of 5 Workshops will be held in-person at a mutually agreed upon location to review and collaborate on Reservoir 18 site selection and pump station configuration, and to review comments on the Basis of Design Report, 30%, 60%, and GMP deliverables. 1.1.4- Schedule Management The PDB team shall prepare and maintain a 2 Week Look Ahead and Overall Project Schedule according to the following: • All schedules shall be prepared using Microsoft Project. • Schedules shall be submitted as electronic files (*.prj and *.pdf). • The Overall Project Schedule shall be updated monthly to show progress and reflect the information currently available. If an update indicates a previously submitted Schedule will not be met, the PDB team shall provide a corrective recovery plan of action to the City in writing. • Schedules shall be based upon the schedule submitted with the PDB team's proposal, and shall include the following at a minimum: - Start and finish dates for each activity - Activity duration - Major milestones - Meetings and workshops - Submittal dates including draft submissions, City/Owner's Representative review periods, and final submissions - Permit submission dates, approval dates, and agency review periods - Easement schedule, through recommendation for condemnation - Substantial completion - Startup, commissioning, and performance testing - Operator training - Identification of critical path - Float - Final completion DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 • Prepare baseline Overall Project Schedule within fourteen (14) days of the Notice to Proceed for the PDB contract. Schedule includes details for Phase One services and also summarizes Phase Two services, including any agreed upon early work packages. The City and Owner's Representative will provide review comments. The PDB team shall provide a revised baseline schedule based upon agreed-to changes. • Schedules shall show the activities of the City, Owner's Representative, PDB team, and subconsultants necessary to meet the City's completion requirements in accordance with the Contract Documents. • A 2 Week Look Ahead Schedule will be provided for review at each weekly project team meeting. This schedule will include a high-level detail of the activities that are coming ahead in the next two weeks. 1.1.5—Change Management The PDB team shall document scope and schedule changes associated with completion of work by using a Decision Log, which describes the major issues that arise during the Project and provide a status of each item for the City and Owner's Representative review during the weekly project team meetings. 1.1.6— Risk Management The PDB team shall develop and maintain a Risk Register using a mutually agreed upon template. The Risk Register will be actively maintained and submitted as part of monthly progress status reports. 1.1.7 — Public Outreach Public outreach will be led by the City. The PDB team shall provide graphics and content to support public outreach efforts. A 3D rendering of the selected reservoir and pump station alternative will be required to support public outreach efforts. A total of 100 hours of effort by the PDB team is anticipated. 1.1.8 — Health and Safety The PDB team will prepare and implement a Health and Safety Plan (HSP) for Phase One work activities prior to any field investigation work. The Draft HSP shall be submitted within 7 calendar days of NTP. A final version shall be submitted within seven (7) calendar days following receipt of comments. The HSP must also include COVID protocols applicable to scope of services that follow CDC guidelines. 1.1.9 — Quality Assurance and Quality Control The PDB team shall perform in-progress quality management reviews to ensure the project objectives are achieved. At a minimum, the PDB team shall perform the following: DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 • Designate a quality assurance/quality control (QA/QC) officer who is responsible for implementation of the PDB team's QA/QC plan, and documentation of QA/QC activities for design and construction. • Provide checklists and quality management guidance documents for performance of QA/QC. • Require all PDB team personnel to read the approved Project Execution Plan and be familiar with the Project procedures and requirements. • Perform internal review of all calculations and deliverables by designated quality management personnel approved by the City prior to each submittal. • Record and submit all internal review and comment information on forms submitted with draft deliverables, with certification by the Project Manager that submitted information has been reviewed and checked in accordance with the procedures documented. • The PDB team shall identify and utilize individuals on its staff to perform an independent QC check of the reports, BODR, Drawings, and Specifications to assure the PDB Documents are clear and complete and to assure functional coordination of the varied systems and components. This individual shall not have had a role in the development of the PDB Documents to assure an independent review. The QC check shall be comprehensive and shall include, at a minimum, check of dimensions, sizes, detail, section, and elevation references, coordination between the architectural and engineering disciplines' Drawings and Specifications, review designs for compatibility of Materials and Equipment, coordinate references within technical Specifications to other sections and to the Drawings, constructability, and future maintenance access. The PDB team shall submit the comments from the independent QC check to the City. • Owner's Representative will perform a separate peer review on behalf of the City. The PDB team shall supply all necessary calculations, analyses, and other documents needed for Owner's Representative review and cooperate fully with the peer reviewers. Task 1.1 Assumptions • Phase One schedule is assumed to be 9 months. • Meetings and workshops shall be scheduled with the City and Owner's Representative a minimum of two (2) weeks in advance. • PDB team shall provide agenda and materials for meetings to attendees a minimum of 48 hours in advance. • PDB team shall maintain meeting minutes and distributed to the City, Owner's Representative, and other attendees (as applicable) within 48 hours of a meeting. • Draft deliverables of the Project Execution Plan and Health and Safety Plan will be provided for review in a cloud-based electronic (Microsoft Teams *.docx) format. • The City and Owner's Representative will review submittals. The City will provide consolidated review comments to the PDB team. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 • The PDB team shall review submittal comments and record responses and/or actions required to resolve items in the comments within seven (7) calendar days of receiving comments. Task 1.1 Deliverables • Monthly Progress Report and invoice in electronic (*.pdf) format. • Meeting agendas and minutes in cloud-based electronic (Microsoft Teams *.docx) format. • Project Execution Plan in electronic (*.pdf) format. • Health and Safety Plan in electronic (*.pdf) format. • Risk Register will be actively maintained and available in a cloud-based electronic (Microsoft Teams *.xlsx) format. • Decision Log will be actively maintained and available in a cloud-based electronic (Microsoft Teams *.xlsx) format. • The 2 Week Look Ahead and Overall Project Schedules will be actively maintained in a cloud-based electronic (Microsoft Teams *.prj and *.pdf)format. • Graphics and content to support public outreach efforts. • QA/QC documentation in a cloud-based electronic (Microsoft Teams *.xlsx) format. Task 1.2: Preliminary Engineering Design Task 1.2.1 —Alternative Analysis The PDB team will evaluate the Reservoir 18 Site Selection and Bifurcated/Non-Bifurcated Pump Station alternatives using mutually agreed upon selection criteria by the PDB team, City, and Owner's Representative. The City will provide preliminary survey data for the Cach Water Site and Sunrise Park. • Reservoir 18 Site Selection. The PDB team will develop one conceptual site layout to evaluate the potential construction at each reservoir site: Cach Water Site and Sunrise Park. Conceptual level plan drawings and AACE Class 4 construction cost estimates will be prepared to provide the PDB team with a cost for the alternative analysis. • Bifurcated or Non-Bifurcated Pump Station. Conceptual level plan drawings and AACE Class 4 construction cost estimates will be prepared to provide the PDB team with a cost for the alternative analysis. Within 3 weeks of the written authorization to proceed, an Alternative Analysis Workshop will be held at the City's office to rank the selection criteria and choose the site selection and pump station configuration for the project. The analysis for site selection and pump station configuration will be documented in the meeting minutes and included in the Basis of Design Report. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Task 1.2.2— Hydraulic Evaluation The PDB team will evaluate the City's existing water distribution system to identify potential capacity issues and the impact of the additional storage provided by the proposed reservoir. Alternatives to address potential issues will be developed and evaluated for implementation as part of this project. • Data Collection and Review. The PDB team will collect and review documents and information relevant to the preparation of the hydraulic analysis, including, but not limited to, the 2020 Water Master Plan InfoWater hydraulic model. • Level of Service Deficiency Analysis. Proposed projects will be evaluated to determine impact on the water distribution system, including operational modifications and facility recommendations. The PDB team will review proposed solutions and associated level of service improvements with the City and Owner's Representative to determine if the solutions should be considered for further implementation. Within 5 weeks of the written authorization to proceed, submit a draft Hydraulic Evaluation TM documenting the hydraulic evaluation and proposed projects. Task 1.2.3— Condition Assessment The PDB team will perform field evaluations to determine the condition of the existing fill/feed lines between Reservoir 13, Reservoir 18, and Reservoir 8 that the PDB team plans to maintain operational as part of the Project. Within 9 weeks of the written authorization to proceed, submit a draft Condition Assessment TM documenting the findings of the field evaluations and proposed projects. Task 1.2.4— Geotechnical Investigations and Report Conduct field explorations of the selected reservoir and pump station site(s). Within 10 weeks of the written authorization to proceed, submit a draft Geotechnical Engineering Report. The Geotechnical Engineering Report shall include the following, at a minimum: • Regional geology and site seismicity • Geologic hazard area, if present • Subsurface conditions • Slope stability evaluation • Depth to hard rock, if encountered • Seepage and groundwater • Thickness of organic and compressible soils and potential impacts on the proposed construction • Extent of highly expansive soils, if encountered, and recommendations for mitigating the impacts of expansive soils on site foundations if needed. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 • Earthwork recommendations, including compaction specifications and requirements for imported fill material • Anticipated foundation types and soil bearing capacity • Design parameters for below-grade structural walls • Seismic design parameters for use with current building code prescriptive methods Task 1.2.5 - Basis of Design Report (BODR) The PDB team will confirm design criteria that will be used to guide the design of the proposed reservoir. This will include confirming operational capacity, operating levels, overflow evaluation, and floor elevations. Applicable building codes, AWWA standards and guidance documents, OSHA standards, and other codes and standards governing reservoir design will be documented. Review the Project requirements and consult with the City and Owner's Representative as appropriate to further clarify requirements for the Project including the City's budget, review of City's design standards, and available City-provided information. Identify, consult with, and analyze requirements of governmental authorities having jurisdiction to approve the portions of the Project described by the PDB team, including but not limited to Oregon Health Authority (OHA), Clean Water Services (CWS), and Washington County. Evaluate the project reference documents and, after consultation with the City and Owner's Representative, recommend modifications to such documents which that would benefit the Project. Within 10 weeks of the written authorization to proceed, submit a draft BODR: • The BODR shall, as appropriate, contain schematic layouts, sketches and conceptual design criteria, and appropriate exhibits, and indicate the applicable requirements, considerations involved, and recommended alternate solutions. • The BODR shall include descriptions and supporting evidence of any deviations from the City's design standards. • The BODR shall also include the following, at a minimum: Updated topographic survey of the entire Project site, if necessary - Summary of preliminary geotechnical information from data reviews and draft Geotechnical Engineering Report - Evaluations and recommendations of reservoir location, dimensions, and improvements to the site - Hydraulic analysis of Reservoir 18 Resolution of complete mixing in the reservoir to prevent short-circuiting - Sodium hypochlorite boosting at the pump station(s), including evaluation of dosing requirements and on-site generation and/or bulk storage alternatives - Water quality monitoring plan for Reservoir 18 - Security plan DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 - Stormwater management plan Reservoir overflow and drainage plan Cost estimate submittal for the Basis of Design Updated Overall Project Schedule Task 1.2 Assumptions • The updated hydraulic model with modifications by the PDB team will be available for review by the City and Owner's Representative. • Draft deliverables of the Hydraulic Evaluation TM, Condition Assessment TM, Alternative Analysis TM, Geotechnical Engineering Report, and BODR will be provided for review in a cloud-based electronic (Microsoft Teams *.docx) format. • The PDB team shall schedule and facilitate a meeting with the City and Owner's Representative to present deliverables. • Upon review of deliverables, the City and Owner's Representative will provide consolidated review comments to the PDB team. • The PDB team shall review submittal comments and record responses and/or actions required to resolve items in the comments within seven (7) calendar days of receiving comments. • The PDB team shall schedule and facilitate a review meeting with the City and Owner's Representative to discuss comments and responses. Task 1.2 Deliverables • Hydraulic Evaluation TM in cloud-based electronic (Microsoft Teams *.doc and *.pdf) format. • Condition Assessment TM in cloud-based electronic (Microsoft Teams *.doc and *.pdf) format. • Alternative Analysis TM in cloud-based electronic (Microsoft Teams *.doc and *.pdf) format. • Geotechnical Data Report in cloud-based electronic (Microsoft Teams *.doc and *.pdf) format. • BODR in cloud-based electronic (Microsoft Teams *.doc and *.pdf) format. Task 1.3: Engineering Design After acceptance by the City of the BODR and upon written authorization from the City, the PDB team shall proceed with further development of design for the Project, including development and submittal of intermediate design review packages (30% and 60%). DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 The design shall be consistent with the BODR. The PDB team shall provide in writing to the City descriptions of any deviations in the design from the BODR. Task 1.3.1 — Survey The PDB team will provide surveying services to research County records related to existing property corners of the affected parcel(s), conducting field boundary, topographic, and planimetric survey of the project site(s) and prepare a survey base map for the project. The survey will cover the proposed Reservoir 18, pump station(s), and transmission main improvements. The survey will consist of the following elements: locations of existing structures; exposed piping; underground and above ground utilities; topographic features including 1-foot contours, major surface features, edge of roadways, and changes in elevation; and location and diameter of trees 6 inches in diameter or greater. Easements and other encumbrances identified in the Preliminary Title Report will be indicated on the survey base map. Horizontal and vertical control datums used will be as directed by the City. Task 1.3.2 — 30% Design The 30% design shall, as appropriate, contain supplemental site survey and geotechnical investigations, determination of the number and sequencing of construction packages; project layout and features; preliminary design of project features and facilities; design calculations; preparation of documents to support permitting; preparation of preliminary plans and specifications; cost estimate; and quality management reviews. The 30% Design shall be submitted within 8 weeks of the BODR QA/QC comments being received. The 30% drawings shall be developed to the following approximate levels of completion at a minimum: 30% Drawings Percent Complete Cover Sheets 90% General Drawings • Index of Drawings 60% • General Legends and Notes 60% • Suggested Construction Sequences 60% • Numbering and Tagging Conventions, Symbols, and Abbreviations 60% Civil Drawings • Civil Notes 60% • Topographic Survey 100% • Site Plan 60% • Yard Piping, Paving, Grading, and Stormwater 30% • Civil Details 30% • Pipe Schedule 30% • Valve Schedule 30% Architectural Drawings • Code Summary and Schedules 60% • Plans, Sections, and Details 30% DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 30% Drawings Percent Complete Structural Drawings • Plans, Sections, and Details 30% Mechanical Drawings • Pipe Schedule 60% • Plans, Sections, and Details 30% Electrical Drawings • Electrical Notes, Symbols, and Abbreviations 60% • Load Schedules 30% • Single Line Diagrams 30% • Electrical Distribution Site Plan 30% • Project Facility Electrical Plans 30% • Lighting and Receptacle Plans 30% • Conduit Plans 30% • Grounding Plans 30% Instrumentation • Legends and Symbols 60% • Control System Block Diagrams/Network Architecture 60% • Process and Instrumentation Diagrams P&IDs 60% The 30% specifications shall be developed to the following approximate levels of completion at a minimum: • Complete list of specifications • Identification of standard specifications intended for use • Major concrete, mechanical, and electrical equipment specifications The 30% cost estimate will be an AACE Class 3 estimate of the probable construction cost for the proposed reservoir and associated site improvements. Task 1.3.3— 60% Design The 60% design shall, as appropriate, contain supplemental site survey and geotechnical investigations, determination of the number and sequencing of construction packages; project layout and features; preliminary design of project features and facilities; design calculations; preparation of documents to support permitting; preparation of preliminary plans and specifications; cost estimate; and quality management reviews. Prior to the 60% design submittal, the City and Owner's Representative will document the City's general requirements, such as support facilities, performance testing, quality control, etc. The 60% Design shall be submitted within 8 weeks of the 30% Design QA/QC comments being received. The 60% drawings shall be developed to the following approximate levels of completion at a minimum: DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 60% Drawings Percent Complete Cover Sheets 90% General Drawings • Index of Drawings 90% • General Legends and Notes 90% • Suggested Construction Sequences 90% • Numbering and Tagging Conventions, Symbols, and Abbreviations 90% Civil Drawings • Civil Notes 90% • Topographic Survey 100% • Site Plan 90% • Yard Piping, Paving, Grading, and Stormwater 60% • Civil Details 60% • Pipe Schedule 90% • Valve Schedule 90% Architectural Drawings • Code Summary and Schedules 90% • Plans, Sections, and Details 60% Structural Drawings • Plans, Sections, and Details 60% Mechanical Drawings • Pipe Schedule 90% • Plans, Sections, and Details 60% Electrical Drawings • Electrical Notes, Symbols, and Abbreviations 90% • Load Schedules 60% • Single Line Diagrams 60% • Electrical Distribution Site Plan 60% • Project Facility Electrical Plans 60% • Lighting and Receptacle Plans 60% • Conduit Plans 60% • Grounding Plans 60% Instrumentation • Legends and Symbols 90% • Control System Block Diagrams/Network Architecture 90% • Process and Instrumentation Diagrams P&IDs 90% The 60% specifications shall be developed to the following approximate levels of completion at a minimum: • Table of contents (100% complete) • PDB standard specifications for procurement (100% complete) • Concrete specifications (100% complete) • Major mechanical and electrical equipment specifications (90% complete) DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 • Piping and valve specifications (90% complete) • Control narratives (90% complete) • Balance of specifications (60% complete) The 60% cost estimate will be an AACE Class 2 estimate of the probable construction cost for the proposed reservoir and associated site improvements. Task 1.3 Assumptions • The City will coordinate the process for terminating the lease for the resident at the Cach Water Site, as necessary. • The design will be in accordance with the adopted International Building Code and Oregon Structural Specialty Code. • The design will accommodate hydromodification risk through design of a stormwater detention pond and overflow dispersion routed to Cach Creek or the Reservoir 13 storm sewer (pending site selection results). • The design will incorporate roadway improvements necessary for construction access and bringing necessary utilities to the site(s), including but not limited to electrical. • The design will incorporate frontage and stormwater improvements at the project site(s). • The design will incorporate feedback from public outreach efforts and Parks & Rec to incorporate park amenities and trail interconnectivity into the site improvements. • The design will incorporate planning for future ASR facilities at pump station site(s). • The design will incorporate hypochlorite boosting at the pump station(s). • The pump station(s) will have a permanent onsite generator with sound attenuation. • The City and Owner's Representative will review submittals. The City will provide consolidated review comments to the PDB team. • The PDB team shall review submittal comments and record responses and/or actions required to resolve items in the comments within seven (7) calendar days of receiving comments. Comments requiring further discussion or work to resolve shall be brought to the attention of the City and Owner's Representative. • A design review workshop will be held at the City's offices to discuss review comments. • The PDB team shall use the City of Tigard's Public Improvement Design Standards and the Oregon Standard Specifications for Construction, where applicable. Where these standard specifications are not applicable, the PDB team shall develop specifications adhering to building codes and national standards — including, but not limited to: IBC, OSSC, ASCE 7, ACI, AWWA, OSHA, and NSF. • The specifications shall not make any generalized blanket references to the City of Tigard's Public Improvement Design Standards, or any other standards or specifications. If any sections of these Standards and Specifications are to be included by reference, the specifications shall cite specific chapters and/or paragraphs of the reference standards. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Task 1.3 Deliverables • 30% drawings in a cloud-based electronic (*.pdf) format and AutoCAD *dwg. • 30% specifications in a cloud-based electronic (Microsoft Teams *.docx) format. • 60% drawings in a cloud-based electronic (*.pdf) format and AutoCAD *dwg. • 60% specifications in a cloud-based electronic (Microsoft Teams *.docx)format. • 60% cost estimate in a cloud-based electronic (Microsoft Teams *.xlsx) format. Task IIA: Permitting The PDB team shall coordinate with the City and Owner's Representative relative to applicable project permits. • Permitting Plan. The PDB team shall develop a Permitting Plan to provide a list of all necessary permits for the Project; a schedule for permit development, submittal, and anticipated approval; identify permits or permitting activities that will require coordination with the City; and identify permits that are critical path for the delivery of the project. • Permitting Submittals: Prepare permitting submittals for Oregon Health Authority (OHA), Clean Water Services (CWS), Washington County, City of Tigard, Oregon Department of Environmental Quality (DEQ), Oregon Department of State Lands (DSL), U.S. Army Corps of Engineers, and any other agencies as required for reviews and permit applications. • Land Use Application: Prepare land use application and supporting documentation. Task 1.4 Assumptions • The City has completed a wetland delineation for the Cach Water Site and Sunrise Park, provided in Attachment I. • The PDB team shall prepare all permit and land use applications and develop supporting documentation in accordance with the applicable regulations. • The PDB team is responsible for obtaining all required permits, land use application, and governmental approvals for construction of the Project. • The City will pay the permit and land use application fees directly to governmental agencies. Task 1.4 Deliverables • Permitting Plan in a cloud-based electronic (Microsoft Teams *.docx) format. • Copies of draft and final permit and land use application submittals in cloud-based electronic (Microsoft Teams *.pdf) format. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Task 1.5: Easements The PDB team will provide easement acquisition support consisting of the following tasks: • Easement Documentation: Prepare easement documentation exhibits and legal descriptions. • Title Reports: The PDB team will be responsible for ordering and payment of title reports. The PDB team will present title reports for City review upon ROW Agent recommendation. • Appraisals/Appraisal Review: The PDB team will use Oregon state-certified appraisers. The PDB team will provide one real estate appraisal for each ownership from which a property interest is to be acquired. Real estate appraisals will conform to the standards contained in the Uniform Standards of Professional Appraisal Practice (USPAP) and Oregon State Laws. The City and Owner's Representative will review and provide comments on the Appraisals. The PDB team will review and incorporate these comments into the final Appraisal documents, as necessary. • Acquisition and Negotiations: The PDB team will coordinate negotiations with the City for right-of-way (ROW) acquisition in accordance with the applicable State and Federal law, and the City's policies and procedures. The PDB team will compile and/or prepare all essential documents to be submitted to owners and tenants as required. These include, but are not limited to project information letters, acquisition and relocation brochures, offer-benefit letters, acquisition summary statements, copy of appraisal, map of acquisition (if not included in appraisal), and instruments of conveyance. The PDB team will make all offers in person or by certified mail. The PDB team will provide all property owners with: - A complete copy of the appraisal that just compensation is based upon at the initiation of negotiations. - A written notice as part of the offer that they have a minimum of 40 days to accept or reject the offer, as per state law. Property owners who are considering a donation must be informed in writing of their right to just compensation. The owner will sign the donation form indicating their waiver of their rights, if they elect to donate. The PDB team will prepare and maintain written diaries of negotiator contacts with property owners and tenants to document: - efforts to achieve amicable settlements, - owners' suggestions for changes in plans, - responses to owners' counterproposals. • The PDB team will lead communication efforts with property owners during the 40-day minimum offer period of acceptance or rejection. These negotiation efforts will result in presenting any counter offers and/or obligations of construction from individual property owners to the City for approval. All negotiations for acquisition of property will be made by a ROW Agent licensed in the state of Oregon and in accordance with applicable State DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 and Federal law. If an impasse in negotiations is reached within the 40-day offer period, the City will be consulted regarding next steps or possible recommendation for condemnation. The PDB team will assist in clearing interests from title that are deemed necessary by the City. Task 1.5 Assumptions • No relocation activity is anticipated. • No negotiations will take place until a Resolution of Need is obtained from City Council. • No acquisition activities will take place prior to receiving Legal Drawings and Descriptions and obtaining Resolution of Need. • Any design changes after NTP is given to appraiser will result in risk to schedule and delay in acquisition process of up to 3 months. • City will coordinate all closings with title company and pay closing costs. • City will engage and pay for attorneys, if required. • The PDB team/ROW Agent to coordinate ROE's, or similar, to perform surveys needed for preparation of Legal Descriptions, route feasibility studies, appraisals, or any access to private property needed as part of the design effort. • The ROW acquisition will be required for up to ten (10) properties which may be impacted by the Project. Task 1.5 Deliverables • Resolution of Need • Preliminary Title Reports • Drawings and property descriptions • General Information Notices • Real estate appraisals, including Written Landowner Notification of Appraisal Inspection • Real estate appraisals review • Preparation of Offer Benefit Package • Signed conveyance documents and final report packet for closing and recording of easements with Title Company • Construction Obligations (if necessary) • ROW Certification • Recommendation for Condemnation (if necessary) DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Task 1.6: GMP Preparation Upon acceptance by the City of the cost estimate provided at the 60% design milestone, the PDB team will prepare a GMP proposal based on the 60% cost estimate. The GMP Cost Estimate shall include direct costs, indirect costs, PDB fee, PDB project contingency, and professional services. Included with the GMP shall be a written statement of its basis, which shall include, as applicable: • A complete list of the design documents, including drawings and specifications, which were used in the preparation of the GMP and are the baseline for the final design to be performed under the PDB contract. • A list of assumptions and clarifications made by the PDB team in the preparation of the GMP, which is intended to supplement the information contained in the drawings and specifications. • Project Schedule with the Scheduled Substantial Completion Date upon which the proposed GMP is based. • A list of Allowance Items, Allowance Values, and a statement of their basis. • A schedule of alternate prices. • A schedule of unit prices. • A statement of Additional Services which, if performed, shall be the basis for an increase in the GMP and/or Contract Time(s). • The amount of contingency included in the GMP. • Any proposed modifications to the current draft of the PDB contract, scope for Phase Two and updates to the GMP Agreement. • A list of subcontractors and suppliers whose proposals have been accepted. • An updated letter from its surety verifying that PDB has bonding capacity in the amount of the GMP. • The time limit for acceptance of the Proposal(s), which shall be no less than 60 calendar days. Task 1.6 Assumptions • The PDB team shall submit the GMP to the City within 2 weeks following the City's approval of the 60% cost estimate. After submission of a GMP, the PDB team and the City shall meet to discuss and review the GMP, negotiate in good faith, and attempt to reach an agreement on the terms of the GMP. The PDB team shall provide such information as the City may reasonably request relative to the GMP, with the understanding that all information that formed the basis for the GMP shall be available to the City on an "open book" basis. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 • During GMP development, the PDB team may procure subcontractors and suppliers for those categories agreed upon by the City. Task 1.6 Deliverables • Draft GMP in a cloud-based electronic (Microsoft Word *.docx and Excel *.xlsx) format. • Final GMP in an electronic (*.pdf) format. DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 EXHIBIT 4 RESERVOIR 18 AND PUMP STATION FEE AND RATE PROPOSAL SUMMARY PHASE 1 SERVICES FEE SUMMARY Total Hours Phase 1 Services (including Direct Expenses Total Costs subconsultants) 1.1 Project Management 1801 $4,052.00 $296,449.00 1.2 Preliminary Engineering Design 2308 $58,053.00 $456,390.00 1.3 Engineering Design 5705 $38,434.00 $1,011,762.00 1.4 Permitting 981 $543.00 $156,933.00 1.5 Easements 961 $49,796.00 $195,905.00 1.6 GMP Preparation 229 $253.00 $36,239.00 Total Phase 1 Services(') 11985 $151,131.00 $2,153,678.00 Additional Tasks Recommended for Phase 1 Services Total Phase 1 Optional Tasks(z) I NA I NA NA GENERAL CONDITIONS PERCENTAGE SUMMARY Estimated Percentage of Direct Costs Design-Builder General Conditions Percentage (3) GC Fee = 4.4%; Bonds/Insurance = 2.85% DESIGN-BUILDER'S FEE PERCENTAGE SUMMARY Estimated Percentage Design-Builder Fee Percentage (3) 5% (1) Proposer shall provide supporting information to include a fee spread sheet with job classifications,hourly rates, and hours for each task identified in the Scope of work. (2) Any optional tasks recommended by proposer must include task description and associated benefits. A separate fee spread sheet with job classifications,hourly rates, and hours for each task to be provided. (3) General Conditions Fee shall be determined based on the General Conditions Fee Percentage multiplied by the actual cost of constructing the improvements specified within the RFP for Phase 2.The actual cost of construction shall consider all documentable direct construction costs without any markups applied only. Proposer shall provide supporting rationale for its proposed General Conditions Fee Percentage information,which includes an organizational chart of its Construction staff and a position-hour estimate including billing rates of Key personnel who provides construction services in Phase 2. Key personnel may include,but are not limited to, the Construction Manager, Construction Superintendent,Safety Manger, and Scheduler. (4) The Design-Builder Fee percentage should be inclusive of corporate overhead and profit for Phase 2. The Design-Builder Fee percentage is not intended to cover Design-Builder Project Contingency or Indirect Costs. This fee shall be applied to the Cost of Work,and shall also provide proposer with full compensation for all indirect operating costs,burdens, encumbrances,profit, turnover,mark-ups, fees, charges,levies, incentives, and any other relevant items. By signature hereon,the Proposer's authorized agent("Agent") certifies that all necessary corporate acts have been taken to authorize the Agent to sign this document and that all information provided in the Fee and Rate Proposal Sum�mary Form are an accurate representation of the information the Proposer is providing. yye, cc AlPrincipal October 12, 2021 Signature (Vince Makinson) Title Date Proposal I Reservoir 18&Pump Station I October 2021 Required Forms I xiii m 2 -------- ----------- ------- — --- - --- --— —-—-— —22- 1 In 12 lfl 17 ---- ---- I T ------ --- --- -————-----— ...... ... 1w F LL C9 0 L MEN- MM99 --- -------- - DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Phase 1 Services - Subconsultant Details PSE (Structural Engineers) Task No. Description Total Hours Labor Costs Direct Expenses Total Costs 1.1 Project Management 0 $0 $0 $0 1.2 Preliminary Engineering Design 0 $0 $0 $0 1.3 Engineering Design 393 $80,490 $300 $80,790 1.4 Permitting 0 $0 $0 $0 1.5 Easements 0 $0 $0 $0 1.6 GMP Preparation 0 $0 $0 $0 Total 393 $80,490 $300 $80,790 AKS(Surveying) Task No. Description Total Hours Labor Costs Direct Expenses Total Costs 1.1 Project Management 0 $0 $0 $0 1.2 Preliminary Engineering Design 0 $0 $0 $0 1.3 Engineering Design 533 $87,030 $10,500 $97,530 1.4 Permitting 0 $0 $0 $0 1.5 Easements 417 $69,615 $2,000 $71,615 1.6 GMP Preparation 0 $0 $0 $0 Total 950 $156,645 $12,500 $169,145 AKS(Land Use Assistance) Task No. Description Total Hours Labor Costs Direct Expenses Total Costs 1.1 Project Management 0 $0 $0 $0 1.2 Preliminary Engineering Design 0 $0 $0 $0 1.3 Engineering Design 0 $0 $0 $0 1.4 Permitting 470 $70,000 $0 $70,000 1.5 Easements 0 $0 $0 $0 1.6 GMP Preparation 0 $0 $0 $0 Total 470 $70,000 $0 $70,000 AKS(Permitting) Task No. Description Total Hours Labor Costs Direct Expenses Total Costs 1.1 Project Management 0 $0 $0 $0 1.2 Preliminary Engineering Design 0 $0 $0 $0 1.3 Engineering Design 0 $0 $0 $0 1.4 Permitting 267 $36,000 $0 $36,000 1.5 Easements 0 $0 $0 $0 1.6 GMP Preparation 0 $0 $0 $0 Total 267 $36,000 $0 $36,000 Morgan Holen &Associates, LLC(Arborist) Task No. Description Total Hours Labor Costs Direct Expenses Total Costs 1.1 Project Management 0 $0 $0 $0 1.2 Preliminary Engineering Design 201 $33,165 $141 $33,306 1.3 Engineering Design 0 $0 $0 $0 1.4 Permitting 0 $0 $0 $0 1.5 Easements 0 $0 $0 $0 1.6 GMP Preparation 0 $0 $0 $0 Total 201 $33,165 $141 $33,306 Proposal I Reservoir 18&Pump Station I October 2021 Required Forms I xv DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Universal Field Services(ROW Agent) Task No. Description Total Hours Labor Costs Direct Expenses Total Costs 1.1 Project Management 0 $0 $0 $0 1.2 Preliminary Engineering Design 0 $0 $0 $0 1.3 Engineering Design 0 $0 $0 $0 1.4 Permitting 0 $0 $0 $0 1.5 Easements 450 $47,429 $43,269 $90,698 1.6 GMP Preparation 0 $0 $0 $0 Total 450 $47,429 $43,269 $90,698 R&W(Electrical Engineering) Task No. Description Total Hours Labor Costs Direct Expenses Total Costs 1.1 Project Management 0 $0 $0 $0 1.2 Preliminary Engineering Design 110 $17,390 $1,100 $18,490 1.3 Engineering Design 533 $74,890 $3,000 $77,890 1.4 Permitting 56 $7,320 $330 $7,650 1.5 Easements 0 $0 $0 $0 1.6 GMP Preparation 36 $5,340 $230 $5,570 Total 735 $104,940 $4,660 $109,600 PEI (System Integration) Task No. Description Total Hours Labor Costs Direct Expenses Total Costs 1.1 Project Management 0 $0 $0 $0 1.2 Preliminary Engineering Design 32 $4,480 $0 $4,480 1.3 Engineering Design 390 $56,000 $0 $56,000 1.4 Permitting 0 $0 $0 $0 1.5 Easements 1 0 $0 $0 $0 1.6 JGIVIP Preparation 1 16 $2,240 $0 $2,240 Total 438 1 $62,720 $0 $62,720 CCCS(Corrusion Consultant) Task No. Description Total Hours Labor Costs Direct Expenses Total Costs 1.1 Project Management 0 $0 $0 $0 1.2 Preliminary Engineering Design 19 $3,040 $310 $3,350 1.3 Engineering Design 0 $0 $0 $0 1.4 Permitting 0 $0 $0 $0 1.5 Easements 0 $0 $0 $0 1.6 GMP Preparation 0 1 $0 $0 $0 Total 19 $3,040 $310 $3,350 Greenworks(Landscape Architect) Task No. Description Total Hours Labor Costs Direct Expenses Total Costs 1.1 Project Management 0 $0 $0 $0 1.2 Preliminary Engineering Design 66 $7,990 $160 $8,150 1.3 Engineering Design 434 $46,400 $928 $47,328 1.4 Permitting 4 $428 $0 $428 1.5 Easements 0 $0 $0 $0 1.6 JGMP Preparation 0 1 $0 $0 $0 Total 504 1 $54,818 $1,088 $55,906 Proposal I Reservoir 18&Pump Station I October 2021 Required Forms I xvi DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 MWA(Architect) Task No. Description Total Hours Labor Costs Direct Expenses Total Costs 1.1 Project Management 0 $0 $0 $0 1.2 Preliminary Engineering Design 166 $22,195 $0 $22,195 1.3 Engineering Design 219 $40,985 $250 $41,235 1.4 Permitting 0 $0 $0 $0 1.5 Easements 0 $0 $0 $0 1.6 GMP Preparation 0 $0 $0 $0 Total 385 $63,180 $250 $63,430 GSI (Hydrogeologist) Task No. Description Total Hours Labor Costs Direct Expenses Total Costs 1.1 Project Management 0 $0 $0 $0 1.2 Preliminary Engineering Design 0 $0 $0 $0 1.3 Engineering Design 15 $2,355 $0 $2,355 1.4 Permitting 0 $0 $0 $0 1.5 Easements 0 $0 1 $0 $0 1.6 GMP Preparation 0 $0 $0 $0 Total 15 $2,3551 $0 $2,355 GRI (Geotechnical Engineering) Task No. Description Total Hours Labor Costs Direct Expenses Total Costs 1.1 Project Management 0 $0 $0 $0 1.2 Preliminary Engineering Design 471 $81,755 $45,450 $127,205 1.3 Engineering Design 20 $3,900 $0 $3,900 1.4 Permitting 0 $0 $0 $0 1.5 Easements 1 0 1 $0 $0 $0 1.6 JGMP Preparation 1 0 1 $0 $0 $0 Total 491 $85,655 $45,450 $131,105 Proposal I Reservoir 18&Pump Station I October 2021 Required Forms I xvii DocuSign Envelope ID:65BBFC4B-2869-40AA-B2D8-378F466FBCD8 Design-Builder Rationale for General Conditions Fee Percentage The Design-Builder General Conditions Fee Percentage has been established based on the Design-Buil der Agreement Section 4—Cost of the Work items as follows: • DB Project Manager 9 DB Project Engineer • DB Superintendent DB Safety Manager Item 4.A.2:Salaries and benefits for the following key field staff are included DB General Conditions Breakdown (Based on$18-million Cost of Work) ConditionsPhase 2 General Description Site Superintendent $360,000.00 2.0% $21,176/mo based on 17 Mos. — 2292 hrs. CM/Field Engineer/QC $306,000.00 1.70% $18,000/mo based on 17 Mos. — 2543 hrs. Field Office &Supplies $52,200.00 0.29% $3,070/mo based on 17 Mos. Temp. Facilities $48,600.00 0.27% $2,850/mo based on 17 Mos. Temp Fence $5,400.00 0.03% $317/mo based on 17 Mos. Portable Toilets $5,400.00 0.03% $317/mo based on 17 Mos. Safety $14,400.00 0.08% $847/mo based on 17 Mos. Total Phase 2 GC's $792,000.00 4.40% Based on $18-million Bonds/Insurances Pollution Liability $10,800.00 0.06% Additional coverage GL Insurance $243,000.00 1.35% Base coverage Builders Risk $50,400.00 0.28% Added coverage Perf/Payment Bond $208,800.00 1.16% Project specific Total Insurance/Bonds $513,000.00 2.85% Based on $18-million Total Design Builder GC's $1,305,000.00 7.25% Item 4.A.3: Casual overtime for the DB Field staff will not be included in our General Conditions fee, however payment for overtime may be considered by the Owner if applicable. Item 4.A.4: At this time it is not clear if the City would like the bond and insurance costs to be part of the stated General Conditions Fee Percentage.Therefore,we have broken out the costs for bonds and insurances as shown above in the Design Builder's Fee Summary. Bonds and insurances include the following: • P&P Bonds • Commercial General Liability Insurance • Workers' Compensation • Automobile Liability Insurance • Pollution Liability Insurance • Commercial Umbrella/Excess Coverage • Professional Liability Insurance • Builders Risk Insurance Item 4.A.5: While have not included subsistence in our stated General Conditions Fee Percentage, as we do not anticipate subsistence will be needed. However, vehicle usage and mileage is part of our GC's. Items 4.A.6-8: Items in this section are included in our GC's. Items 4.A10-11: Items in this section are included in our GC's. Item 4.A13: Items in this section will not be part of our GC's, however we are listing this item to highlight that the Oregon CAT tax(0.45%) and Tri-County tax(1.0%)will be considered a Cost of Work as described in the General Conditions. Item 4.A19: Items in this section are included in our GC's. All other items of the Design-Builder Agreement Section 4—Cost of Work not indicated above will be part of our costs for actual field construction. Proposal I Reservoir 18&Pump Station I October 2021 Required Forms I xviii