STATE OF OREGON

SAMPLE DESIGN-BUILD AGREEMENT

THE CONTRACT No. (C15578) IS BETWEEN:

AGENCY: The State of Oregon, acting by and through the Oregon Department of Transportation (“Agency”)

And

(Insert Design-Builder name) (Insert Design-Builder address line 1) (Insert Design-Builder address line 2)

Design-Builder (“Design-Builder,” also referred to as “Contractor”)

The Project is: US101/OR540 curb ramps (Coos Bay/North Bend), phase 2 Key No. 22570

Class of Project: This is a Federal Aid Project.

Advertisement Date: (MM/DD/YYYY)

Proposal Due Date: (MM/DD/YYYY)

SAMPLE Design-Build Agreement 2 Key No. 22570 US101/OR540 ADA Curb Ramps (Coos Bay/North Bend), Phase 2 08/05/2025

STATE OF OREGON

DESIGN-BUILD AGREEMENT

TABLE OF CONTENTS

SAMPLE DESIGN-BUILD AGREEMENT

TABLE OF CONTENTS

DESIGN-BUILD AGREEMENT

ARTICLE 1 GENERAL SCOPE OF THE WORK AND PROJECT

REQUIREMENTS

ARTICLE 2 RELATIONSHIP AND ROLES OF THE PARTIES

ARTICLE 3 DATE OF COMMENCEMENT, PROJECT SCHEDULE, AND

COMPLETION OF SERVICES

ARTICLE 4 COMPENSATION

ARTICLE 5 CHANGES IN THE WORK

ARTICLE 6 INSURANCE AND BONDING REQUIREMENTS

ARTICLE 7 WORK PRODUCT

ARTICLE 8 RECORD REQUIREMENTS

ARTICLE 9 DISPUTES

ARTICLE 10 TERMINATION

ARTICLE 11 WAGE RATES AND WORKFORCE REQUIREMENTS

ARTICLE 12 ENUMERATION OF CONTRACT DOCUMENTS AND ORDER OF

PRECEDENCE

ARTICLE 13 MISCELLANEOUS PROVISIONS

ARTICLE 14 DESIGN-BUILDER CERTIFICATIONS

EXHIBIT A-1 – DB TECHNICAL APPROACH (“DB Technical Approach”)

EXHIBIT A-2 – FORM SP

EXHIBIT A-3 – DESIGN UNITS

EXHIBIT B-1 - FHWA - 1273 REQUIRED CONTRACT PROVISIONS FEDERAL-

AID CONSTRUCTION CONTRACTS

EXHIBIT B-2 - ON-SITE WORKFORCE AFFIRMATIVE ACTION

REQUIREMENTS FOR WOMEN AND MINORITIES ON

FEDERAL-AID CONTRACTS

EXHIBIT B-3 - EQUAL EMPLOYMENT OPPORTUNITY PROVISIONS

EXHIBIT B-4 - OUTREACH, RECRUITMENT AND RETENTION

EXHIBIT B-5 - DBE REQUIREMENTS AND GOALS

EXHIBIT B-6 - RESERVED

EXHIBIT B-7 - RESERVED

EXHIBIT B-8 - APPRENTICESHIP REQUIREMENTS

EXHIBIT C – PROJECT WAGE RATES

EXHIBIT D-1 - PAYMENT BOND

EXHIBIT D-2 - PERFORMANCE BOND

EXHIBIT D-3 – WORKERS COMPENSATION COVERAGE

GENERAL PROVISIONS

SECTION DB110 – ORGANIZATION OF SPECIFICATIONS, CONVENTIONS,

ABBREVIATIONS, AND DEFINITIONS

SECTION DB140 – SCOPE OF WORK

SECTION DB141 – PERFORMANCE SPECIFICATIONS

SECTION DB150 – CONTROL OF WORK

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SECTION DB154 – QUALITY PLAN REQUIREMENTS

SECTION DB155 – DESIGN MANAGEMENT AND DESIGN QUALITY

MANAGEMENT

SECTION DB156 – CONSTRUCTION WORKMANSHIP AND MATERIALS

QUALITY MANAGEMENT

SECTION DB160 – SOURCE OF MATERIALS

SECTION DB165 – QUALITY OF MATERIALS

SECTION DB170 – LEGAL RELATIONS AND RESPONSIBILITIES

SECTION DB174 – UTILITIES, RIGHT-OF-WAY (ROW) AND RAILROADS

SECTION DB180 – PROSECUTION AND PROGRESS

SECTION DB190 – PRICING AND MEASUREMENT OF PAY QUANTITIES

SECTION DB195 – PAYMENT

SECTION DB196 – PAYMENT FOR EXTRA WORK

SECTION DB197 – PAYMENT FOR FORCE ACCOUNT WORK

SECTION DB199 – DISAGREEMENTS, PROTESTS, AND CLAIMS

ATTACHMENTS TO THE GENERAL PROVISIONS

ATTACHMENT A – PROJECT INFORMATION AND REQUIREMENTS

ATTACHMENT B – ENGINEERING DATA

ATTACHMENT C – REFERENCE DOCUMENTS

ATTACHMENT D – DB BOILERPLATE TECHNICAL SPECIAL PROVISIONS

ATTACHMENT E – DB SPECIAL PROVISIONS

SAMPLE Design-Build Agreement 4 Key No. 22570

THIS DESIGN-BUILD AGREEMENT (the “Agreement”) is made and entered into by and between the State of Oregon, acting by and through the Oregon Department of Transportation (the “Agency”) and [Enter successful Proposer’s legal name], (the “Design- Builder”) (individually, a “Party” and collectively, the “Parties”) for the US101/OR540 curb ramp (Coos Bay/North Bend), phase 2 Project (the “Project”) and shall become effective on the first date on which every Party has signed this Agreement and all necessary approvals have been obtained, including but not limited to approval for legal sufficiency by the Oregon Department of Justice (the “Effective Date”).

ARTICLE 1

GENERAL SCOPE OF THE WORK AND PROJECT REQUIREMENTS

The Project involves completion of all Work required for remediation of the Settlement Curb Ramp locations listed in the Inventory Matrix Attachment A-2 (and related intersection improvements such as signal poles and push button work) in ODOT Region 3 within the cities of North Bend and Coos Bay, spanning approximately 7 miles between project work locations. The Scope of Work is set forth in more detail in DB 140, as supplemented by the DB Technical Approach incorporated in Exhibit A-1. Exhibit A-3 sets forth the Agency-approved Design Units applicable to the Project.

Design-Builder shall perform all design, construction and quality management services, and providing all materials, equipment, tools and labor, transportation and incidentals necessary to complete the Project in accordance with the and all terms, provisions and conditions of the Contract Documents. The Design-Builder shall provide and perform all Design Services, Quality Management, and Construction Services in good faith and as expeditiously as is consistent with the Standards of skill and care.

All Work shall be performed in accordance with all applicable federal, state and local statutes, regulations, administrative rules, executive orders, ordinances and other Laws and Standards then in effect, unless otherwise specified in the Contract Documents.

The Agency’s consideration, Review and Comment, or Acceptance of any matters, or the Agency’s authorization of any action, will not be deemed or construed as relieving the Design- Builder of its sole responsibility for, and its complete and exclusive control over the means, methods, sequences and techniques for, performance of the Work in accordance with the terms of the Contract.

1.1 Design Services (“Design Services”) – Design-Builder shall perform all Design Services required under the Contract and otherwise necessary to complete the Work in accordance with all Contract requirements which shall include, at a minimum:

• Management of all Design Services

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• Providing all Design Documents

• Performance of all Professional Services, including, but not limited to structural design, Roadway design, hydraulic design, geotechnical design, environmental design, drainage design, and traffic control design

The Design Professionals currently designated as Key Personnel to provide such Design Services are listed in Article 2. All Design Services shall be performed by a Design Professional of the appropriate professional discipline in accordance with the degree of skill and care ordinarily used by competent practitioners of the same professional discipline when performing similar services under similar circumstances, taking into consideration the contemporary state of the practice and the project conditions.

All Design Documents and Design Reviews shall be provided and performed in accordance with the Design Review schedule established in the Project Work Schedule, and in accordance with all Contract requirements, including, but not limited to Section DB155. Upon completion of the Definitive Design Reviews, Interim Design Reviews, and Readiness-for- Construction Design Reviews, as specified in Section DB155, the Design-Builder shall finalize the Readiness-for-Construction Plans and Specifications. Readiness-for- Construction Plans and Specifications shall be a complete, fully coordinated, integrated package, without any significant modifications or further clarifications required.

Unless otherwise provided, the Design-Builder shall obtain all necessary permits not obtained by the Agency, and shall pay for all associated fees, including, but not limited to application, filing, plan review, and appeal fees.

1.2 Construction Services (“Construction Services”) – The Design-Builder shall perform, supervise and administer all Construction Services and Work required under the Contract and otherwise necessary to complete the Work in accordance with all Contract requirements and Contract documents, including furnishing of all Materials, Equipment, labor, and Incidentals necessary. The Construction Services and Work shall be of good quality free from faults and defects in Equipment, Materials and workmanship, and in conformance with the requirements of all Contract Documents, including all Legal Requirements. At no additional cost to the Agency, the Design-Builder shall correct construction Work that does not conform to these requirements.

1.3 Quality Management Services (“Quality Management Services”) - Quality Management services shall include, at a minimum, performance of all activities and obligations, including preparation of all documentation, described in Sections DB154, DB155, and DB156, and as otherwise necessary to ensure that the Work is performed in accordance with all Contract requirements. (See also DB110.20, definition for Quality Management.)

ARTICLE 2

RELATIONSHIP AND ROLES OF THE PARTIES

2.1 Independent Contractor- By executing this Agreement, the Design-Builder certifies that it is an independent Contractor, as defined in Oregon Revised Statute (ORS) 670.600, SAMPLE Design-Build Agreement 6 Key No. 22570 and represents and warrants that it is not an officer, employee, or agent of the Agency as those terms are used in ORS 30.265.

2.2 Agency Representative and Contact Information - The Agency’s representative(s) for this Project are:

Agency Representative (Agency Resident Engineer)

Name: Shane Javernick

E-mail Address: shane.javernick@odot.oregon.gov

Phone Number: 541-530-2231

Agency Representative (Resident Engineer)

Name: Josh Lonie

Address: 3500 NW Stewart Parkway Roseburg, OR 97470

E-mail Address: josh.e.lonie@odot.oregon.gov

Phone Number: 541-315-0747

2.3 Design-Builder Representative - The Design-Builder’s representative for this Project is Design-Builder’s Project Manager, (Enter name). [Insert from Proposal]

Address: ______________

E-mail Address: _________________

Phone Number: _________________

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2.4 Design-Builder’s Team (Design Firm, Major Subcontractors and Principal Participants) [Insert from Proposal]

2.4.1 Design Firm

2.4.2 Major Subcontractors

2.4.3 Principal Participants

2.5 Key Personnel - Key Personnel shall consist of the individuals serving in the roles listed below. The following Key Personnel shall perform the functions established under the Contract for the duration of the Contract.

The Design-Builder represents that the following Key Personnel are duly qualified and available to properly and timely perform their responsibilities under the Contract and for Project.

2.5.1 Project Management Personnel - The Design-Builder’s Project management personnel shall consist of the following Key Personnel:

2.5.1.1 Project Principal: (Enter name) (Enter firm)

2.5.1.2 Design-Build Project Manager: (Enter name) (Enter firm)

2.5.1.3 Construction Manager: (Enter name) (Enter firm)

2.5.1.4 Design Manager: (Enter name) (Enter firm)

2.5.1.5 Utility Coordinator: (Enter name) (Enter firm)

2.5.1.6 Environmental Compliance Manager: (Enter name) (Enter firm)

2.5.1.7 Traffic Control Manager: (Enter name) (Enter firm)

2.5.2 Quality Management Personnel – The Design-Builder’s Quality Management personnel shall consist of the Key Personnel listed below. The Quality Management personnel must be employed by Entities meeting the requirements set forth in DB180.35.

2.5.2.1 Project Quality Manager: (Enter name) (Enter firm)

2.5.2.2 Design Quality Manager: (Enter name) (Enter firm)

2.5.2.3 Construction Quality Manager: (Enter name) (Enter firm)

2.5.2.4 ADA Curb Ramp Lead Inspector: (Enter name) (Enter firm)

2.5.3 Design Professionals – The following Design Professionals shall be Key Personnel:

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2.5.3.1 Roadway Lead Engineer: (Enter name) (Enter firm)

2.6 Replacement of Key Personnel - The Design-Builder acknowledges and agrees that the Agency selected the Design-Builder, and is entering into the Contract, at least in part, because of the special qualifications, expertise, experience, judgement, and personal attention of each Key Personnel identified in this Article whether employed by the Design- Builder, a Subcontractor, or other entity. No Key Personnel shall be transferred, reassigned, or replaced, nor shall the authority or responsibilities of any Key Personnel be delegated to another person or Entity, without the prior written consent of the Agency. In those limited circumstances in which the Agency elects to consider a transfer, reassignment, replacement or delegation, the process shall be governed by DB180.35(c).

Should the Agency elect to consent to a transfer, reassignment, replacement or delegation, such consent shall not relieve the Design-Builder of its sole responsibility under the Contract to complete all Work and deliver the Project in accordance with all Contract requirements.

2.7 Replacement of Principal Participants and Major Subcontractors - The Design- Builder acknowledges and agrees that the Agency selected the Design-Builder, and is entering into the Contract, at least in part, because of the special qualifications, expertise and experience of each Principal Participant and Major Subcontractor identified in Article 2.3. No Principal Participant or Major Subcontractor shall be reassigned or replaced, in whole or in part, without the prior written consent of the Agency. In those limited circumstances in which the Agency elects to consider a reassignment or replacement, the process shall be governed by DB180.35(d).

Should the Agency elect to consent to a reassignment or replacement, such consent shall not relieve the Design-Builder of its sole responsibility under the Contract to complete all Work and deliver the Project in accordance with all Contract requirements.

ARTICLE 3

DATE OF COMMENCEMENT, PROJECT SCHEDULE, AND COMPLETION OF

SERVICES

3.1 Commencement of Services - The Design-Builder will be authorized to commence the Work contemplated by the Contract upon the issuance of Notice to Proceed. The Agency will not issue the Notice to Proceed until all required state and federal approvals have been obtained.

3.1.1 Commencement of Design Services - The Design-Builder shall not proceed with Design Services for Readiness-for-Construction Plans and Specifications for a Design Unit prior to receiving written notification from the Agency that the National Environmental Policy Act (NEPA) review process has been fully completed for that Design Unit.

3.1.2 Commencement of Construction Services - The Design-Builder shall not begin Construction Services for a Design Unit until the applicable Readiness-for-Construction

SAMPLE Design-Build Agreement 9 Key No. 22570

Plans and Specifications have been accepted by the Agency and all other requirements described in DB155.16 have been met.

3.2 Project Schedule The Project Work Schedule establishes the schedule and deadlines for Contract performance, with which the Design-Builder must comply. (See DB180.50(h) regarding completion dates.) The Project Work Schedule, as it may be modified during the course of the Project pursuant to DB180.41, shall anticipate and accommodate such periods of time as may be required for the Agency’s review of Design Documents, and for approval by Authorities having jurisdiction over the Project of any required submissions, including, but not limited to, applications for permits and environmental impact evaluations.

3.3 Completion Dates – The Contract Completion Dates are set forth in DB180.50(h).

3.4 Time is of the Essence - All time limits and performance completion dates stated in the Contract Documents are of the essence. (See DB180.85(a).)

3.5 Time Extensions - Notwithstanding terms, provisions and conditions for Contract Time extensions in DB180.80 or elsewhere in the Contract Documents, the Agency and the Design-Builder agree that timely completion of the Work within the Contract Time allowed is essential to the success of the Project.

3.6 Foreseeable and Unforeseen Project Events - The Design-Builder shall mitigate its damages and costs and shall minimize the damages and costs that the Agency may suffer as a result of foreseeable and unforeseen Project events, including but not limited to Acts of God or Nature, and any events or occurrences identified in DB170.60 (Indemnity / Hold Harmless).

ARTICLE 4

COMPENSATION

4.1 Contract Amount - The Agency agrees to compensate the Design-Builder for all Work performed under the Contract for a fixed price of $(Enter amount) (the “Contract Amount”).

The Contract Amount includes the entire cost of completing the Project in accordance with all Contract requirements, as contemplated by the Parties under the Contract, and further includes all Design-Builder contingencies, overhead and profit.

4.2 Progress Payments - The Contract Amount shall be payable in accordance with Section DB195. The Agency will make progress payments to the Design-Builder in accordance with Section DB195. Progress payments shall be based upon the Schedule of Prices included in Exhibit A-2, which shall include the cost of all Work. The Agency’s payment of progress payments shall not be deemed by either Party to constitute Acceptance or approval of any Work or Price Item covered by such payment, or a waiver of a claim or demand for repair of any defects therein. Computing Pay Requests for any Work done under Unit Prices will be in accordance with Section DB190.

SAMPLE Design-Build Agreement 10 Key No. 22570

4.3 Adjustments to the Contract Amount - The Contract Amount shall only be adjusted through issuance of properly-authorized Change Orders or other authorized payments for Extra Work, Options, and Changed Work or any applicable adjustments for escalation or de-escalation described in Section DB195, or any adjustments or assessments for incentives, disincentives, or liquidated damages, or any other adjustments as provided for in the Contract Documents.

4.4 Deductions from Monies Due - The Agency may deduct from monies due or to become due to the Design-Builder: (a) amounts representing price adjustments authorized under the commodity escalation/de-escalation terms, provisions and conditions of Section DB195; (b) amounts representing recoupment of damages, including, but not limited to liquidated damages; (c) amounts assessed by Authorities (e.g., fines and penalties) for which the Design-Builder is responsible under the terms or the Contract or by Law; (d) amounts the Agency is compelled by court order or other legal mandate to withhold or tender to Authorities or third parties; (e) amounts as reimbursement for Agency payments made on behalf of the Design-Builder or to meet Design-Builder obligations, as authorized under terms, provisions and conditions of the Contract; (f) amounts representing liquidated and delinquent debt owed to the State or any department or agency of the State. (In addition to the Agency’s other rights and remedies, the Agency may also undertake collection by administrative offset, or garnishment if applicable, of all monies due to recover such debt. Offsets or garnishment may be initiated after the Design-Builder has been given notice if required by law.); (g) Amounts as determined by the Agency to adjust or correct prior overpayments to the Design- Builder; and (h) any other amounts authorized under the Contract or by Law to be deducted or withheld. (See also Sections DB141, DB150, DB156, DB165, DB170, DB174, DB180, DB190 and DB195.)

ARTICLE 5

CHANGES IN THE WORK

The Design-Builder may make minor changes in the Work that do not involve an adjustment in the Contract Amount or Contract Time and do not materially or adversely affect the Work, including the design, quality, performance and workmanship required by the Contract Documents and are consistent with the intent of the Contract Documents. Provided, further, that the Design-Builder shall immediately notify Agency, in writing, of such minor changes and shall provide to the Agency such Design Documents as may be necessary to clearly identify the minor changes. The Agency in its sole discretion may at any time modify or revoke this Article.

Other than such minor changes in the Work as described above, Changed Work and Extra Work shall be authorized by the Agency only under the circumstances set forth in, and pursuant to the terms of, Sections DB140, DB195, DB196 and DB197. The Design-Builder shall not begin performance of any Changed Work, Options, or Extra Work, until the Agency has issued a properly-authorized Change Order (or Extra Work order, if applicable), and the Design-Builder shall perform all such Work strictly in accordance with the terms of the Change Order (or Extra Work order, if applicable).

SAMPLE Design-Build Agreement 11 Key No. 22570

ARTICLE 6

INSURANCE AND BONDING REQUIREMENTS

6.1 Insurance Requirements - Before the Agency will execute this Agreement, the Design- Builder shall obtain, at its expense, all of the insurance coverages identified in DB170.70 and shall maintain such insurance coverages in full force and effect throughout the duration of the Contract, and for any extended reporting period or tail coverage requirements. Provided, however, DB170.70 identifies insurance which may be obtained by the Design-Builder or Subcontractor after execution of this Design-Build Agreement, but shall be obtained and provided to Agency for approval at least 35 Calendar Days before commencement of the related Work. All coverages shall be obtained from insurance companies authorized to transact the business of insurance and issue coverage in the State of Oregon and that are acceptable to the Agency. The Design-Builder shall also comply with all other terms, provisions and requirements provided in DB170.70. In addition, for Change Orders, the Design-Builder shall also obtain any new or additional insurance, or modify the amount or coverage, or both, of insurance previously provided in connection with the Contract, as the Agency may require at any time.

If the Design-Builder is a partnership or a joint venture, the Agency reserves the right to require that insurance coverages be issued, as applicable, in the name of the partnership and the partners or in the name of the joint venture and its members.

No contractor-controlled insurance program will be used for the Contract or the Project.

No owner-controlled insurance program will be used for the Contract or the Project.

As evidence of the insurance coverages required by the Contract, the Design-Builder shall furnish Certificate(s) of Insurance and related insurance documentation needed to the Agency at the time(s) provided in the RFP Instructions to Proposers and DB170.70. All insurance and insurance providers are subject to the Agency’s acceptance.

6.2 Bonding Requirements – The Design-Builder shall provide to the Agency and maintain in full force, at its own expense and from Sureties licensed to do business in State of Oregon, a Performance Bond and a Payment Bond, each in the full Contract Amount, and the required Public Works Bond.

All bonds required under the terms, provisions and conditions of the Contract must be signed by the Surety’s authorized Attorney-in-Fact, and the Surety’s seal must be affixed to each bond. A power of attorney for the Attorney-in-Fact must be attached to the bonds, which must include bond numbers, and the Surety’s original seal must be affixed to the power of attorney. Faxed or photocopied bond forms will not be accepted by the Agency.

Performance and Payment Bonds. The Design-Builder shall maintain in full force, at its own expense and from Sureties licensed to do business in State of Oregon, a Performance Bond and a Payment Bond, using the forms provided in the RFP, each in the full Contract Amount.

Bonds shall not be cancelled without the Agency’s prior consent, nor will the Agency release them prior to Contract completion. The Parties understand and agree that the obligation of the Design-Builder’s Surety for the faithful performance of the Contract shall include not only

SAMPLE Design-Build Agreement 12 Key No. 22570 all construction, but also the performance of all Design Services and related non-Construction Services under the Contract, pursuant to the requirements of ORS 279C.375.

In the event of a Change Order that increases the Contract Amount, prior to the execution of the Change Order and prior to performance of the Work authorized by the Change Order, the Design-Builder shall provide to the Agency an additional or supplemental Performance Bond and Payment Bond each in the amount of such increase, and in each case in a sufficient amount so that the total bonded sum of all Performance Bonds and the total bonded sum of all Payment Bonds each equals or exceeds the total Contract Amount.

Public works Bond. Before starting Work, the Design-Builder and Subcontractors, unless exempt, shall each file with the Construction Contractors Board, and maintain in full force and effect a separate Public Works Bond as required by ORS 279C.836. The Design-Builder shall include this requirement in each of its subcontracts. The Design-Builder shall verify Subcontractors have filed a Public Works Bond before the Subcontractor begins Work.

ARTICLE 7

WORK PRODUCT

7.1 Ownership of Work Product:

(a) Work Product - All Work Products created for the Project, including derivative works and compilations, and whether or not such Work Product is considered a “work made for hire”, will be the exclusive property of the Agency. The Agency and the Design-Builder agree that such original works of authorship are “work made for hire” of which the Agency is the author within the meaning of the United States Copyright Act. If for any reason the original Work Product created for the Project is not “work made for hire”, the Design- Builder hereby irrevocably assigns to the Agency any and all of its rights, title, and interest in all original Work Product created for the Project, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property Law, doctrine or otherwise. The Design-Builder agrees to (a) ensure and confirm to the Agency that the Design-Builder’s agreements with its Subcontractors, employees and agents conform to the requirements of this Subsection, and (b) execute such further documents and instruments as may be reasonably necessary or as the Agency may reasonably request in order to fully vest such rights in the Agency. The Design-Builder forever waives and shall obtain waivers from its Subcontractors, employees and agents of any and all rights relating to original Work Product created for the Project, including without limitation, any and all rights arising under 17 USC §106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications.

(b) Design-Builder Intellectual Property - In the event that any Work Product is Design- Builder Intellectual Property or a derivative work based on Design-Builder Intellectual Property or a compilation that includes Design-Builder Intellectual Property or in the event any Design-Builder Intellectual Property is needed by the Agency to reasonably enjoy and use any Work Product, the Design-Builder hereby grants to the Agency an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display Design-Builder Intellectual Property and the pre-existing elements of the Design-Builder Intellectual Property employed in the

SAMPLE Design-Build Agreement 13 Key No. 22570

Work Product, including the right of the Agency to authorize Design-Builder, consultants and others to do the same on the Agency’s behalf. At the request of the Design-Builder, the Agency will take reasonable steps to protect the confidentiality and proprietary interests of the Design-Builder in any Design-Builder Intellectual Property licensed under this Section, within the limits of the Oregon Public Records Law (ORS 192.410 through 192.505) and the Oregon Uniform Trade Secrets Act (ORS 646.461 to 646.475).

(c) Third Party Work Product - In the event that Work Product is Third Party Intellectual Property or a derivative work based on Third Party Intellectual Property or a compilation that includes Third Party Intellectual Property or in the event any Third Party Intellectual Property is needed by the Agency to reasonably enjoy and use any Work Product, the Design-Builder shall secure on the Agency’s behalf and in the name of the Agency, an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the Third Party Intellectual Property and the pre-existing elements of the Third Party Intellectual Property employed in the Work Product, including the right of the Agency to authorize Design- Builders, consultants and others to do the same on the Agency’s behalf.

(d) Third Party Work Product-Derivative Work - In the event that Work Product created by the Design-Builder for the Project is a derivative work based on Third Party Intellectual Property, or is a compilation that includes Third Party Intellectual Property, the Design- Builder shall secure on the Agency’s behalf and in the name of the Agency an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of the Third Party Intellectual Property employed in the Work Product, including the right to authorize others to do the same on the Agency’s behalf.

(e) Design-Builder Intellectual Property-Derivative Work - In the event that Work Product created by the Design-Builder for the Project is a derivative work based on Design-Builder Intellectual Property, or is a compilation that includes Design-Builder Intellectual Property, the Design-Builder hereby grants to the Agency an irrevocable, non-exclusive, perpetual, royalty-free license to use, reproduce, prepare derivative works based upon, distribute copies of, perform and display the pre-existing elements of Design- Builder Intellectual Property employed in the Work Product, including the right of the Agency to authorize others to do the same on the Agency’s behalf.

(f) Limited Agency Indemnity - If the Agency reuses or modifies the Work Product without the Design-Builder’s involvement or prior written consent, to the extent permitted by Article XI, Section 7, of the Oregon Constitution, and subject to the protections afforded by the Oregon Tort Claims Act, the Agency will indemnify the Design-Builder, within the limits of the Tort Claims Act and any other protections afforded the Oregon Department of Transportation, against liability for damage to life or property arising from the State’s reuse or modification of the Work Product; provided however, the Agency will not be required to indemnify the Design-Builder for any such liability arising out of or related to defective Plans and Design-Builder Specifications, or the Design-Builder’s breach of the Contract, professional negligence, or the negligent or wrongful acts of the Design-Builder’s Subcontractors, employees, or agents in preparing the Plans and Design-Builder Specifications or testing and Inspection conducted for the Project.

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(g) Design-Builder Use of Work Product - The Design-Builder, despite other conditions of this provision, shall have the right to utilize such Work Products on its brochures or other literature that it may disseminate for its sales promotions, and in addition, unless specifically otherwise prohibited elsewhere in the Contract Documents, the Design-Builder may use its standard line drawings, Design-Builder Specifications, and calculations on other, unrelated projects.

(h) Quality and Accuracy - The Design-Builder shall be responsible for the professional quality, technical accuracy and coordination of all surveys, designs, drawings, specifications, geotechnical and other services furnished by the Design-Builder under this Contract. The Design-Builder shall, without additional compensation, correct all errors or deficiencies in the surveys, designs, drawings, specifications and/or other services. No fabrication, casting, or construction will occur until all related Design Review and shop drawing review comments are resolved with written Acceptance from the Agency Engineer.

7.2 Patents, Copyrights and Trademarks - Prior to use of designs, devices, materials, or processes protected by patent, copyright, or trademark, the Design-Builder shall obtain from the Entity entitled to enforce the patent, copyright, or trademark all necessary evidence of the Design-Builder’s legal right to use such design, device, material, or process.

The Design-Builder shall indemnify, defend, and hold harmless the Agency and its officers, directors, agents, and employees, and all third parties and Authorities having a possessory or ownership interest or regulatory authority over the Project, a work location, or the Project Site from claims of patent, copyright, or trademark infringement, and from costs, expenses, and damages the Design-Builder or the Agency may be obligated to pay as a result of such infringement during or after completing the Work.

ARTICLE 8

RECORD REQUIREMENTS

8.1 Accounting and Controls - The Design-Builder shall keep full and detailed accounts and records and shall exercise such controls as may be necessary for proper financial management under the Contract. The accounting and control systems shall be satisfactory to the Agency

The Design-Builder shall maintain all fiscal records in material compliance with generally accepted accounting principles, or other accounting principles that are accepted accounting principles and practices for the subject industry and adequate for the nature of the Design- Builder’s business, and in such a manner that providing a complete copy is neither time-consuming nor burdensome. Failure to maintain the records in this manner shall not be an excuse for not providing the records.

8.2 Access to Records - Throughout the term of the Contract and during the Record Retention Period, Design-Builder shall provide the Agency and the Agency's representatives, SAMPLE Design-Build Agreement 15 Key No. 22570 including, but not limited to, Agency consultants, the Oregon Secretary of State accountants and auditors, representatives of the Federal Highway Administration (FHWA), and representatives of regulatory bodies or other units of government, reasonable and regular access to the Project Records described herein, no matter how or where stored or with whom, electronically, paper format or otherwise. Such Agency or representatives of regulatory bodies or units of government may:

• Inspect, examine and copy or be provided a copy of all Design-Builder records;

• Audit the records, a Contract or the performance of a Contract;

• Inspect, examine and audit the records when, in the Agency’s sole discretion, the records may be helpful in substantiating costs associated with change orders or in the resolution of any claim, litigation, administrative proceeding or controversy arising out of or related to a Contract.

Reasons for access to audit, inspect, examine and copy records include without limitation, general auditing, reviewing claims, checking for collusive bidding, reviewing or checking payment of required wages, performance and contract compliance, workplace safety compliance, evaluating Related Entities, environmental compliance, and qualifications for performance of the Contract, including the ability to perform and the integrity of the Design- Builder. The Agency Project Manager’s authority to request or access records is subject to

OAR 734-010-0400(9).

Where such records are stored in a computer or in other digital media, the Agency Engineer may request, and the Design-Builder shall provide, a copy of the data files and such other information or access to software to allow the Agency Engineer review of the records.

Nothing in this Article is intended to operate as a waiver of the confidentiality of any communications privileged under the Oregon Evidence Code. Nothing in this Article limits the records or documents that can be obtained by legal process.

8.3 Record Retention Period. The Design-Builder shall preserve the foregoing for a period of 3 years after Final Acceptance, or until all disputes, if any, concerning the Contract or the Project have been resolved, whichever occurs later, or for such longer period as may be required by applicable law.

8.4 Records Required - The Design-Builder shall maintain all records, whether created before or after execution of the Contract, or during Contract performance, or after Contract completion, to document the following Project Records:

• The Design-Builder’s performance of the Contract or a subcontract;

• The Design-Builder’s ability to continue performance of the Contract or a subcontract; and

• All claims arising from or relating to performance under the Contract or a subcontract.

• All Project business records, including fiscal records, regardless of when created for the Design-Builder including without limitation:

• All documents and information required by Section DB141

SAMPLE Design-Build Agreement 16 Key No. 22570

• Work Product

• Bidding estimates and records, worksheets, tabulations or similar documents.

• Job cost detail reports, including monthly totals.

• Payroll records (including without limitation the ledger or register, and tax forms) and all documents that establish the periods, individuals involved, the hours for the individuals and the rates for the individuals.

• Records that identify the Equipment used by the Design-Builder and Subcontractors at all tiers in the performance of the Contract or Subcontracts, including without limitation, Equipment lists, rental contracts and any records used in setting rental rates.

• Invoices from vendors, rental agencies, and Subcontractors.

• Material quotes, invoices, purchase orders and requisitions.

• Contracts with Subcontractors at all tiers and contracts with Material

Suppliers, Suppliers and providers of rented Equipment.

• Contracts or documents of other arrangements with any Related Entity as defined in OAR 734-010-0400.

• General ledger.

• Trial Balance.

• Financial statements (including without limitation the balance sheet, income statement, statement of cash flows, and financial statement notes).

• Income tax returns.

• All worksheets used to prepare bids or claims, or to establish the cost components for the Pay Items, including without limitation, the labor, benefits and insurance, Materials, Equipment, and Subcontractors.

The following are examples, but not an exhaustive list, of Project Records:

• Daily time sheets and supervisors’ daily reports.

• Collective bargaining agreements.

• Earnings records.

• Journal entries and supporting schedules.

• Insurance, welfare, and benefits records.

• Material cost distribution worksheet.

• Subcontractors’ and lower tier Subcontractors’ payment certificates.

• Payroll and vendor’s cancelled checks.

• Cash disbursements journal.

• All documents related to each and every claim together with all documents that support the amount of damages as to each claim.

SAMPLE Design-Build Agreement 17 Key No. 22570

• Additional financial statements (including without limitation the balance sheet, income statement, statement of cash flows, and financial notes) preceding the execution of the Contract and following final payment of the Contract.

• Depreciation records on all business Equipment maintained by the business involved, its accountant, or other Entity. (If a source other than depreciation records is used to develop cost for the Design-Builder’s internal purposes in establishing the actual cost of owning and operating Equipment, all such other source documents.)

8.5 Public Records Requests - If records provided under this Section contain any information that may be considered exempt from disclosure as a trade secret under either ORS 192.345(2) or ORS 646.461(4), or under other grounds specified in Oregon Public Records Law, ORS 192.311 through 192.478, the Design-Builder shall clearly designate on or with the records the portions which the Design-Builder claims are exempt from disclosure, along with a justification and citation to the authority relied upon. Entire records or documents should not be designated as a trade secret or otherwise exempt from disclosure. Only specific information within a record or document should be so designated.

To the extent allowed by the Oregon Public Records Law or other applicable law related to the disclosure of public records, the Agency will not disclose records or portions of records the Design-Builder has designated as trade secrets to a third party, who is not a representative of the Agency, to the extent the records are exempt from disclosure as trade secrets under the Oregon Public Records Law or other applicable law, except to the extent the Agency is ordered to disclose in accordance with the Oregon Public Records Law or by a court of competent jurisdiction. Application of the Oregon Public Records Law or other applicable law shall determine whether any record, document or information is actually exempt from disclosure.

In addition, in response to a public records request, the Agency will not produce or disclose records so identified as exempt by the Design-Builder to any person other than representatives of the Agency, and others with authorized access under Article 8.2 above, without providing the Design-Builder a copy of the public records request, unless:

• The Design-Builder consents to such disclosure; or

• The Agency is prohibited by applicable law or court order from providing a copy of the public records request to the Design-Builder.

8.6 Subcontractor Requirements - The Design-Builder shall require each Major Subcontractor, Principal Participant, and subcontractors at any tier to comply with this Article 8, requirements.

SAMPLE Design-Build Agreement 18 Key No. 22570

ARTICLE 9

DISPUTES

9.1 Disputes - In the event of the existence of any dispute between the Parties under the Contract, the Design-Builder shall continue to perform the Contract in accordance with its terms and seek resolution in accordance with Section DB199.

9.2 Design-Builder’s Remedies - In the event of dispute involving alleged Agency default, the Design-Builder shall be limited solely to pursuing remedies through those claims procedures set forth in Section DB199.

9.3 Litigation - In the event of litigation instigated by the Design-Builder in accordance with DB199.40(e), or by the Agency for breach of contract, in addition to its other available remedies the Agency may pursue both recoupment and set-off.

ARTICLE 10

TERMINATION

10.1 Agency’s Termination for Public Convenience - The Contract may be terminated for convenience by the Agency, in whole or in part, without penalty, as provided in DB180.90(c).

In such case, the Agency will make payment in accordance with DB195.70(b). However, the amount to be paid to the Design-Builder shall in no event exceed the Contract Amount.

10.2 Agency’s Termination for Default - The Contract may be terminated by the Agency for default, as provided in DB180.90(a). In addition to the acts listed in DB180.90(a), the following shall also be considered defaults for which the Contract may be terminated:

10.2.1 The Design-Builder or its Design Professionals no longer hold the licenses or certificates required to perform the Work or any portion thereof.

10.2.2 The Design-Builder so fails to perform any agreed-upon portion of the Work or Contract Item as to endanger the Design-Builder’s performance under the Contract in accordance with its terms, provisions and conditions, and such breach, default or failure is not cured within the time periods and requirements of DB180.90(b).

10.2.3 The Design-Builder made knowing or reckless misrepresentations, concealed facts, or failed to disclose information in any responses provided by Design-Builder in its responses to the solicitation documents for the Project. Such shall constitute fraudulent inducements, and shall entitle the Agency to recover reliance damages, in addition to any other available remedies to which it may show itself entitled.

10.2.4 The Design-Builder fails to undertake, perform and complete the outreach and other measures and good faith efforts included in, or fails to otherwise comply with Implementation Requirements for EEO, Affirmative Action, Apprenticeship, Outreach and Retention, and DBE Program set forth in Section 11.5.

SAMPLE Design-Build Agreement 19 Key No. 22570

In case of termination for default as set forth in this 10.2, the Agency will make payment consistent with the payment provisions included in DB195.70(a), and at the Agency’s option, including payment for Materials left on hand, in accordance with DB195.80.

10.3 Agency’s Termination for Non-availability of Funds or Legal Authority – The Agency reasonably believes that sufficient funds are anticipated to pay all amounts due hereunder, and hereby covenants and agrees that it will use its best efforts to obtain and properly request and pursue funds from which payments hereunder may be made, including making provisions for such payments to the extent necessary in the budget submitted for the purpose of obtaining funds, and will use its best efforts to have such budget approved. It is the Agency’s intention to make all payments due hereunder if funds are legally available for such purpose. If, despite the above, the Agency is not allotted sufficient funds for the next succeeding fiscal period by appropriation, limitation, grant, or other funds source lawfully available to it for such purposes to continue the Project and make payments hereunder, the Agency may terminate the Contract, in whole or in part, without penalty, immediately upon notice to the Design-Builder or at such later date as the Agency may establish on such notice effective upon exhaustion of allocated funds, and such termination shall not constitute an event of default under any provision of the Contract. The Agency will give the Design-Builder notice of such non-availability of funds within 30 Calendar Days after it receives notice.

The Agency may terminate the Contract, in whole or in part, without penalty, immediately upon notice to the Design-Builder, or at such later date as the Agency may establish in such notice, upon the occurrence of any of the following events:

10.3.1 The Agency fails to receive funding, or appropriations, allotments, limitations or other expenditure authority at levels sufficient to pay for the Design- Builder’s Design Services, Work, or any other work;

10.3.2 Federal or State Laws are modified or interpreted in such a way that either the Design Services or Construction Services are prohibited, the Agency is prohibited from paying for such Design Services or Construction Services from the planned funding source, or the Agency otherwise lacks the legal authority to perform the contract.

In the case of termination as set forth in this 10.3, the Agency will provide the Design-Builder and the Design-Builder's Surety 7 Calendar Days' written notice of such termination. After such notice, the Design-Builder and the Design-Builder's Surety shall provide the Agency with immediate and peaceful possession of (i) the Project Site; (ii) all Design Documents and Work Products, both the final versions and also all Work Products that are under development and the Design-Builder shall provide full access to the foregoing, in all forms (electronic and paper), to the Agency; and (iii) Materials and Equipment to be incorporated into the Work, whether located on and off the Project Site, for which the Design-Builder received progress payments under Section DB195.

The Agency shall be entitled to electronic and paper copies of, and shall have the right to use, all Design Documents and Work Products of the Design-Builder, Subcontractors, consultants, and Suppliers performed to the date of termination, both the final versions and also all Work Products that are under development, and the Design-Builder shall deliver

SAMPLE Design-Build Agreement 20 Key No. 22570 copies of the same to the Agency upon request. The Design-Builder shall provide all Work Products that are stamped by the Professional of Record with the stamps and signatures intact.

In the event of termination under this Article 10.3, payment to the Design-Builder will be according to Article 10.1. The Parties shall otherwise perform their respective remaining obligations as provided in DB180.90(c) and DB195.70(b).

10.4 NEPA Related Termination – In addition to the Agency’s other rights of termination, consistent with 23 CFR 636.109, in the event the NEPA environmental review process does not result in the selection of a build alternative, or in the event the NEPA environmental review process was completed and resulted in a build alternative but was later reversed or modified resulting in selection of the no-build alterative, upon notice to the Design-Builder as provided in DB180.90(d), the Contract may be terminated by the Agency, in whole or in part, without penalty.

10.5 Quality of the Work - In the event of the Agency’s termination of the Contract, regardless of reason, the Design-Builder shall remain responsible for the quality of the Work performed.

SAMPLE Design-Build Agreement 21 Key No. 22570

ARTICLE 11

WAGE RATES AND WORKFORCE REQUIREMENTS

11.1 General - The Design-Builder is responsible for investigating local labor conditions.

The Agency does not imply that labor can be obtained at the minimum hourly wage rates specified in State or federal wage rate publications, and no increase in the Contract Amount will be made if wage rates paid are more than those listed.

11.2 Wage Rate Requirements for Public Works Projects (Federal Funds) - The Design- Builder shall comply with, and shall require all Subcontractors to comply with, all applicable minimum wage rate and other wage-related legal requirements, including but not limited…