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Standard Form of

General Conditions of

Contract Between Owner

and Design-Builder

Document No. 535

Third Edition, 2022

Washington, D.C.

#535

Design-Build Institute of America - Contract Documents

LICENSE AGREEMENT

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1. License. The Design-Build Institute of America (“DBIA”) provides DBIA Contract Documents and licenses their use

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owned, leased or rented by your company or organization; (b) Use DBIA Contract Documents in printed form for

bona fide contract purposes; and (c) Copy DBIA Contract Documents into any machine-readable or printed form for

backup or modification purposes in support of your permitted use.

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You acknowledge that you understand that the text of the DBIA Contract Documents has important legal

consequences and that consultation with an attorney is recommended with respect to use or modification of the

text. You will not represent that any of the contract documents you generate from DBIA Contract Documents are

DBIA documents unless (a) the document text is used without alteration or (b) all additions and changes to, and

deletions from, the text are clearly shown.

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license except as expressly provided in this Agreement, and any attempt to do so is void.

5. Term. The license is effective for one year from the date of purchase. DBIA may elect to terminate it earlier, by

written notice to you, if you fail to comply with any term or condition of this Agreement.

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so the above limitation or exclusion may not apply to you.

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its terms and conditions and that it will be governed by the laws of the District of Columbia. You further agree that

it is the complete and exclusive statement of your agreement with DBIA which supersedes any proposal or prior

agreement, oral or written, and any other communications between the parties relating to the subject matter of this

agreement.

INSTRUCTIONS

For DBIA Document No. 535 Standard Form of General Conditions of Contract Between Owner and Design-Builder

(2022 Edition)

General Instructions

No.

Subject

Instruction

Standard

Forms

Standard form contracts have long served an important function in the United States and

international construction markets. The common purpose of these forms is to provide an

economical and convenient way for parties to contract for design and construction services.

As standard forms gain acceptance and are used with increased frequency, parties are able

to enter into contracts with greater certainty as to their rights and responsibilities.

DBIA Standard

Form Contract

Documents

Since its formation in 1993, the Design-Build Institute of America (DBIA) has regularly

evaluated the needs of Owners, Design-Builders, and other parties to the design-build

process in preparation for developing its own contract forms. Consistent with DBIA’s mission

of promulgating best design-build practices, DBIA believes that the design-build contract

should reflect a balanced approach to risk that considers the legitimate interests of all parties

to the design-build process. DBIA’s Standard Form Contract Documents reflect a modern risk

allocation approach, allocating each risk to the party best equipped to manage and minimize

that risk, with the goal of promoting best design-build practices.

Use of NonDBIA

Documents

To avoid inconsistencies among documents used for the same project, DBIA’s Standard Form

Contract Documents should not be used in conjunction with non-DBIA documents unless the

non-DBIA documents are appropriately modified on the advice of legal counsel. Moreover,

care should also be taken when using different editions of the DBIA Standard Form Document

on the same project to ensure consistency.

Legal

Consequences

DBIA Standard Form Contract Documents are legally binding contracts with important legal

consequences. Contracting parties are advised and encouraged to seek legal counsel in

completing or modifying these Documents.

Reproduction

DBIA hereby grants to purchasers a limited license to reproduce its Documents consistent

with the License Agreement accompanying these Documents. At least two original versions

of the Agreement should be signed by the parties. Any other reproduction of DBIA Documents

is strictly prohibited.

Modifications

Effective contracting is accomplished when the parties give specific thought to their

contracting goals and then tailor the contract to meet the unique needs of the project and the

design-build team. For that reason, these Documents may require modification for various

purposes including, for example, to comply with local codes and laws, or to add special terms.

DBIA’s latest revisions to its Documents provide the parties an opportunity to customize their

contractual relationship by selecting various optional contract clauses that may better reflect

the unique needs and risks associated with the project.

Any modifications to these Documents should be initialed by the parties. At no time should a

document be re-typed in its entirety. Re-creating the document violates copyright laws and

destroys one of the advantages of standard forms – familiarity with the terms.

Execution

It is good practice to execute two original copies of the Agreement. Only persons authorized

to sign for the contracting parties may execute the Agreement.

Instruction Sheet for DBIA Document No. 535

Page 1

Specific Instructions

Section

Title

Instruction

The General Conditions of Contract provide the terms and conditions under which the Work

of the Project will be performed.

General

Purpose of This

Document

This document accompanies DBIA Document No. 525 and DBIA Document No. 530 (each

referred to herein generally as “Agreement”). It may also be incorporated by reference into

other related agreements, as between Design-Builder and Design Consultant, and DesignBuilder and Subcontractor.

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

•

Section 3.5.1 – Owner’s Permit List

Article 5 – Insurance and Bonds

General

Checklist

2.1.3

Schedule

The parties are encouraged, if possible, to agree to a schedule for the execution of the

Work upon execution of the Agreement or upon establishing the GMP.

2.2.1

Design

Professional

Services

The parties should be aware that in addition to requiring compliance with state licensing

laws for design professionals, some states also require that the design professional have

a corporate professional license.

2.3.1

Standard of Care

for Design

Professional’s

Services

Design-Builder’s obligation is to deliver a design that meets prevailing industry standards.

However, DBIA has provided the parties at Article 11 of the Agreement an optional

provision whereby if Owner can identify specific performance standards that can be

objectively measured, Design-Builder is obligated to design the Project to satisfy these

standards if this optional provision is selected. To avoid any confusion and to ensure that

the parties fully understand what their obligations are, the specific performance standards

should be clearly identified and should be able to be objectively measured. Design-Builder

should recognize that this is a heightened standard of care that has insurance ramifications

that should be discussed with Design-Builder’s insurance advisor.

3.5

Government

Approvals and

Permits

Design-Builder is responsible for obtaining all necessary permits, approvals, and licenses,

except to the extent specific permits, approvals, and licenses are set forth in an Owner’s

Permit List, which must be attached as an exhibit to the Agreement. The parties, prior to

execution of the Agreement, should discuss which permits, approvals and licenses need

to be obtained for the Project and which party is in the best position to do so.

5.1.1

Design-Builder’s

Insurance

Requirements

Design-Builder is obligated to provide insurance coverage from insurance carriers that

meet the criteria set forth in the Insurance Exhibit attached to Section 10.1 of the

Agreement.

5.1.2

Exclusions to

Design-Build

Parties are advised that their standard insurance policies may contain exclusions for the

design-build delivery method. This Section 5.1.2 requires that any such exclusions be

deleted from the policy.

5.2

Owner’s

Insurance

Requirements

Owner, in addition to providing the insurance set forth in this Section and Section 5.3, is

also obligated to procure the insurance coverages for the amounts and consistent with the

terms set forth in the Insurance Exhibit made part of the Agreement.

5.4

Bonds and Other

Performance

Security

Design-Builder is only obligated to provide bonds or other forms of performance security

to the extent called for in Section 10.2 of the Agreement.

Instruction Sheet for DBIA Document No. 535

Page 2

Section

Title

Instruction

8.2.2

Compensability

for Force Majeure

Events

The parties are provided the option in the Agreement of negotiating whether Design-Builder

is entitled to compensation for Force Majeure Events.

Payment/

Performance of

Disputed

Services

When Owner disputes Design-Builder’s entitlement to a change order or disagrees with

Design-Builder regarding the scope of Work, and nevertheless expects Design-Builder to

perform the services, Design-Builder’s cash flow and ability to complete the Work will be

hampered if Owner fails to pay Design-Builder for the disputed services. This Section

provides a balanced approach whereby Design-Builder is required to perform the services,

but Owner is required to pay fifty percent (50%) of Design-Builder’s reasonable estimated

direct costs of performing such services until the dispute is settled. By so doing, Owner

does not forfeit its right to deny total responsibility for payment, and Design-Builder does

not give up its right to demand full payment. The dispute shall be resolved according to

Article 10.

Article

Contract

Adjustments and

Disputes

DBIA endorses the use of partnering, negotiation, mediation and arbitration for the

prevention and resolution of disputes. The General Conditions of Contract provides for the

parties’ Representatives and Senior Representatives to attempt to negotiate the dispute or

disagreement. If this attempt fails, the dispute shall be submitted to mandatory, non-binding

mediation. Any dispute that cannot be resolved by mediation shall then be submitted to

binding arbitration, unless the parties elect in the Agreement to submit their dispute to a

court of competent jurisdiction.

10.3.4

Prevailing Party

Fees

The prevailing party in any arbitration, or any other final, binding dispute proceeding upon

which the parties may agree, shall receive reasonable attorneys’ fees from the other party.

DBIA supports this “loser pays” provision to encourage parties to negotiate or mediate their

differences and to minimize the number of frivolous disputes.

10.4

Duty to Continue

Performance

Pending the resolution of any dispute or disagreement, both Owner and Design-Builder

shall continue to perform their respective duties under the Contract Documents, unless the

parties provide otherwise in the Contract Documents.

10.5

Consequential

Damages

DBIA believes that it is inappropriate for either Owner or Design-Builder to be responsible

to the other for consequential damages arising from the Project. This limitation on

consequential damages in no way restricts, however, the payment of liquidated damages,

if any, under Article 5 of the Agreement.

11.4

Design-Builder’s

Right to

Terminate for

Cause

11.6.2

Termination for

Convenience:

Owner’s Use of

Work Product

Owner should not use the Termination for Convenience clause to obtain Design-Builder’s

valuable design concepts and then seek lower bids from another design-builder. If Owner

terminates this Agreement for its own convenience, and chooses to proceed with the

Project using Design-Builder’s Work Product, Owner should pay an additional sum for the

use of Design-Builder’s Work Product pursuant to Section 4.3 of the Agreement.

Electronic Data

Design-Builder and Owner shall agree on the software and format for the transmission of

Electronic Data. Ownership of Work Product in electronic form is governed by Article 4 of

the Agreement. The transmitting party disclaims all warranties with respect to the media

transmitting the Electronic Data, but nothing in this Article is intended to negate duties with

respect to the standard of care in creating the Electronic Data.

9.4.3

Article

If Design-Builder properly terminates the Agreement for cause, it shall recover from Owner

in the same way as if Owner had terminated the Agreement for convenience under Section

11.6 of the General Conditions. Owner shall pay to Design-Builder its costs, reasonable

overhead and profit on the costs, and an additional payment based on a percentage of the

remaining balance of the Contract Price, all as set forth in Article 8 of the Agreement.

Instruction Sheet for DBIA Document No. 535

Page 3

TABLE OF CONTENTS

Article

Name

Page

Article 1 General ............................................................................................................. 1

Article 2 Design-Builder’s Services and Responsibilities ................................................ 3

Article 3 Owner’s Services and Responsibilities ............................................................. 7

Article 4 Hazardous Conditions and Differing Site Conditions ........................................ 9

Article 5 Insurance and Bonds ...................................................................................... 10

Article 6 Payment .......................................................................................................... 12

Article 7 Indemnification ................................................................................................ 14

Article 8 Time ................................................................................................................ 16

Article 9 Changes to the Contract Price and Time ........................................................ 17

Article 10 Contract Adjustments and Disputes ............................................................. 18

Article 11 Stop Work and Termination .......................................................................... 20

Article 12 Electronic Data ............................................................................................. 23

Article 13 Miscellaneous ............................................................................................... 24

Article 1

General

1.1

Mutual Obligations.

1.1.1 Owner and Design-Builder commit at all times to cooperate fully with each other and

proceed on the basis of trust and good faith, to permit each party to realize the benefits afforded

under the Contract Documents.

1.2

Basic Definitions.

1.2.1 Agreement refers to the executed contract between Owner and Design-Builder under either

DBIA Document No. 525, Standard Form of Agreement Between Owner and Design-Builder –

Lump Sum (2024 Edition); DBIA Document No. 530, Standard Form of Agreement Between Owner

and Design-Builder – Cost Plus Fee With an Option for a Guaranteed Maximum Price (2024

Edition); DBIA Document No. 544, Standard Form of Progressive Design-Build Agreement (2024

Edition); or DBIA Document No. 545, Standard Form of Progressive Design-Build Agreement for

Water and Wastewater Projects (2024 Edition).

1.2.2 Basis of Design Documents are as follows: For DBIA Document No. 530, Standard Form

of Agreement Between Owner and Design-Builder – Cost Plus Fee With an Option for a

Guaranteed Maximum Price, the Basis of Design Documents are those documents specifically

listed in, as applicable, the GMP Exhibit or GMP Proposal as being the “Basis of Design

Documents.” For DBIA Document No. 525, Standard Form of Agreement Between Owner and

Design-Builder – Lump Sum, for DBIA Document No. 544, Standard Form of Progressive DesignBuild Agreement, the Basis of Design Documents are Owner’s Project Criteria, Design-Builder’s

Proposal, and the Deviation List, if any. For DBIA Document No. 545, Standard Form of

Progressive Design-Build Agreement for Water and Wastewater Projects, the Basis of Design

Documents are Owner’s Project Criteria, Design-Builder’s Proposal and the Deviation List, if any.

1.2.3 Construction Documents are the documents, consisting of Drawings and Specifications, to

be prepared or assembled by Design-Builder consistent with the Basis of Design Documents unless

a deviation from the Basis of Design Documents is specifically set forth in a Change Order executed

by both Owner and Design-Builder, as part of the design review process contemplated by Section

2.4 of these General Conditions of Contract.

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

Documents.

1.2.5 Design-Build Team is comprised of Design-Builder, Design Consultant, and key

Subcontractors identified by Design-Builder.

1.2.6 Design Consultant is a qualified, licensed design professional who is not an employee of

Design-Builder, but is retained by Design-Builder, or employed or retained by anyone under

contract with Design-Builder, to furnish design services required under the Contract Documents. A

Design Sub-Consultant is a qualified, licensed design professional who is not an employee of

Design Consultant but is retained by Design Consultant or employed or retained by anyone under

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

1.2.7 Design Submission means any and all documents, shop drawings, electronic information,

including computer programs and computer generated materials, data, plans, drawings, sketches,

illustrations, specifications, descriptions, models, and other information developed, prepared,

furnished, delivered or required to be delivered by, or for, Design-Builder.

1.2.8 Final Completion is the date on which all Work is complete in accordance with the Contract

Documents, including but not limited to, any items identified in the punch list prepared under

DBIA Document No. 535

Standard Form of General Conditions of Contract Between Owner and Design-Builder

Page 1

Section 6.6.1 and the submission of all documents set forth in Section 6.7.2.

1.2.9 Force Majeure Events are those events that are beyond the control of both Design-Builder

and Owner, including the events of war, floods, labor disputes, earthquakes, epidemics, adverse

weather conditions not reasonably anticipated, and other acts of God.

1.2.10 General Conditions of Contract refer to this DBIA Document No. 535, Standard Form of

General Conditions of Contract Between Owner and Design-Builder (2022 Edition).

1.2.11 GMP Exhibit means that exhibit attached to DBIA Document No. 530, Standard Form of

Agreement Between Owner and Design-Builder – Cost Plus Fee With an Option for a Guaranteed

Maximum Price, which exhibit will have been agreed upon by Owner and Design-Builder prior to

the execution of the Agreement.

1.2.12 GMP Proposal or Proposal means that proposal developed by Design-Builder in

accordance with Section 6.6 of DBIA Document No. 530, Standard Form of Agreement Between

Owner and Design-Builder, Cost Plus Fee With an Option for a Guaranteed Maximum Price or

with Section 1.3 of DBIA Document No. 544, Progressive Design-Build Agreement, or DBIA

Document No. 545, Progressive Design-Build Agreement for Water and Wastewater Projects.

1.2.13 Hazardous Conditions are any materials, wastes, substances and chemicals deemed to

be hazardous under applicable Legal Requirements, or the handling, storage, remediation, or

disposal of which are regulated by applicable Legal Requirements.

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

rules, regulations, orders and decrees of any government or quasi-government entity having

jurisdiction over the Project or Site, the practices involved in the Project or Site, or any Work.

1.2.15 Owner’s Project Criteria are developed by or for Owner to describe Owner’s program

requirements and objectives for the Project, including use, space, price, time, site and expandability

requirements, as well as submittal requirements and other requirements governing DesignBuilder’s performance of the Work. Owner’s Project Criteria may include conceptual documents,

design criteria, design performance specifications, design specifications, and LEED® or other

sustainable design criteria and other Project-specific technical materials and requirements.

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

1.2.17 Subcontractor is any person or entity retained by Design-Builder as an independent

contractor to perform a portion of the Work and shall include materialmen and suppliers.

1.2.18 Sub-Subcontractor is any person or entity retained by a Subcontractor as an independent

contractor to perform any portion of a Subcontractor’s Work and shall include materialmen and

suppliers.

1.2.19 Substantial Completion or Substantially Complete means the date on which the Work, or

an agreed upon portion of the Work, is sufficiently complete in accordance with the Contract

Documents so that Owner can occupy and use the Project or a portion thereof for its intended

purposes.

1.2.20 Work is comprised of all Design-Builder’s design, construction and other services required

by the Contract Documents, including procuring and furnishing all materials, equipment, services

and labor reasonably inferable from the Contract Documents.

DBIA Document No. 535

Standard Form of General Conditions of Contract Between Owner and Design-Builder

Page 2

Article 2

Design-Builder’s Services and Responsibilities

2.1

General Services.

2.1.1 Design-Builder’s Representative shall be reasonably available to Owner and shall have the

necessary expertise and experience required to supervise the Work. Design-Builder’s

Representative shall communicate regularly with Owner and shall be vested with the authority to

act on behalf of Design-Builder. Design-Builder’s Representative may be replaced only with the

mutual agreement of Owner and Design-Builder.

2.1.2 Unless the parties agree on a different time period for submission of a status report,

Design-Builder shall provide Owner with a monthly status report detailing the progress of the Work,

including (i) whether the Work is proceeding according to schedule; (ii) whether discrepancies,

conflicts, or ambiguities exist in the Contract Documents that require resolution; (iii) whether health

and safety issues exist in connection with the Work; (iv) status of the contingency account to the

extent provided for in the Standard Form of Agreement Between Owner and Design-Builder – Cost

Plus Fee With an Option for a Guaranteed Maximum Price; and (v) other items that require

resolution so as not to jeopardize Design-Builder’s ability to complete the Work for the Contract

Price and within the Contract Time(s). Status reports shall be submitted with Design-Builder’s draft

Payment Applications as a pre-requisite to payment.

2.1.3 Unless a schedule for the execution of the Work has been attached to the Agreement as

an exhibit at the time the Agreement is executed, Design-Builder shall prepare and submit, at least

three (3) days prior to the meeting contemplated by Section 2.1.4 hereof, a schedule for the

execution of the Work for Owner’s review and response. The schedule shall indicate the dates for

the start and completion of the various stages of Work, including the dates when Owner information

and approvals are required to enable Design-Builder to achieve the Contract Time(s). The schedule

shall be revised as required by conditions and progress of the Work, but such revisions shall not

relieve Design-Builder of its obligations to complete the Work within the Contract Time(s), as such

dates may be adjusted in accordance with the Contract Documents. Owner’s review of, and

response to, the schedule shall not be construed as relieving Design-Builder of its complete and

exclusive control over the means, methods, sequences and techniques for executing the Work.

2.1.4 The parties will meet within seven (7) days after execution of the Agreement to discuss

issues affecting the administration of the Work and to implement the necessary procedures,

including those relating to submittals and payment, to facilitate the ability of the parties to perform

their obligations under the Contract Documents.

2.2

Design Professional Services.

2.2.1 Design-Builder shall, consistent with applicable state licensing laws, provide through

qualified, licensed design professionals employed by Design-Builder, or procured from qualified,

independent licensed Design Consultants, the necessary design services, including architectural,

engineering and other design professional services, for the preparation of the required drawings,

specifications and other design submittals to permit Design-Builder to complete the Work consistent

with the Contract Documents. Nothing in the Contract Documents is intended or deemed to create

any legal or contractual relationship between Owner and any Design Consultant.

2.2.2 Design-Builder shall employ only Design Consultants and/or Design Subconsultants who

are duly licensed and qualified to perform the Work consistent with the Contract Documents. Prior

to the date that Design Consultants and/or Design Subconsultants perform Work on the Project,

Design-Builder shall identify in writing to Owner all Design Consultants and Design Subconsultants.

To the extent that Design-Builder has not selected a Design Consultant or Design Subconsultant

prior to performing the Work, Design-Builder shall provide Owner in writing a list of any

subsequently added Design Consultants and/or Design Subconsultants and their scope of Work

DBIA Document No. 535

Standard Form of General Conditions of Contract Between Owner and Design-Builder

Page 3

prior to their performing Work on the Project. Owner may reasonably object to Design-Builder’s

selection of any Design Consultant or Design Subconsultant, provided that the Contract Price

and/or Contract Time(s) shall be adjusted to the extent that Owner’s decision impacts DesignBuilder’s cost and/or time of performance. Design-Builder shall not substitute a listed Design

Consultant or Subconsultant without obtaining Owner’s prior written consent; such consent shall

not be unreasonably withheld. Nothing in the Contract Documents is intended or deemed to create

any legal or contractual relationship between Owner and any Design Consultant or Design

Subconsultant, including but not limited to any third-party beneficiary rights.

2.3

Standard of Care for Design Professional Services.

2.3.1 The standard of care for all design professional services performed to execute the Work

shall be the care and skill ordinarily used by members of the applicable profession practicing under

similar conditions at the same time and locality of the Project.

2.4

Design Development Services.

2.4.1 Design-Builder and Owner shall, consistent with any applicable provision of the Contract

Documents, agree upon any interim Design Submissions that Owner may wish to review, which

interim Design Submissions may include design criteria, drawings, diagrams and specifications

setting forth the Project requirements.

2.4.1.1 Design Submissions shall be consistent with the Owner’s Project Criteria as well

as the Basis of Design Documents, as the Basis of Design Documents may have been

changed or supplemented through the design process set forth in this Section 2.4.1. By

submitting Design Submissions, Design-Builder represents to the Owner that the Work

depicted and otherwise shown, contained, or reflected in Design Submissions may be

constructed in compliance with the then current Contract Price and Contract Time.

Notwithstanding the above, Design-Builder may propose Design Submissions that may

alter the Basis of Design Documents, the Contract Price and/or Contract Time; however,

Design-Builder must provide notice thereof in accordance with Article 10 of the General

Conditions and obtain a Change Order before such proposed Design Submissions are

incorporated into the Construction Documents.

2.4.1.2 On or about the time of the Design Submissions, Design-Builder and Owner shall

meet and confer about the Design Submissions, with Design-Builder identifying during

such meetings, among other things, the evolution of the design and any changes to the

Basis of Design Documents, or, if applicable, previously submitted Design Submissions.

Changes to the Basis of Design Documents, including those that are deemed minor

changes under Section 9.3.1, shall be processed in accordance with Article 9. Minutes of

the meetings, including a full listing of all changes, will be maintained by Design-Builder

and provided to all attendees for review. Following the design review meeting, Owner shall

review and approve the interim Design Submissions and meeting minutes in a time that is

consistent with the turnaround times set forth in Design-Builder’s schedule.

2.4.1.3 Owner shall review and respond to Design Submissions, providing any comments

and/or concerns about the Design Submissions. Owner shall provide all comments on the

Design Submissions within the time provided by the Contract Documents. Design-Builder

shall revise the Design Submissions (and any other deliverables) in response to Owner’s

comments and incorporate said responses into the next submission of Design

Submissions.

2.4.1.4 If incorporation of Owner’s comments results in a design that is inconsistent with

or otherwise gives rise to a change in Owner’s Project Criteria, the Basis of Design

Documents, the Contract Price and/or the Contract Time, Design-Builder shall provide

notice thereof in accordance with Articles 9 and 10 of the General Conditions. Changes to

the Basis of Design Documents, the Contract Price and/or the Contract Time, including

DBIA Document No. 535

Standard Form of General Conditions of Contract Between Owner and Design-Builder

Page 4

those that are deemed minor changes, shall be processed in accordance with Article 9 of

the General Conditions.

2.4.2 Design-Builder shall submit to Owner Construction Documents setting forth in detail

drawings and specifications describing the requirements for construction of the Work. The

Construction Documents shall be consistent with the latest set of interim Design Submissions, as

such submissions may have been modified in a design review meeting and recorded in the meeting

minutes. The parties shall have a design review meeting to discuss, and Owner shall review and

approve, the Construction Documents in accordance with the procedures set forth in Section 2.4.1

above. Design-Builder shall proceed with construction in accordance with the approved

Construction Documents and shall submit one set of approved Construction Documents to Owner

prior to commencement of construction.

2.4.3 Owner’s review and approval of interim Design Submissions, meeting minutes, and the

Construction Documents is for the purpose of mutually establishing a conformed set of Contract

Documents compatible with the requirements of the Work. Neither Owner’s review nor approval of

any interim Design Submissions, meeting minutes, and Construction Documents shall be deemed

to transfer any design liability from Design-Builder to Owner. Design-Builder shall provide Owner

with sufficient time in the Project Schedule to review and approve the Design Submissions.

2.4.4 To the extent not prohibited by the Contract Documents or Legal Requirements, DesignBuilder may prepare interim Design Submissions and Construction Documents for a portion of the

Work to permit construction to proceed on that portion of the Work prior to completion of the

Construction Documents for the entire Work.

2.5

Legal Requirements.

2.5.1 Design-Builder shall perform the Work in accordance with all Legal Requirements and shall

provide all notices applicable to the Work as required by the Legal Requirements.

2.5.2 The Contract Price and/or Contract Time(s) shall be adjusted to compensate DesignBuilder for the effects of any changes in the Legal Requirements enacted after the date of the

Agreement affecting the performance of the Work, or if a Guaranteed Maximum Price is established

after the date of the Agreement, the date the parties agree upon the Guaranteed Maximum Price.

Such effects may include, without limitation, revisions Design-Builder is required to make to the

Construction Documents because of changes in Legal Requirements.

2.6

Government Approvals and Permits.

2.6.1 Except as identified in an Owner’s Permit List attached as an exhibit to the Agreement,

Design-Builder shall obtain and pay for all necessary permits, approvals, licenses, government

charges and inspection fees required for the prosecution of the Work by any government or quasigovernment entity having jurisdiction over the Project.

2.6.2 Design-Builder shall provide reasonable assistance to Owner in obtaining those permits,

approvals and licenses that are Owner’s responsibility.

2.7

Design-Builder’s Construction Phase Services.

2.7.1 Unless otherwise provided in the Contract Documents to be the responsibility of Owner or

a separate contractor, Design-Builder shall provide through itself or Subcontractors the necessary

supervision, labor, inspection, testing, start-up, material, equipment, machinery, temporary utilities

and other temporary facilities to permit Design-Builder to complete construction of the Project

consistent with the Contract Documents.

2.7.2 Design-Builder shall perform all construction activities efficiently and with the requisite

expertise, skill and competence to satisfy the requirements of the Contract Documents. Design-

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Builder shall at all times exercise complete and exclusive control over the means, methods,

sequences and techniques of construction.

2.7.3 Design-Builder shall employ only Subcontractors who are duly licensed and qualified to

perform the Work consistent with the Contract Documents. Prior to the date that Subcontractors

perform Work on the Project, Design-Builder shall identify in writing to Owner all Subcontractors.

To the extent that Design-Builder has not selected a Subcontractor prior to performing the Work,

Design-Builder shall provide Owner in writing a list of any subsequently added Subcontractors prior

to their performing Work on the Project. Owner may reasonably object to Design-Builder’s selection

of any Subcontractor, provided that the Contract Price and/or Contract Time(s) shall be adjusted to

the extent that Owner’s decision impacts Design-Builder’s cost and/or time of performance.

Design-Builder may not substitute listed Subcontractors without Owner’s prior written consent; such

consent shall not be unreasonably withheld.

2.7.4 Design-Builder assumes responsibility to Owner for the proper performance of the Work of

Subcontractors and any acts and omissions in connection with such performance. Nothing in the

Contract Documents is intended or deemed to create any legal or contractual relationship between

Owner and any Subcontractor or Sub-Subcontractor, including but not limited to any third-party

beneficiary rights.

2.7.5 Design-Builder shall coordinate the activities of all Subcontractors. If Owner performs other

work on the Project or at the Site with separate contractors under Owner’s control, Design-Builder

agrees to reasonably cooperate and coordinate its activities with those of such separate contractors

so that the Project can be completed in an orderly and coordinated manner without unreasonable

disruption.

2.7.6 Design-Builder shall keep the Site reasonably free from debris, trash and construction

wastes to permit Design-Builder to perform its construction services efficiently, safely and without

interfering with the use of adjacent land areas. Upon Substantial Completion of the Work, or a

portion of the Work, Design-Builder shall remove all debris, trash, construction wastes, materials,

equipment, machinery and tools arising from the Work or applicable portions thereof to permit

Owner to occupy the Project or a portion of the Project for its intended use.

2.8

Design-Builder’s Responsibility for Project Safety.

2.8.1 Design-Builder recognizes the importance of performing the Work in a safe manner so as

to prevent damage, injury or loss to (i) all individuals at the Site, whether working or visiting; (ii) the

Work, including materials and equipment incorporated into the Work or stored on-Site or off-Site;

and (iii) all other property at the Site or adjacent thereto. Design-Builder assumes responsibility for

implementing and monitoring all safety precautions and programs related to the performance of the

Work. Design-Builder shall, prior to commencing construction, designate a Safety Representative

with the necessary qualifications and experience to supervise the implementation and monitoring

of all safety precautions and programs related to the Work. Unless otherwise required by the

Contract Documents, Design-Builder’s Safety Representative shall be an individual stationed at the

Site who may have responsibilities on the Project in addition to safety. The Safety Representative

shall make routine daily inspections of the Site and shall hold weekly safety meetings with DesignBuilder’s personnel, Subcontractors and others as applicable.

2.8.2 Design-Builder and Subcontractors shall comply with all Legal Requirements relating to

safety, as well as any Owner-specific safety requirements set forth in the Contract Documents,

provided that such Owner-specific requirements do not violate any applicable Legal Requirement.

Design-Builder will immediately report in writing any safety-related injury, loss, damage or accident

arising from the Work to Owner’s Representative and, to the extent mandated by Legal

Requirements, to all government or quasi-government authorities having jurisdiction over safetyrelated matters involving the Project or the Work.

2.8.3

Design-Builder’s responsibility for safety under this Section 2.8 is not intended in any way

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to relieve Subcontractors and Sub-Subcontractors of their own contractual and legal obligations

and responsibility for (i) complying with all Legal Requirements, including those related to health

and safety matters; and (ii) taking all necessary measures to implement and monitor all safety

precautions and programs to guard against injuries, losses, damages or accidents resulting from

their performance of the Work.

2.9

Design-Builder’s Warranty.

2.9.1 Design-Builder warrants to Owner that the construction, including all materials and

equipment furnished as part of the construction, shall be new unless otherwise specified in the

Contract Documents, of good quality, in conformance with the Contract Documents and free of

defects in materials and workmanship. If the parties have opted in Section ___ of the Agreement

to establish a limited time frame for the warranty set forth in this Section, the warranty in this section

shall be limited to the time frame set forth in Section ____ of the Agreement. Design-Builder’s

warranty obligation excludes defects caused by abuse, alterations, or failure to maintain the Work

in a commercially reasonable manner. Nothing in this warranty is intended to limit any

manufacturer’s warranty which provides Owner with greater warranty rights than set forth in this

Section 2.9 or the Contract Documents. Design-Builder will provide Owner with all manufacturers’

warranties upon Substantial Completion.

2.10

Correction of Defective Work.

2.10.1 Design-Builder agrees to correct any Work that is found to not be in conformance with the

Contract Documents, including that part of the Work subject to Section 2.9 hereof, within a period

of one year from the date of Substantial Completion of the Work or any portion of the Work, or

within such longer period to the extent required by any specific warranty included in the Contract

Documents.

2.10.2 Design-Builder shall, within seven (7) days of receipt of written notice from Owner that the

Work is not in conformance with the Contract Documents, take meaningful steps to commence

correction of such nonconforming Work, including the correction, removal or replacement of the

nonconforming Work and any damage caused to other parts of the Work affected by the

nonconforming Work. If Design-Builder fails to commence the necessary steps within such seven

(7) day period, Owner, in addition to any other remedies provided under the Contract Documents,

may provide Design-Builder with written notice that Owner will commence correction of such

nonconforming Work with its own forces. If Owner does perform such corrective Work, DesignBuilder shall be responsible for all reasonable costs incurred by Owner in performing such

correction. If the nonconforming Work creates an emergency requiring an immediate response, the

seven (7) day period identified herein shall be deemed inapplicable.

2.10.3 The one-year period referenced in Section 2.10.1 above applies only to Design-Builder’s

obligation to correct nonconforming Work and is not intended to constitute a period of limitations

for any other rights or remedies Owner may have regarding Design-Builder’s other obligations

under the Contract Documents.

Article 3

Owner’s Services and Responsibilities

3.1

Duty to Cooperate.

3.1.1 Owner shall, throughout the performance of the Work, cooperate with Design-Builder and

perform its responsibilities, obligations and services in a timely manner to facilitate Design-Builder’s

timely and efficient performance of the Work and so as not to delay or interfere with Design-

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Builder’s performance of its obligations under the Contract Documents.

3.1.2 Owner shall provide timely reviews and approvals of interim Design Submissions and

Construction Documents consistent with the turnaround times set forth in Design-Builder’s

schedule.

3.1.3 Owner shall give Design-Builder timely notice of any Work that Owner notices to be

defective or not in compliance with the Contract Documents.

3.2

Furnishing of Services and Information.

3.2.1 Unless expressly stated to the contrary in the Contract Documents, Owner shall provide,

at its own cost and expense, for Design-Builder’s information and use the following, all of which

Design-Builder is entitled to rely upon in performing the Work:

3.2.1.1 Surveys describing the property, boundaries, topography and reference points for

use during construction, including existing service and utility lines;

3.2.1.2 Geotechnical studies describing subsurface conditions, and other surveys

describing other latent or concealed physical conditions at the Site;

3.2.1.3 Temporary and permanent easements, zoning and other requirements and

encumbrances affecting land use, or necessary to permit the proper design and

construction of the Project and enable Design-Builder to perform the Work;

3.2.1.4 A legal description of the Site;

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

3.2.1.6 To the extent available, environmental studies, reports and impact statements

describing the environmental conditions, including Hazardous Conditions, in existence at

the Site.

3.2.2 Owner is responsible for securing and executing all necessary agreements with adjacent

land or property owners that are necessary to enable Design-Builder to perform the Work. Owner

is further responsible for all costs, including attorneys’ fees, incurred in securing these necessary

agreements.

3.3

Financial Information.

3.3.1 At Design-Builder’s written request, Owner shall promptly furnish reasonable evidence

satisfactory to Design-Builder that Owner has adequate funds available and committed to fulfill all

of Owner’s contractual obligations under the Contract Documents. If Owner fails to furnish such

financial information in a timely manner, Design-Builder may stop Work under Section 11.3 hereof

or exercise any other right permitted under the Contract Documents.

3.3.2 Design-Builder shall cooperate with the reasonable requirements of Owner’s lenders or

other financial sources. Notwithstanding the preceding sentence, after execution of the Agreement

Design-Builder shall have no obligation to execute for Owner or Owner’s lenders or other financial

sources any documents or agreements that require Design-Builder to assume obligations or

responsibilities greater than those existing obligations Design-Builder has under the Contract

Documents.

3.4

Owner’s Representative.

3.4.1 Owner’s Representative shall be responsible for providing Owner-supplied information and

approvals in a timely manner to permit Design-Builder to fulfill its obligations under the Contract

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Documents. Owner’s Representative shall also provide Design-Builder with prompt notice if it

observes any failure on the part of Design-Builder to fulfill its contractual obligations, including any

errors, omissions or defects in the performance of the Work. Owner’s Representative shall

communicate regularly with Design-Builder and shall be vested with the authority to act on behalf

of Owner.

3.5

Government Approvals and Permits.

3.5.1 Owner shall obtain and pay for all necessary permits, approvals, licenses, government

charges and inspection fees set forth in Owner’s Permit List attached as an exhibit to the

Agreement.

3.5.2 Owner shall provide reasonable assistance to Design-Builder in obtaining those permits,

approvals and licenses that are Design-Builder’s responsibility.

3.6

Owner’s Separate Contractors.

3.6.1 Owner is responsible for all work performed on the Project or at the Site by separate

contractors under Owner’s control. Owner shall contractually require its separate contractors to

cooperate with and coordinate their activities so as not to interfere with Design-Builder in order to

enable Design-Builder to timely complete the Work consistent with the Contract Documents.

Article 4

Hazardous Conditions and Differing Site Conditions

4.1

Hazardous Conditions.

4.1.1 Unless otherwise expressly provided in the Contract Documents to be part of the Work,

Design-Builder is not responsible for any Hazardous Conditions encountered at the Site. Upon

encountering any Hazardous Conditions, Design-Builder will stop Work immediately in the

affected area and duly notify Owner and, if required by Legal Requirements, all government or

quasi-government entities with jurisdiction over the Project or Site.

4.1.2 Upon receiving notice of the presence of suspected Hazardous Conditions, Owner shall

take the necessary measures required to ensure that the Hazardous Conditions are remediated or

rendered harmless. Such necessary measures shall include Owner retaining qualified independent

experts to (i) ascertain whether Hazardous Conditions have actually been encountered, and, if they

have been encountered, (ii) prescribe the remedial measures that Owner must take either to

remove the Hazardous Conditions or render the Hazardous Conditions harmless.

4.1.3 Design-Builder shall be obligated to resume Work at the affected area of the Project only

after Owner’s expert provides it with written certification that (i) the Hazardous Conditions have

been removed or rendered harmless; and (ii) all necessary approvals have been obtained from all

government and quasi-government entities having jurisdiction over the Project or Site.

4.1.4 Design-Builder will be entitled, in accordance with these General Conditions of Contract,

to an adjustment in its Contract Price and/or Contract Time(s) to the extent Design-Builder’s cost

and/or time of performance have been adversely impacted by the presence of Hazardous

Conditions.

4.1.5 To the fullest extent permitted by law, Owner shall indemnify, defend and hold harmless

Design-Builder, Design Consultants, Subcontractors, anyone employed directly or indirectly by any

of them, and their officers, directors, employees and agents, from and against any and all claims,

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losses, damages, liabilities and expenses, including reasonable attorneys’ fees and expenses,

arising out of or resulting from the presence, removal or remediation of Hazardous Conditions at

the Site.

4.1.6 Notwithstanding the preceding provisions of this Section 4.1, Owner is not responsible for

Hazardous Conditions introduced to the Site by Design-Builder, Subcontractors or anyone for

whose acts they may be liable. To the fullest extent permitted by law, Design-Builder shall

indemnify, defend and hold harmless Owner and Owner’s officers, directors, employees and agents

from and against all claims, losses, damages, liabilities and expenses, including attorneys’ fees

and expenses, arising out of or resulting from those Hazardous Conditions introduced to the Site

by Design-Builder, Subcontractors or anyone for whose acts they may be liable.

4.2

Differing Site Conditions.

4.2.1 Concealed or latent physical conditions or subsurface conditions at the Site that (i)

materially differ from the conditions indicated in the Contract Documents or (ii) are of an unusual

nature, differing materially from the conditions ordinarily encountered and generally recognized as

inherent in the Work, are collectively referred to herein as “Differing Site Conditions.” If DesignBuilder encounters a Differing Site Condition, Design-Builder will be entitled to an adjustment in the

Contract Price and/or Contract Time(s) to the extent Design-Builder’s cost and/or time of

performance are adversely impacted by the Differing Site Condition.

4.2.2 Upon encountering a Differing Site Condition, Design-Builder shall provide prompt written

notice to Owner of such condition, which notice shall not be later than fourteen (14) days after such

condition has been encountered. Design-Builder shall, to the extent reasonably possible, provide

such notice before the Differing Site Condition has been substantially disturbed or altered.

Article 5

Insurance and Bonds

5.1

Design-Builder’s Insurance Requirements.

5.1.1 Design-Builder is responsible for procuring and maintaining the insurance for the coverage

amounts all as set forth in the Insurance Exhibit to the Agreement. Coverage shall be secured from

insurance companies authorized to do business in the state in which the Project is located, and

with a minimum rating set forth in the Agreement.

5.1.2 Design-Builder’s insurance shall specifically delete any design-build or similar exclusions

that could compromise coverages because of the design-build delivery of the Project.

5.1.3 Prior to commencing any construction services hereunder, Design-Builder shall provide

Owner with certificates evidencing that (i) all insurance obligations required by the Contract

Documents are in full force and in effect and will remain in effect for the duration required by the

Contract Documents; and (ii) no insurance coverage will be canceled, renewal refused, or

materially changed unless at least thirty (30) days’ prior written notice is given to Owner. If any of

the foregoing insurance coverages are required to remain in force after final payment is reasonably

available, an additional certificate evidencing continuation of such coverage shall be submitted with

the Final Application for Payment. If any information concerning reduction of coverage is not

furnished by the insurer, it shall be furnished by Design-Builder with reasonable promptness

according to Design-Builder’s information and belief.

5.2

Owner’s Liability Insurance.

5.2.1

Owner shall procure and maintain from insurance companies authorized to do business in

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the state in which the Project is located such liability insurance as set forth in the Insurance Exhibit

to the Agreement to protect Owner from claims which may arise from the performance of Owner’s

obligations under the Contract Documents or Owner’s conduct during the course of the Project.

5.3

Owner’s Property Insurance.

5.3.1 Unless otherwise provided in the Contract Documents, Owner shall procure and maintain

from insurance companies authorized to do business in the state in which the Project is located

property insurance upon the entire Project to the full insurable value of the Project, including

professional fees, overtime premiums and all other expenses incurred to replace or repair the

insured property. The property insurance obtained by Owner shall be the broadest coverage

commercially available, and shall include as additional insureds the interests of Owner, DesignBuilder, Design Consultants and Subcontractors of any tier. Such insurance shall include but not

be limited to the perils of fire and extended coverage, theft, vandalism, malicious mischief, collapse,

flood, earthquake, debris removal and other perils or causes of loss as called for in the Contract

Documents. The property insurance shall include physical loss or damage to the Work, including

materials and equipment in transit, at the Site or at another location as may be indicated in DesignBuilder’s Application for Payment and approved by Owner. Owner is responsible for the payment

of any deductibles under the insurance required by this Section 5.3.1.

5.3.2 Unless the Contract Documents provide otherwise, Owner shall procure and maintain

boiler and machinery insurance that will include the interests of Owner, Design-Builder, Design

Consultants, and Subcontractors of any tier. Owner is responsible for the payment of any

deductibles under the insurance required by this Section 5.3.2.

5.3.3 Prior to Design-Builder commencing any Work, Owner shall provide Design-Builder with

certificates evidencing that (i) all Owner’s insurance obligations required by the Contract

Documents are in full force and in effect and will remain in effect until Design-Builder has completed

all of the Work and has received final payment from Owner; and (ii) no insurance coverage will be

canceled, renewal refused, or materially changed unless at least thirty (30) days’ prior written notice

is given to Design-Builder. Owner’s property insurance shall not lapse or be canceled if Owner

occupies a portion of the Work pursuant to Section 6.6.3 hereof. Owner shall provide DesignBuilder with the necessary endorsements from the insurance company prior to occupying a portion

of the Work.

5.3.4 Any loss covered under Owner’s property insurance shall be adjusted with Owner and

Design-Builder and made payable to both of them as trustees for the insureds as their interests

may appear, subject to any applicable mortgage clause. All insurance proceeds received as a result

of any loss will be placed in a separate account and distributed in accordance with such agreement

as the interested parties may reach. Any disagreement concerning the distribution of any proceeds

will be resolved in accordance with Article 10 hereof.

5.3.5 Owner and Design-Builder waive against each other and Owner’s separate contractors,

Design Consultants, Subcontractors, agents and employees of each and all of them, all damages

covered by property insurance provided herein, except such rights as they may have to the

proceeds of such insurance. Design-Builder and Owner shall, where appropriate, require similar

waivers of subrogation from Owner’s separate contractors, Design Consultants and Subcontractors

and shall require each of them to include similar waivers in their contracts. These waivers of

subrogation shall not contain any restriction or limitation that will impair the full and complete extent

of its applicability to any person or entity unless agreed to in writing prior to the execution of this

Agreement.

5.4

Bonds and Other Performance Security.

5.4.1 If Owner requires Design-Builder to obtain performance and labor and material payment

bonds, or other forms of performance security, the amount, form and other conditions of such

security shall be as set forth in the Agreement.

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

shall be a company qualified and registered to conduct business in the state in which the Project is

located.

Article 6

Payment

6.1

Schedule of Values.

6.1.1 Unless required by Owner upon execution of this Agreement, within ten (10) days of

execution of the Agreement, Design-Builder shall submit for Owner’s review and approval a

schedule of values for all of the Work. The Schedule of Values will (i) subdivide the Work into its

respective parts; (ii) include values for all items comprising the Work; and (iii) serve as the basis

for monthly progress payments made to Design-Builder throughout the Work.

6.1.2 Owner will timely review and approve the schedule of values so as not to delay the

submission of Design-Builder’s first application for payment. Owner and Design-Builder shall timely

resolve any differences so as not to delay Design-Builder’s submission of its first application for

payment.

6.2

Monthly Progress Payments.

6.2.1 On or before the date established in the Agreement, Design-Builder shall submit for

Owner’s review and approval its Application for Payment requesting payment for all Work

performed as of the date of the Application for Payment. The Application for Payment shall be

accompanied by all supporting documentation required by the Contract Documents and/or

established at the meeting required by Section 2.1.4 hereof.

6.2.2 The Application for Payment may request payment for equipment and materials not yet

incorporated into the Project, provided that (i) Owner is satisfied that the equipment and materials

are suitably stored at either the Site or another acceptable location; (ii) the equipment and materials

are protected by suitable insurance; and (iii) upon payment, Owner will receive the equipment and

materials free and clear of all liens and encumbrances.

6.2.3 All discounts offered by Subcontractors, Sub-Subcontractors, and suppliers to DesignBuilder for early payment shall accrue one hundred percent to Design-Builder to the extent DesignBuilder advances payment. Unless Owner advances payment to Design-Builder specifically to

receive the discount, Design-Builder may include in its Application for Payment the full

undiscounted cost of the item for which payment is sought.

6.2.4 The Application for Payment shall constitute Design-Builder’s representation that the Work

described therein has been performed consistent with the Contract Documents, has progressed to

the point indicated in the Application for Payment, and that title to all Work will pass to Owner free

and clear of all claims, liens, encumbrances, and security interests upon the incorporation of the

Work into the Project, or upon Design-Builder’s receipt of payment, whichever occurs earlier.

6.3

Withholding of Payments.

6.3.1 On or before the date established in the Agreement, Owner shall pay Design-Builder all

amounts properly due. If Owner determines that Design-Builder is not entitled to all or part of an

Application for Payment as a result of Design-Builder’s failure to meet its obligations hereunder, it

will notify Design-Builder in writing at least five (5) days prior to the date payment is due. The notice

shall indicate the specific amounts Owner intends to withhold, the reasons and contractual basis

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for the withholding, and the specific measures Design-Builder must take to rectify Owner’s

concerns. Design-Builder and Owner will attempt to resolve Owner’s concerns prior to the date

payment is due. If the parties cannot resolve such concerns, Design-Builder may pursue its rights

under the Contract Documents, including those under Article 10 hereof.

6.3.2 Notwithstanding anything to the contrary in the Contract Documents, Owner shall pay

Design-Builder all undisputed amounts in an Application for Payment within the times required by

the Agreement.

6.4

Right to Stop Work and Interest.

6.4.1 If Owner fails to pay timely Design-Builder any undisputed amount that becomes due,

Design-Builder, in addition to all other remedies provided in the Contract Documents, may stop

Work pursuant to Section 11.3 hereof. All payments due and unpaid shall bear interest at the rate

set forth in the Agreement.

6.5

Design-Builder’s Payment Obligations.

6.5.1 Design-Builder will pay Design Consultants and Subcontractors, in accordance with its

contractual obligations to such parties, all the amounts Design-Builder has received from Owner

on account of their work. Design-Builder will impose similar requirements on Design Consultants

and Subcontractors to pay those parties with whom they have contracted. Design-Builder will

indemnify and defend Owner against any claims for payment and mechanic’s liens as set forth in

Section 7.3 hereof.

6.6

Substantial Completion.

6.6.1 Design-Builder shall notify Owner when it believes the Work, or to the extent permitted in

the Contract Documents, a portion of the Work, is Substantially Complete. Within five (5) days of

Owner’s receipt of Design-Builder’s notice, Owner and Design-Builder will jointly inspect such Work

to verify that it is Substantially Complete in accordance with the requirements of the Contract

Documents. If such Work is Substantially Complete, Owner shall prepare and issue a Certificate of

Substantial Completion that will set forth (i) the date of Substantial Completion of the Work or

portion thereof; (ii) the remaining items of Work that have to be completed before final payment;

(iii) provisions (to the extent not already provided in the Contract Documents) establishing Owner’s

and Design-Builder’s responsibility for the Project’s security, maintenance, utilities and insurance

pending final payment; and (iv) an acknowledgment that warranties commence to run on the date

of Substantial Completion, except as may otherwise be noted in the Certificate of Substantial

Completion.

6.6.2 Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work,

Owner shall release to Design-Builder all retained amounts relating, as applicable, to the entire

Work or completed portion of the Work, less an amount equal to the reasonable value of all

remaining or incomplete items of Work as noted in the Certificate of Substantial Completion.

6.6.3 Owner, at its option, may use a portion of the Work which has been determined to be

Substantially Complete, provided, however, that (i) a Certificate of Substantial Completion has been

issued for the portion of Work addressing the items set forth in Section 6.6.1 above; (ii) DesignBuilder and Owner have obtained the consent of their sureties and insurers, and to the extent

applicable, the appropriate government authorities having jurisdiction over the Project; and (iii)

Owner and Design-Builder agree that Owner’s use or occupancy will not interfere with DesignBuilder’s completion of the remaining Work.

6.7

Final Payment.

6.7.1 After receipt of a Final Application for Payment from Design-Builder, Owner shall make

final payment by the time required in the Agreement, provided that Design-Builder has achieved

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Final Completion.

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

the following information:

6.7.2.1 An affidavit that there are no claims, obligations or liens outstanding or unsatisfied

for labor, services, material, equipment, taxes or other items performed, furnished or

incurred for or in connection with the Work which will in any way affect Owner’s interests;

6.7.2.2 A general release executed by Design-Builder waiving, upon receipt of final

payment by Design-Builder, all claims, except those claims previously made in writing to

Owner and remaining unsettled at the time of final payment;

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

6.7.2.4 All operating manuals, warranties and other deliverables required by the Contract

Documents; and

6.7.2.5 Certificates of insurance confirming that required coverages will remain in effect

consistent with the requirements of the Contract Documents.

6.7.3 Upon making final payment, Owner waives all claims against Design-Builder except claims

relating to (i) Design-Builder’s failure to satisfy its payment obligations, if such failure affects

Owner’s interests; (ii) Design-Builder’s failure to complete the Work consistent with the Contract

Documents, including defects appearing after Substantial Completion; and (iii) the terms of any

special warranties required by the Contract Documents.

6.7.4 Deficiencies in the Work discovered after Substantial Completion, whether or not such

deficiencies would have been included on the punch list if discovered earlier, shall be deemed

warranty Work. Such deficiencies shall be corrected by Design-Builder under Sections 2.9 and

2.10 herein and shall not be a reason to withhold final payment from Design-Builder, provided,

however, that Owner shall be entitled to withhold from the Final Payment the reasonable value of

completion of such deficient work until such work is completed.

Article 7

Indemnification

7.1

Patent and Copyright Infringement.

7.1.1 Design-Builder shall defend any action or proceeding brought against Owner based on any

claim that the Work, or any part thereof, or the operation or use of the Work or any part thereof,

constitutes infringement of any United States patent or copyright, now or hereafter issued. Owner

shall give prompt written notice to Design-Builder of any such action or proceeding and will

reasonably provide authority, information and assistance in the defense of same. Design-Builder

shall indemnify and hold harmless Owner from and against all damages and costs, including but

not limited to attorneys’ fees and expenses awarded against Owner or Design-Builder in any such

action or proceeding. Design-Builder agrees to keep Owner informed of all developments in the

defense of such actions.

7.1.2 If Owner is enjoined from the operation or use of the Work, or any part thereof, as the result

of any patent or copyright suit, claim, or proceeding, Design-Builder shall at its sole expense take

reasonable steps to procure the right to operate or use the Work. If Design-Builder cannot so

procure such right within a reasonable time, Design-Builder shall promptly, at Design-Builder’s

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option and at Design-Builder’s expense, (i) modify the Work so as to avoid infringement of any such

patent or copyright; or (ii) replace said Work with Work that does not infringe or violate any such

patent or copyright.

7.1.3 Sections 7.1.1 and 7.1.2 above shall not be applicable to any suit, claim or proceeding

based on infringement or violation of a patent or copyright (i) relating solely to a particular process

or product of a particular manufacturer specified by Owner and not offered or recommended by

Design-Builder to Owner; or (ii) arising from modifications to the Work by Owner or its agents after

acceptance of the Work. If the suit, claim or proceeding is based upon events set forth in the

preceding sentence, Owner shall defend, indemnify and hold harmless Design-Builder to the same

extent Design-Builder is obligated to defend, indemnify and hold harmless Owner in Section 7.1.1

above.

7.1.4 The obligations set forth in this Section 7.1 shall constitute the sole agreement between

the parties relating to liability for infringement of violation of any patent or copyright.

7.2

Tax Claim Indemnification.

7.2.1 If, in accordance with Owner’s direction, an exemption for all or part of the Work is claimed

for taxes, Owner shall indemnify, defend and hold harmless Design-Builder from and against any

liability, penalty, interest, fine, tax assessment, attorneys’ fees or other expenses or costs incurred

by Design-Builder as a result of any action taken by Design-Builder in accordance with Owner’s

directive. Owner shall furnish Design-Builder with any applicable tax exemption certificates

necessary to obtain such exemption, upon which Design-Builder may rely.

7.3

Payment Claim Indemnification.

7.3.1 Provided that Owner is not in breach of its contractual obligation to make payments to

Design-Builder for the Work, Design-Builder shall indemnify, defend and hold harmless Owner from

any claims or mechanic’s liens brought against Owner or against the Project as a result of the

failure of Design-Builder, or those for whose acts it is responsible, to pay for any services, materials,

labor, equipment, taxes or other items or obligations furnished or incurred for or in connection with

the Work. Within three (3) days of receiving written notice from Owner that such a claim or

mechanic’s lien has been filed, Design-Builder shall commence to take the steps necessary to

discharge said claim or lien, including, if necessary, the furnishing of a mechanic’s lien bond. If

Design-Builder fails to do so, Owner will have the right to discharge the claim or lien and hold

Design-Builder liable for costs and expenses incurred, including attorneys’ fees.

7.4

Design-Builder’s General Indemnification.

7.4.1 Except as set forth in Section 7.4.2 below, Design-Builder, to the fullest extent permitted

by law, shall indemnify, hold harmless and defend Owner, its officers, directors, and employees

from and against claims, losses, damages, liabilities, including attorneys’ fees and expenses, for

non-party bodily injury, sickness or death and non-party property damage or destruction (other than

to the Work itself) but only to the extent resulting from the negligent acts or omissions of DesignBuilder, Design Consultants, Subcontractors, anyone employed directly or indirectly by any of them

or anyone for whose acts any of them may be liable.

7.4.2 For indemnity obligations that arise from professional errors and omissions, DesignBuilder, to the fullest extent permitted by law, shall indemnify Owner, its officers, directors, and

employees from and against claims, losses, damages, liabilities, including attorneys’ fees and

expenses, for non-party bodily injury, sickness, or death and non-party property damage or

destruction (other than to the Work itself) but only to the extent resulting from the negligent acts or

omissions of Design-Builder, Design Consultants, Subcontractors, anyone employed directly or

indirectly by any of them or anyone for whose acts any of them may be liable.

7.4.3

If an employee of Design-Builder, Design Consultants, Subcontractors, anyone employed

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directly or indirectly by any of them or anyone for whose acts any of them may be liable has a claim

against Owner, its officers, directors, employees, or agents, Design-Builder’s indemnity obligations

set forth in Sections 7.4.1 and 7.4.2 above shall not be limited by any limitation on the amount of

damages, compensation or benefits payable by or for Design-Builder, Design Consultants,

Subcontractors, or other entity under any employee benefit acts, including workers’ compensation

or disability acts.

7.5

Owner’s General Indemnification.

7.5.1 Owner, to the fullest extent permitted by law, shall indemnify, hold harmless and defend

Design-Builder and any of Design-Builder’s officers, directors, and employees, from and against

claims, losses, damages, liabilities, including attorneys’ fees and expenses, for bodily injury,

sickness or death, and property damage or destruction (other than to the Work itself) but only to

the extent resulting from the negligent acts or omissions of Owner, Owner’s separate contractors

or anyone for whose acts any of them may be liable.

7.6

Limited Recourse.

7.6.1 None of the obligations set forth in this Agreement (on behalf of any party) constitute

personal obligations of any natural persons who are the officers, shareholders, members, partners,

employees, or agents of any party unless the natural person is expressly identified as a contracting

party. All Parties to this Agreement shall not seek recourse against any natural person described

herein. This provision, however, shall not protect such natural persons from liability for willful

misconduct, illegal acts or intentional violation of any duty of corporate loyalty.

Article 8

Time

8.1

Obligation to Achieve the Contract Times.

8.1.1 Design-Builder agrees that it will commence performance of the Work and achieve the

Contract Time(s) in accordance with Article 5 of the Agreement.

8.2

Delays to the Work.

8.2.1 If Design-Builder is delayed on the critical path in the performance of the Work due to acts,

omissions, conditions, events, or circumstances beyond its control and due to no fault of its own or

those for whom Design-Builder is responsible, the Contract Time(s) for performance shall be

reasonably extended by Change Order. By way of example, events that will entitle Design-Builder

to an extension of the Contract Time(s) include acts or omissions of Owner or anyone under

Owner’s control (including separate contractors), changes in the Work, Differing Site Conditions,

Hazardous Conditions, and Force Majeure Events.

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

8.2.1 above, Design-Builder shall also be entitled to an appropriate adjustment of the Contract Price

provided, however, that the Contract Price shall not be adjusted for Force Majeure Events unless

otherwise provided in the Agreement.

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Article 9

Changes to the Contract Price and Time

9.1

Change Orders.

9.1.1 A Change Order is a written instrument issued after execution of the Agreement signed by

Owner and Design-Builder, stating their agreement upon all of the following:

9.1.1.1 The scope of the change in the Work;

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

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

9.1.2 All changes in the Work authorized by applicable Change Order shall be performed under

the applicable conditions of the Contract Documents. Owner and Design-Builder shall negotiate in

good faith and as expeditiously as possible the appropriate adjustments for such changes.

9.1.3 If Owner requests a proposal for a change in the Work from Design-Builder and

subsequently elects not to proceed with the change, a Change Order shall be issued to reimburse

Design-Builder for reasonable costs incurred for estimating services, design services and services

involved in the preparation of proposed revisions to the Contract Documents.

9.2

Work Change Directives.

9.2.1 A Work Change Directive is a written order prepared and signed by Owner directing a

change in the Work prior to agreement on an adjustment in the Contract Price and/or the Contract

Time(s).

9.2.2 Owner and Design-Builder shall negotiate in good faith and as expeditiously as possible

the appropriate adjustments for the Work Change Directive. Upon reaching an agreement, the

parties shall prepare and execute an appropriate Change Order reflecting the terms of the

agreement.

9.3

Minor Changes in the Work.

9.3.1 Minor changes in the Work do not involve an adjustment in the Contract Price and/or

Contract Time(s) and do not materially and adversely affect the Work, including the design, quality,

performance and workmanship required by the Contract Documents. Design-Builder may make

minor changes in the Work consistent with the intent of the Contract Documents, provided,

however, that Design-Builder shall promptly inform Owner, in writing, of any such changes and

record such changes on the documents maintained by Design-Builder.

9.4

Contract Price Adjustments.

9.4.1 The increase or decrease in Contract Price resulting from a change in the Work shall be

determined by one or more of the following methods:

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

parties;

9.4.1.2 A mutually accepted lump sum, properly itemized and supported by sufficient

substantiating data to permit evaluation by Owner;

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

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

9.4.1.3 above and Owner issues a Work Change Directive, the cost of the change of the

Work shall be determined by the reasonable expense and savings in the performance of

the Work resulting from the change, including a reasonable overhead and profit, as may

be set forth in the Agreement.

9.4.2 If unit prices are set forth in the Contract Documents or are subsequently agreed to by the

parties, but application of such unit prices will cause substantial inequity to Owner or Design-Builder

because of differences in the character or quantity of such unit items as originally contemplated,

such unit prices shall be equitably adjusted.

9.4.3 If Owner and Design-Builder disagree upon whether Design-Builder is entitled to be paid

for any services required by Owner, or if there are any other disagreements over the scope of Work

or proposed changes to the Work, Owner and Design-Builder shall resolve the disagreement

pursuant to Article 10 hereof. As part of the negotiation process, Design-Builder shall furnish Owner

with a good faith estimate of the costs to perform the disputed services in accordance with Owner’s

interpretations. If the parties are unable to agree and Owner expects Design-Builder to perform the

services in accordance with Owner’s interpretations, Design-Builder shall proceed to perform the

disputed services, conditioned upon Owner issuing a written order to Design-Builder (i) directing

Design-Builder to proceed; and (ii) specifying Owner’s interpretation of the services that are to be

performed. If this occurs, Design-Builder shall be entitled to submit in its Applications for Payment

an amount equal to fifty percent (50%) of its reasonable estimated direct cost to perform the

services, and Owner agrees to pay such amounts, with the express understanding that (i) such

payment by Owner does not prejudice Owner’s right to argue that it has no responsibility to pay for

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

change to the Work.

9.5

Emergencies.

9.5.1 In any emergency affecting the safety of persons and/or property, Design-Builder shall act,

at its discretion, to prevent threatened damage, injury or loss. Any change in the Contract Price

and/or Contract Time(s) on account of emergency work shall be determined as provided in this

Article 9.

Article 10

Contract Adjustments and Disputes

10.1

Requests for Contract Adjustments and Relief.

10.1.1 If either Design-Builder or Owner believes that it is entitled to relief against the other for

any event arising out of or related to the Work or Project, such party shall provide written notice to

the other party of the basis for its claim for relief. Such notice shall, if possible, be made prior to

incurring any cost or expense and in accordance with any specific notice requirements contained

in applicable sections of these General Conditions of Contract. In the absence of any specific notice

requirement, written notice shall be given within a reasonable time, not to exceed twenty-one (21)

days, after the occurrence giving rise to the claim for relief or after the claiming party reasonably

should have recognized the event or condition giving rise to the request, whichever is later. The

claimant shall provide more complete information with respect to the claim within fourteen (14) days

of the initial notice. The more complete information shall include sufficient information to advise the

other party of the circumstances giving rise to the claim for relief, the specific contractual adjustment

or relief requested and the basis of such request.

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10.2

Dispute Avoidance and Resolution.

10.2.1 The parties are fully committed to working with each other throughout the Project and agree

to communicate regularly with each other at all times so as to avoid or minimize disputes or

disagreements. If disputes or disagreements do arise, Design-Builder and Owner each commit to

resolving such disputes or disagreements in an amicable, professional and expeditious manner so

as to avoid unnecessary losses, delays and disruptions to the Work.

10.2.2 Design-Builder and Owner will first attempt to resolve disputes or disagreements at the

field level through discussions between Design-Builder’s Representative and Owner’s

Representative which shall conclude within fourteen (14) days of the written notice provided for in

Section 10.1.1 unless Owner and Design-Builder mutually agree otherwise.

10.2.3 If a dispute or disagreement cannot be resolved through Design-Builder’s Representative

and Owner’s Representative, Design-Builder’s Senior Representative and Owner’s Senior

Representative, upon the request of either party, shall meet as soon as conveniently possible, but

in no case later than thirty (30) days after such a request is made, to attempt to resolve such dispute

or disagreement. Five (5) days prior to any meetings between the Senior Representatives, the

parties will exchange relevant information that will assist the parties in resolving their dispute or

disagreement.

10.2.4 If after meeting the Senior Representatives determine that the dispute or disagreement

cannot be resolved on terms satisfactory to both parties, the parties shall submit within thirty (30)

days of the conclusion of the meeting of Senior Representatives the dispute or disagreement to

non-binding mediation. The mediation shall be conducted by a mutually agreeable impartial

mediator, or if the parties cannot so agree, a mediator designated by the American Arbitration

Association (“AAA”) pursuant to its Construction Industry Mediation Rules. The mediation will be

governed by and conducted pursuant to a mediation agreement negotiated by the parties or, if the

parties cannot so agree, by procedures established by the mediator. Unless otherwise mutually

agreed by Owner and Design-Builder and consistent with the mediator’s schedule, the mediation

shall commence within ninety (90) days of the submission of the dispute to mediation.

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

mediation.

10.3

Arbitration.

10.3.1 Any claims, disputes or controversies between the parties arising out of or relating to the

Agreement, or the breach thereof, which have not been resolved in accordance with the procedures

set forth in Section 10.2 above, shall be decided by arbitration in accordance with the Construction

Industry Arbitration Rules of the AAA then in effect, unless the parties mutually agree otherwise.

10.3.2 The award of the arbitrator(s) shall be final and binding upon the parties without the right

of appeal to the courts. Judgment may be entered upon it in accordance with applicable law by any

court having jurisdiction thereof.

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

10.3 may be joined or consolidated with any arbitration involving any other person or entity (i)

necessary to resolve the claim, dispute or controversy; or (ii) substantially involved in or affected

by such claim, dispute or controversy. Both Design-Builder and Owner will include appropriate

provisions in all contracts they execute with other parties in connection with the Project to require

such joinder or consolidation.

10.3.4 The prevailing party in any arbitration, or any other final, binding dispute proceeding upon

which the parties may agree, shall be entitled to recover from the other party reasonable attorneys’

fees and expenses incurred by the prevailing party. The prevailing party, if any, shall be determined

by the applicable binding dispute tribunal.

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10.4

Duty to Continue Performance.

10.4.1 Unless provided to the contrary in the Contract Documents, Design-Builder shall continue

to perform the Work and Owner shall continue to satisfy its payment obligations for undisputed

amounts to Design-Builder as well as any further amounts pursuant to Section 9.4.3, pending the

final resolution of any dispute or disagreement between Design-Builder and Owner.

10.5

CONSEQUENTIAL DAMAGES.

10.5.1 NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY (EXCEPT AS SET

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

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

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

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

REPUTATION OR FINANCING.

10.5.2 The consequential damages limitation set forth in Section 10.5.1 above is not intended to

affect the payment of liquidated damages or lost early completion bonus, if any, set forth in Article

5 of the Agreement, which both parties recognize has been established, in part, to reimburse Owner

or reward Design-Builder for some damages that might otherwise be deemed to be consequential.

Article 11

Stop Work and Termination

11.1

Owner’s Right to Stop Work.

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

and suspend the Work. Such suspension shall not exceed sixty (60) consecutive days or aggregate

more than ninety (90) days during the duration of the Project.

11.1.2 Design-Builder is entitled to seek an adjustment of the Contract Price and/or Contract

Time(s) if its cost or time to perform the Work has been adversely impacted by any suspension of

stoppage of the Work by Owner.

11.2

Owner’s Right to Perform and Terminate for Cause.

11.2.1 If Design-Builder persistently fails to (i) provide a sufficient number of skilled workers, (ii)

supply the materials required by the Contract Documents, (iii) comply with applicable Legal

Requirements, (iv) timely pay, without cause, Design Consultants or Subcontractors, (v) prosecute

the Work with promptness and diligence to ensure that the Work is completed by the Contract

Time(s), as such times may be adjusted, or (vi) perform material obligations under the Contract

Documents, then Owner, in addition to any other rights and remedies provided in the Contract

Documents or by law, shall have the rights set forth in Sections 11.2.2 and 11.2.3 below.

11.2.2 Upon the occurrence of an event set forth in Section 11.2.1 above, Owner may provide

written notice to Design-Builder that it intends to terminate the Agreement unless the problem cited

is cured, or commenced to be cured, within seven (7) days of Design-Builder’s receipt of such

notice. If Design-Builder fails to cure, or reasonably commence to cure, such problem, then Owner

may give a second written notice to Design-Builder of its intent to terminate within an additional

seven (7) day period. If Design-Builder, within such second seven (7) day period, fails to cure, or

reasonably commence to cure, such problem, then Owner may declare the Agreement terminated

for default by providing written notice to Design-Builder of such declaration.

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11.2.3 Upon declaring the Agreement terminated pursuant to Section 11.2.2 above, Owner may

enter upon the premises and take possession, for the purpose of completing the Work, of all

materials, equipment, scaffolds, tools, appliances and other items thereon, which have been

purchased or provided for the performance of the Work, all of which Design-Builder hereby

transfers, assigns and sets over to Owner for such purpose, and to employ any person or persons

to complete the Work and provide all of the required labor, services, materials, equipment and other

items. In the event of such termination, Design-Builder shall not be entitled to receive any further

payments under the Contract Documents until the Work shall be finally completed in accordance

with the Contract Documents. At such time, if the unpaid balance of the Contract Price exceeds the

cost and expense incurred by Owner in completing the Work, such excess shall be paid by Owner

to Design-Builder. Notwithstanding the preceding sentence, if the Agreement establishes a

Guaranteed Maximum Price, Design-Builder will only be entitled to be paid for Work performed

prior to its default. If Owner’s cost and expense of completing the Work exceeds the unpaid balance

of the Contract Price, then Design-Builder shall be obligated to pay the difference to Owner. Such

costs and expense shall include not only the cost of completing the Work, but also losses, damages,

costs and expense, including attorneys’ fees and expenses, incurred by Owner in connection with

the reprocurement and defense of claims arising from Design-Builder’s default, subject to the

waiver of consequential damages set forth in Section 10.5 hereof.

11.2.4 If Owner improperly terminates the Agreement for cause, the termination for cause will be

converted to a termination for convenience in accordance with the provisions of Section 11.6

hereof.

11.3

Design-Builder’s Right to Stop Work.

11.3.1 Design-Builder may, in addition to any other rights afforded under the Contract Documents

or at law, stop the Work for the following reasons:

11.3.1.1

hereof; or

Owner’s failure to provide financial assurances as required under Section 3.3

11.3.1.2

Owner’s failure to pay amounts properly due under Design-Builder’s

Application for Payment.

11.3.2 Should any of the events set forth in Section 11.3.1 above occur, Design-Builder has the

right to provide Owner with written notice that Design-Builder will stop the Work unless said event

is cured within seven (7) days from Owner’s receipt of Design-Builder’s notice. Design-Builder shall

not stop work unless it provides such written notice and Owner has failed to cure the reason for

default within the seven (7) day cure period. If Owner does not cure the problem within such seven

(7) day period, Design-Builder may stop the Work. In such case, Design-Builder shall be entitled to

make a claim for adjustment to the Contract Price and Contract Time(s) to the extent it has been

adversely impacted by such stoppage.

11.4

Design-Builder’s Right to Terminate for Cause.

11.4.1 Design-Builder, in addition to any other rights and remedies provided in the Contract

Documents or by law, may terminate the Agreement for cause for the following reasons:

11.4.1.1

The Work has been stopped for sixty (60) consecutive days, or more than

ninety (90) days during the duration of the Project, because of court order, any government

authority having jurisdiction over the Work, or orders by Owner under Section 11.1.1

hereof, provided that such stoppages are not due to the acts or omissions of Design-Builder

or anyone for whose acts Design-Builder may be responsible.

11.4.1.2

Owner’s failure to provide Design-Builder with any information, permits or

approvals that are Owner’s responsibility under the Contract Documents which result in the

Work being stopped for sixty (60) consecutive days, or more than ninety (90) days during

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the duration of the Project, even though Owner has not ordered Design-Builder in writing

to stop and suspend the Work pursuant to Section 11.1.1 hereof.

11.4.1.3

Owner’s failure to cure the problems set forth in Section 11.3.1 above after

Design-Builder has stopped the Work.

11.4.2 Upon the occurrence of an event set forth in Section 11.4.1 above, Design-Builder may

provide written notice to Owner that it intends to terminate the Agreement unless the problem cited

is cured, or commenced to be cured, within seven (7) days of Owner’s receipt of such notice. If

Owner fails to cure, or reasonably commence to cure, such problem, then Design-Builder may give

a second written notice to Owner of its intent to terminate within an additional seven (7) day period.

If Owner, within such second seven (7) day period, fails to cure, or reasonably commence to cure,

such problem, then Design-Builder may declare the Agreement terminated for default by providing

written notice to Owner of such declaration. In such case, Design-Builder shall be entitled to recover

in the same manner as if Owner had terminated the Agreement for its convenience under Article 8

of the Agreement.

11.5

Bankruptcy of Owner or Design-Builder.

11.5.1 If either Owner or Design-Builder institutes or has instituted against it a case under the

United States Bankruptcy Code (such party being referred to as the “Bankrupt Party”), such event

may impair or frustrate the Bankrupt Party’s ability to perform its obligations under the Contract

Documents. Accordingly, should such event occur:

11.5.1.1 The Bankrupt Party, its trustee or other successor, shall furnish, upon request of

the non-Bankrupt Party, adequate assurance of the ability of the Bankrupt Party to perform

all future material obligations under the Contract Documents, which assurances shall be

provided within ten (10) days after receiving notice of the request; and

11.5.1.2 The Bankrupt Party shall file an appropriate action within the bankruptcy court to

seek assumption or rejection of the Agreement within sixty (60) days of the institution of

the bankruptcy filing and shall diligently prosecute such action.

If the Bankrupt Party fails to comply with its foregoing obligations, the non-Bankrupt Party shall be

entitled to request the bankruptcy court to reject the Agreement, declare the Agreement terminated

and pursue any other recourse available to the non-Bankrupt Party under this Article 11.

11.5.2 The rights and remedies under Section 11.5.1 above shall not be deemed to limit the

ability of the non-Bankrupt Party to seek any other rights and remedies provided by the Contract

Documents or by law, including its ability to seek relief from any automatic stays under the United

States Bankruptcy Code or the right of Design-Builder to stop Work under any applicable

provision of these General Conditions of Contract.

11.6

Termination for Convenience.

11.6.1 Upon ten (10) days’ written notice to Design-Builder, Owner may, for its convenience and

without cause, elect to terminate this Agreement. In such event, Owner shall pay Design-Builder

for the following:

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

Work;

11.6.1.2 The reasonable costs and expenses attributable to such termination, including

demobilization costs and amounts due in settlement of terminated contracts with

Subcontractors and Design Consultants; and

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

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11.6.2 If Owner terminates this Agreement pursuant to Section 11.6.1 above and proceeds to

design and construct the Project through its employees, agents or third parties, Owner’s rights to

use the Work Product shall be as set forth in Section 4.3 of the Agreement. Such rights may not be

transferred or assigned to others without Design-Builder’s express written consent and such third

parties’ agreement to the terms of Article 4 of the Agreement.

Article 12

Electronic Data

12.1

Electronic Data.

12.1.1 The parties recognize that Contract Documents, including drawings, specifications and

three-dimensional modeling (such as Building Information Models) and other Work Product may be

transmitted among Owner, Design-Builder and others in electronic media as an alternative to paper

hard copies (collectively “Electronic Data”).

12.2

Transmission of Electronic Data.

12.2.1 Owner and Design-Builder shall agree upon the software and the format for the

transmission of Electronic Data. Each party shall be responsible for securing the legal rights to

access the agreed-upon format, including, if necessary, obtaining appropriately licensed copies of

the applicable software or electronic program to display, interpret and/or generate the Electronic

Data.

12.2.2 Neither party makes any representations or warranties to the other with respect to the

functionality of the software or computer program associated with the electronic transmission of

Work Product. Unless specifically set forth in the Agreement, ownership of the Electronic Data does

not include ownership of the software or computer program with which it is associated, transmitted,

generated or interpreted.

12.2.3 By transmitting Work Product in electronic form, the transmitting party does not transfer or

assign its rights in the Work Product. The rights in the Electronic Data shall be as set forth in Article

4 of the Agreement. Under no circumstances shall the transfer of ownership of Electronic Data be

deemed to be a sale by the transmitting party of tangible goods.

12.3

Electronic Data Protocol.

12.3.1 The parties acknowledge that Electronic Data may be altered or corrupted, intentionally or

otherwise, due to occurrences beyond their reasonable control or knowledge, including but not

limited to compatibility issues with user software, manipulation by the recipient, errors in

transcription or transmission, machine error, environmental factors, and operator error.

Consequently, the parties understand that there is some level of increased risk in the use of

Electronic Data for the communication of design and construction information and, in consideration

of this, agree, and shall require their independent contractors, Subcontractors and Design

Consultants to agree, to the following protocols, terms and conditions set forth in this Section 12.3.

12.3.2 Electronic Data will be transmitted in the format agreed upon in Section 12.2.1 above,

including file conventions and document properties, unless prior arrangements are made in

advance in writing.

12.3.3 The Electronic Data represents the information at a particular point in time and is subject

to change. Therefore, the parties shall agree upon protocols for notification by the author to the

recipient of any changes which may thereafter be made to the Electronic Data, which protocol shall

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also address the duty, if any, to update such information, data or other information contained in the

electronic media if such information changes prior to Final Completion of the Project.

12.3.4 The transmitting party specifically disclaims all warranties, expressed or implied, including,

but not limited to, implied warranties of merchantability and fitness for a particular purpose, with

respect to the media transmitting the Electronic Data. However, transmission of the Electronic Data

via electronic means shall not invalidate or negate any duties pursuant to the applicable standard

of care with respect to the creation of the Electronic Data, unless such data is materially changed

or altered after it is transmitted to the receiving party, and the transmitting party did not participate

in such change or alteration.

Article 13

Miscellaneous

13.1

Confidential Information.

13.1.1 Confidential Information is defined as information which is determined by the transmitting

party to be of a confidential or proprietary nature and: (i) the transmitting party identifies as either

confidential or proprietary; (ii) the transmitting party takes steps to maintain the confidential or

proprietary nature of the information; and (iii) the document is not otherwise available in or

considered to be in the public domain. The receiving party agrees to maintain the confidentiality of

the Confidential Information and agrees to use the Confidential Information solely in connection

with the Project.

13.2

Assignment.

13.2.1 Neither Design-Builder nor Owner shall, without the written consent of the other assign,

transfer or sublet any portion or part of the Work or the obligations required by the Contract

Documents.

13.3

Successorship.

13.3.1 Design-Builder and Owner intend that the provisions of the Contract Documents are

binding upon the parties, their employees, agents, heirs, successors and assigns.

13.4

Governing Law.

13.4.1 The Agreement and all Contract Documents shall be governed by the laws of the location

of the Project, without giving effect to its conflict of law principles.

13.5

Severability.

13.5.1 If any provision or any part of a provision of the Contract Documents shall be finally

determined to be superseded, invalid, illegal, or otherwise unenforceable pursuant to any

applicable Legal Requirements, such determination shall not impair or otherwise affect the validity,

legality, or enforceability of the remaining provision or parts of the provision of the Contract

Documents, which shall remain in full force and effect as if the unenforceable provision or part were

deleted.

13.6

No Waiver.

13.6.1 The failure of either Design-Builder or Owner to insist, in any one or more instances, on

the performance of any of the obligations required by the other under the Contract Documents shall

not be construed as a waiver or relinquishment of such obligation or right with respect to future

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performance.

13.7

Headings.

13.7.1 The headings used in these General Conditions of Contract, or any other Contract

Document, are for ease of reference only and shall not in any way be construed to limit or alter the

meaning of any provision.

13.8

Notice.

13.8.1 Whenever the Contract Documents require that notice be provided to the other party, notice

will be deemed to have been validly given (i) if delivered in person to the individual intended to

receive such notice; (ii) four (4) days after being sent by registered or certified mail, postage prepaid

to the address indicated in the Agreement; (iii) if transmitted by facsimile, by the time stated in a

machine-generated confirmation that notice was received at the facsimile number of the intended

recipient; or (iv) by electronic mail, by the time frame stated in the email-generated confirmation

that notice was received by the email of the intended recipient.

13.9

Amendments.

13.9.1 The Contract Documents may not be changed, altered, or amended in any way except in

writing signed by a duly authorized representative of each party.

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Standard Form of General Conditions of Contract Between Owner and Design-Builder

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DBIA Document No. 535

Standard Form of General Conditions of Contract Between Owner and Design-Builder

Page 26

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.