Port-of-Port-Orford-draft-contract-AGT-and-Exhibits-Design-Build-Supplemental-Seawater-20250615.pdf

DESIGN-BUILD AGREEMENT PAGE 1

PORT OF PORT ORFORD

FOR THE

SUPPLEMENTAL SEAWATER DELIVERY SYSTEM PROJECT

This AGREEMENT is made effective as of _____________, 2025, by and between the following parties, for services in connection with the Project identified below:

OWNER:

PORT OF PORT ORFORD

PO Box 490

Port Orford, OR 97465

DESIGN-BUILDER:

[TITLE]

PROJECT: Supplemental Seawater Delivery System Design-Build

In consideration of the mutual covenants and obligations contained herein, Owner and Design-Builder now agree as follows:

Article 1.0 Scope of Work

1.1 Phased Delivery. Owner and Design-Builder will implement the Project on a phased basis.

1.2 Phase 1: Study and Technical Exhibit Phase Services. Owner has selected Design-Builder on the basis of Design-Builder’s proposal for the performance of design, pricing, and other services for the Project. Design-Builder shall perform such services to the level of completion required for Design-Builder and Owner to establish the Final Design for Phase 2, as set forth in Section

1.3 below. Design-Builder has proposed a Guaranteed Maximum Price for design and construction of the project, as set forth in Design-Builder’s Proposal (Exhibit F). Owner recognizes that a refined design may alter the Project price offered by Design Builder in

Exhibit F. Any modification to the Contract Price for Phase 2 shall be developed during Phase 1 on an “open-book” basis. Any modification of the Maximum Price offered and accepted shall be consistent with the price list in Exhibit F, and shall be accepted by Owner only upon a showing by Design-Builder that the proposed price changes are a reduction of the guaranteed maximum price or is consistent with the original price structure. Any price change must maintain the functional capacity and integrity of the design, and must be the minimum necessary price to fulfil the Project purpose. All Agreement terms concerning modifications to the Contract Price shall be interpreted consistent with this paragraph 1.2. Design-Builder’s Compensation for Phase 1

Services is set forth in Section 1, Phase 1, of Exhibit B, Compensation. The level of completion required for Phase 1 Services is defined in Exhibit A, Scope of Work (either as a percentage of design completion or by defined deliverables).

1.3 Phase 2: Design-Build Services. Design-Builder’s Phase 2 services shall consist of the completion of design services for the Project, the procurement of all materials and equipment for the Project, the performance of construction services for the Project, and additional materials as agreed by Owner and Design-Builder (hereafter Facility), and the provision of warranty services, all as further described in Exhibit A, Scope of Work. Upon receipt of Design-Builder’s proposed

Contract Price changes for Phase 2, Owner may (a) accept the Contract Price and issue a Notice to Proceed with Phase 2 services, or (b) enter into a negotiation with Design-Builder on the scope

DESIGN-BUILD AGREEMENT PAGE 2

and Contract Price, and, if required, on the schedule, for Phase 2 services to achieve a mutually acceptable basis on which to proceed, or (c) reject Design-Builder’s proposal for Phase 2 and either (i) cancel the Project, (ii) proceed with another Design-Builder, or (iii) exercise the “off-ramp” final design provisions of Section 1.4, Off-Ramp. The Contract Price for Phase 2 Services is set forth in Section 2, Phase 2, of Exhibit B, Compensation, based on Design-Builder’s accepted proposal and may be modified only as mutually agreed between the parties. Once the parties have agreed upon the Contract Price modifications, if any, and Owner has issued a Notice to Proceed with Phase 2, Design-Builder shall perform the Phase 2 services, all as further described in Exhibit A, Scope of Work, as it may be revised.

1.4 Off-Ramp

1.4.1 The parties acknowledge that Owner’s ability to successfully complete the Project may be significantly impacted if Owner elects to terminate Design-Builder’s services at the end of Phase

1, rather than proceeding to Phase 2 under Section 1.3 (“Phase 2 Services”). Consequently, Design-Builder hereby agrees that if Owner terminates Design-Builder for any reason, Owner shall have the right to obtain the Plans, Design Drawings, Cost Estimates and all notes and correspondence related to the Design-Builder’s work up until the time of cancellation, upon payment of Design-Builder’s costs and expenses up until that time. Compensation for Design-

Builder’s work will not include any anticipated costs or profits anticipated by Design-Builder during or as a result of Phase 2 of this Project.

1.4.2 If the parties are unable to reach an agreement on Design-Builder’s modified Contract Price, if such is proposed, for Phase 2 under Section 1.3 within the time limit for acceptance specified in the Schedule, as may be extended by the mutual agreement of the parties, then the proposed

Contract Price shall be deemed withdrawn and of no effect. In such event, Owner and Design-

Builder shall meet and confer as to how the Project will proceed, with Owner having the following options:

1. Owner may declare Phase 1 Services completed and authorize Design-Builder to continue to advance the final design of the Project as an extension of Phase 1 or as an Additional Service, as applicable; or

2. Owner may terminate the relationship with Design-Builder and proceed to exercise its available options to perform the final design and construction with parties other than Design-

Builder.

1.4.3 If Owner fails to exercise either of its options under Section 1.4.2 in a reasonable period of time, Design-Builder may give written notice to Owner that it considers this Agreement completed. If

Owner fails to exercise either of the options under Section 1.4.2 within ten (10) business days of receipt of Design-Builder’s notice, then this Agreement shall be deemed completed.

1.4.4 If Owner terminates the relationship with Design-Builder under Section 1.4.2.2, or if this

Agreement is deemed completed under Section 1.4.3, Design-Builder shall have no further claim for any work done without the written authorization of Owner prior to termination, and shall have no claim for any lost profits or other benefits that might have been derived from the construction project.

1.5 Completion. Once Design-Builder has received a Notice to Proceed with Phase 2, Design-

Builder shall perform all design and construction services, and provide all material, equipment, tools, labor, manuals, start-up, commissioning and testing services for the Project necessary to complete the Work described in and reasonably inferable from the Contract Documents, including Section 2 of Exhibit A (Scope of Work).

DESIGN-BUILD AGREEMENT PAGE 3

Article 2.0 Contract Documents

2.1 Contract Documents. The Contract Documents are comprised of the following:

1. All written modifications, amendments and change orders to this Agreement issued in accordance with Exhibit D, General Conditions

2. This Agreement, including Exhibits A-F;

3. The General Conditions (GC) set forth as Exhibit D to this Agreement

4. Performance and Payment Bonds, Exhibit E;

5. Written Supplementary Conditions to the General Conditions, Exhibit F;

6. Owner’s Request for Proposal, Exhibit G;

7. Construction Documents prepared and reviewed in accordance with GC 2.4;

8. The Design Builder’s Proposal, including all Attachments.

Article 3.0 Interpretation and Intent

3.1 Contract Documents. The Contract Documents are intended to permit the parties to complete the Work and all obligations required by the Contract Documents within the Contract Time(s) for the Phase 1 Compensation and the agreed Contract Price for Phase 2 Services. The Contract

Documents are intended to be complementary and interpreted in harmony so as to avoid conflict, with words and phrases interpreted in a manner consistent with construction and design industry standards. In the event of any inconsistency, conflict, or ambiguity between or among the

Contract Documents, the Contract Documents shall take precedence in the order in which they are listed in Section 2.1 hereof.

3.2 Meanings. Terms, words and phrases used in the Contract Documents, including this

Agreement, shall have the meanings given them in GC 1.2.

3.3 Entire Agreement. The Contract Documents form the entire agreement between Owner and

Design-Builder and by incorporation herein are as fully binding on the parties as if repeated herein in their entirety. No oral representations or other agreements have been made by the parties except as specifically stated in the Contract Documents.

Article 4.0 Ownership of Work Product

4.1 Work Product. All drawings, specifications and other documents and electronic data furnished by Design-Builder to Owner under this Agreement (“Work Product”) are deemed to be work for hire and Owner shall retain the ownership and property interests therein, including the copyrights thereto.

4.2 Owner’s Rights upon Payment in Full. Upon Owner’s payment in full for the Work performed in each Phase under the Contract Documents, Design-Builder shall provide a finished set of Plans representing the entirety of the work done during that Phase. Owner shall have complete control and ownership of all Work Product. Design-Builder may not use or display any element of the

Work Product, without prior approval of Owner, and such approval shall not allow Design-

Builder to reveal the location of any element of the Project.

4.3 Owner’s Limited License upon Owner’s Termination for Convenience or Design-Builder’s

Election to Terminate. If Owner terminates the Project for its convenience as set forth in GC

9.2 (“Termination for Convenience”), or if Design-Builder elects to terminate this Agreement in accordance with GC 9.5 (“Design-Builder’s Right to Terminate for Cause”), Design-Builder

DESIGN-BUILD AGREEMENT PAGE 4

shall, upon Owner’s payment in full of the amounts due Design-Builder under the Contract

Documents provide Owner with all Work Products conditioned on the following:

1. Use of the Work Product is at Owner’s sole risk without liability or legal exposure to Design-

Builder or anyone working for or through Design-Builder, including Design Consultants of any tier (collectively the “Indemnified Parties”).

2. If Owner elects the “off ramp” option provided in Section 1.4 of this Agreement and retains any of the Design-Builder’s design subconsultants, then the risk, liability and legal exposure with respect to Work Product shall be as set forth in the agreement or agreements between

Owner and such design subconsultant or subconsultants.

4.4 Owner’s Limited License upon Design-Builder’s Default. If this Agreement is terminated due to Design-Builder’s default pursuant to GC 9.3 (“Owner’s Right to Perform and Terminate for

Cause”) and (i) it is determined that Design-Builder was in default, and (ii) Owner has fully satisfied all of its obligations under the Contract Documents, then Design-Builder shall grant

Owner a limited license to use the Work Product in connection with Owner’s completion, use and occupancy of the Project. This limited license is conditioned on Owner’s express understanding that its use of the Work Product is at Owner’s sole risk and without liability or legal exposure to any Indemnified Party.

4.5 Owner’s Indemnification for Use of Work Product. Owner recognizes that, in the event of an early termination of the Work, whether for convenience or for cause, Design-Builder will not have the opportunity to finish or to finalize its Work Product. Therefore, if Owner uses the Work

Product under Sections 4.3 or 4.4 in whole or in part, Owner agrees to defend, indemnify and hold harmless the Indemnified Parties from and against any and all claims, damages, liabilities, losses and expenses, including attorneys’ fees, arising out of or resulting from Owner’s use of the

Work Product, to the fullest extent permitted by applicable law, subject to the limitations of the

Oregon Constitution and the Oregon Tort Claims Act.

Article 5.0 Contract Time

5.1 Dates of Commencement.

5.1.1 Design-Builder’s Phase 1 Services shall commence within ten (10) days of Design-Builder’s receipt of Owner’s Phase 1 Notice to Proceed unless the parties mutually agree otherwise in writing.

5.1.2 The Phase 2 Services shall commence on the date within ten (10) days of Design-Builder’s receipt of Owner’s Phase 2 Notice to Proceed (“Date of Commencement”) unless the parties mutually agree otherwise in writing.

5.2 Substantial Completion and Final Completion

5.2.1 Substantial Completion of the entire Work shall be achieved in accordance with the Schedule negotiated by the Parties at the time of the completion of Phase 1.

5.2.2 Final Completion of the Work or identified portions of the Work shall be achieved by [agreed upon date].

5.2.3 All of the dates set forth in this Article 5.0 shall be subject to adjustment in accordance with the

General Conditions.

DESIGN-BUILD AGREEMENT PAGE 5

5.3 Time is of the Essence. Owner and Design-Builder mutually agree that time is of the essence with respect to the dates and times set forth in the Contract Documents. Owner agrees to provide all site access, materials, information, data, and approvals required under the Contract Documents in a timely manner, as required for Design-Builder to achieve the interim milestones of the

Schedule and the Scheduled Substantial Completion Date.

5.4 Liquidated Damages. Design-Builder understands that if Substantial Completion is not achieved by the Scheduled Substantial Completion Date (as it may be extended hereunder), Owner will suffer damages which are difficult to determine and accurately specify. Design-Builder agrees that if Substantial Completion is not achieved by [date] (the “LD Date”), Design-Builder shall pay Owner One Hundred Dollars ($100) as liquidated damages for each day that Substantial

Completion extends beyond the LD Date. The liquidated damages provided herein shall be in lieu of all liability for any and all extra costs, losses, expenses, claims, penalties and any other damages, whether special or consequential, and of whatsoever nature incurred by Owner which are occasioned by any delay in achieving Substantial Completion. No Liquidated Damages shall be assessed in the event that Owner takes early beneficial occupancy of the Facility or makes partial use thereof for operating or commercial purposes before Substantial Completion is achieved.

Article 6.0 Compensation and Contract Price

6.1 Phase 1 Compensation. For the Phase 1 Services, Owner shall pay Design-Builder compensation in accordance with Section 1, Phase 1, of Exhibit B, Compensation.

6.2 Phase 2 Contract Price. For the Phase 2 Services, Owner shall pay Design-Builder in accordance with Section 2, Phase 2, of Exhibit B, Compensation, an agreed Contract Price, subject to adjustments made in accordance with Section 1.2 of this Agreement and with the

General Conditions.

Article 7.0 Procedure for Payment

7.1 Payment for Phase 1 Services

7.1.1 Owner shall compensate Design-Builder monthly for Phase 1 Services performed under the

Agreement for the work performed during the monthly period up to and not exceeding the compensation limit set forth in Section 1, Phase 1, of Exhibit B, Compensation.

7.1.2 Owner shall pay Design-Builder for Phase 1 Services within thirty (30) days after Owner’s receipt of each properly submitted and accurate Application for Payment in accordance with the provisions of GC 5.1 (“Payment for Phase 1 Services”) and 5.4 (“Withholding of Payments”).

7.2 Progress Payments for Phase 2 Services

7.2.1 Design-Builder shall submit to Owner on or before the tenth (10th) day of each month, beginning with the first month after the Date of Commencement, Design-Builder’s Application for Payment in accordance with GC 5.3 (“Monthly Progress Payments for Phase 2 Services”).

7.2.2 Owner shall make payment within thirty (30) days after Owner’s receipt of each properly submitted and accurate Application for Payment in accordance with GC 5.3, but in each case less the total of payments previously made, and less any amounts properly withheld under GC 5.4

(“Withholding of Payments”) and Section 7.3 below (“Retainage on Progress Payments”).

DESIGN-BUILD AGREEMENT PAGE 6

7.2.3 If Design-Builder’s Fee is a fixed amount, the amount of Design-Builder’s Fee to be included in

Design-Builder’s monthly Application for Payment and paid by Owner shall be proportional to the percentage of the Work completed, less payments previously made on account of Design-

Builder’s Fee.

7.3 Retainage on Progress Payments

7.3.1 Owner will retain five percent (5%) of each Application and may reduce or eliminate that amount, in Owner’s sole discretion, as outlined in Port Public Contracting Rule 137-049-0820.

7.3.2 Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work, pursuant to GC 5.7 (“Substantial Completion”), 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 or other withholdings pursuant to GC 5.4.

7.4 Final Payment. Design-Builder shall submit its Final Application for Payment to Owner in accordance with GC 5.8 (“Final Payment”). Owner shall make payment on Design-Builder’s properly submitted and accurate Final Application for Payment within ten (10) business days after Owner’s receipt of the Final Application for Payment, provided that Design-Builder has satisfied the requirements for final payment set forth in GC 5.8.2.

7.5 Interest. Payments due and unpaid by Owner to Design-Builder, whether progress payments or final payment, shall bear daily interest commencing five (5) days after payment is due at the rate equivalent to two percent (2%) per annum, or the maximum rate permitted by applicable law, whichever is less, which Owner shall pay upon presentation of an invoice therefor.

7.6 Record Keeping and Financial Controls. Design-Builder acknowledges that this Agreement is to be administered on an “open book” arrangement relative to Costs of the Work, including the development and agreement upon the Contract Price for Phase 2 Services; provided that if Owner and Design-Builder convert to or agree to a lump sum form of compensation for the Phase 2

Contract Price (“Fixed Contract Price”), then the provisions of this Section 7.6 shall not apply to such Fixed Contract Price and any adjustments made on a lump sum basis. Design-Builder shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management, using accounting and control systems in accordance with generally accepted accounting principles, and in such accounts as may be necessary for Owner’s utility accounting purposes. During the performance of the Work and for a period of three (3) years after Final Payment, Owner and Owner’s accountants shall be afforded access from time to time, upon reasonable notice, to Design-Builder’s records, books, correspondence, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to the Work, all of which Design-Builder shall preserve for a period of three (3) years after Final Payment, provided, however, that such access, review, and audit rights shall not extend to any compensation amounts established on the basis of fixed rates for overhead or fee, or an agreed fixed sum, or unit rates for any element of cost.

DESIGN-BUILD AGREEMENT PAGE 7

Article 8.0 Representatives of the Parties

8.1 Owner’s Representatives

8.1.1 Owner designates the individual listed below as its Senior Representative (“Owner’s Senior

Representative”), which individual has the authority and responsibility for avoiding and resolving disputes under GC 8.2.3: NAME TITLE CONTACT INFO.

8.2 Design-Builder’s Representatives

8.2.1 Design-Builder designates the individual listed below as its Senior Representative (“Design-

Builder’s Senior Representative”), which individual has the authority and responsibility for avoiding and resolving disputes under GC 8.2.3: NAME TITLE CONTACT INFO.

8.2.2 Design-Builder designates the individual listed below as its Design-Builder’s Representative, which individual has the authority and responsibility set forth in GC 2.1.1: NAME TITLE

CONTACT INFO.

Article 9.0 Indemnity, Insurance, and Bonds

9.1 Indemnity. To the fullest extent permitted by law, Design-Builder shall defend, indemnify and hold Owner harmless from all claims by third parties for bodily injury and property damage

(other than to the Work itself and other property insured hereunder) that may arise from the performance of the Work. Design-Builder shall not be required to defend, indemnify or hold harmless Owner for any acts, omissions or negligence of Owner, Owner’s employees, agents or separate contractors.

9.2 Design Builder’s Insurance.

9.2.1 Design-Builder shall obtain and maintain insurance coverage for the following claims which may arise out of the performance of this Agreement, whether resulting from Design-

Builder’s operations or by the operations of any Subcontractor, anyone in the employ of any of them, or by an individual or entity for whose acts they may be liable:

1. Commercial General Liability Insurance

a. Each Occurrence Limit $ 2,000,000

b. General Aggregate $ 4,000,000

c. Products/Completed Operations Aggregate $ 2,000,000

d. Personal and Advertising Injury Limit $ 2,000,000

e. Contractual Liability $ 2,000,000

2. Commercial Automobile Liability Insurance

a. Combined Single Limit

Bodily Injury and

Property Damage $ 2,000,000

Each Occurrence or

b. Bodily Injury $ 2,000,000

Each Person

$ 2,000,000

Each Occurrence

c. Property Damage $ 2,000,000

DESIGN-BUILD AGREEMENT PAGE 8

Each Occurrence

d. Workers’ Compensation and employer’s liability insurance per ORS

Chapter 656. The employer’s liability limit shall not be less than

$2,000,000 per occurrence

Owner shall be an Additional Insured on Commercial General Liability insurance and the

Commercial Automobile Liability insurance obtained by Design-Builder pursuant to this clause.

Excess Liability Insurance above the required Commercial General, Commercial Automobile, and Employer’s Liability insurance in the additional amount of $2,000,000 annual aggregate limit.

9.2.2 The policies shall contain a provision that coverage will not be canceled or not renewed until at least thirty (30) days' prior written notice has been given to Owner. Certificates of insurance showing required coverage to be in force shall be filed with Owner prior to commencement of the Work.

9.2.3 Products and Completed Operations insurance shall be maintained for a minimum period of at least two year(s) after either ninety (90) days following the date of Substantial

Completion or final payment, whichever is earlier.

9.2.4 The insurance limits stated in this Section 9.2.1 may be satisfied through a combination of underlying and excess or umbrella coverage.

9.2.5 Subcontractors. Design-Builder shall require that all Subcontractors working on the

Project secure and maintain the same insurance coverages required for Design-Builder for workers’ compensation insurance, employer’s liability insurance, commercial automotive liability insurance and commercial general liability insurance and other financial sureties required by applicable law in connection with their presence and the performance of their duties pursuant to this Agreement; provided that Owner may approve lower limits for specific subcontractors pursuant to a request submitted by

Design-Builder to Owner prior to any work being performed by the subcontractor.

Design-Builder shall require that all subcontractors performing engineering services and all subcontractors performing work with potential pollution liability risk secure and maintain Professional Liability or Pollution Liability insurance coverage, respectively, with such coverage limits commensurate with the scope of the subcontract work performed. Owner, Design-Builder and all other parties required of Design-Builder shall be named as additional insured on subcontractor’s required commercial general liability insurance policy. Alternatively, Design-Builder may obtain and maintain said policies and sureties on the subcontractor’s behalf.

9.3 Professional Liability Insurance

Professional liability insurance for claims arising from the negligent performance of professional services under this Agreement shall be written for $2,000,000 per claim and in the annual aggregate with a deductible not to exceed $1,000,000. These requirements shall be continued in effect for two year(s) after the date of Substantial Completion. If the Design-Builder retains consultants for a portion of the design, Owner may approve lower limits for specific Design

Consultants pursuant to a request submitted by Design-Builder to Owner prior to any work being performed by such Design Consultants.

DESIGN-BUILD AGREEMENT PAGE 9

9.4 Owner’s Liability Insurance

9.4.1 Owner shall be responsible for obtaining and maintaining its own liability insurance.

Insurance for claims arising out of the performance of this Agreement may be purchased and maintained at Owner’s discretion.

9.4.2 If Owner hires separate contractors with respect to the Project or for any portion of the

Work, then Owner shall require that such separate contractors waive any insurers’ rights of subrogation against the Design-Builder and its Subcontractors, Design Consultants, and their officers, directors, and employees.

9.5 Waiver of Subrogation

9.5.1 Owner and Design-Builder waive all rights against each other, and any of their respective employees, agents, consultants, subcontractors and sub-subcontractors for damages caused by risks covered by insurance provided pursuant to this Section 9.5 to the extent they are covered by that insurance. Design-Builder shall require similar waivers from all

Subcontractors, and shall require each of them to include similar waivers in their sub-subcontracts and consulting agreements.

9.5.2 If the policies of insurance referred to in this Section require an endorsement to provide for continued coverage where there is a waiver of subrogation, the owners of such policies will cause them to be so endorsed.

9.6 Bonding.

9.6.1 Design-Builder will provide Performance and Payment Bonds for the Phase 2 Services.

The costs of such bonds shall be part of the Contract Price.

9.6.2 Design-Builder shall furnish Performance and Payment Bonds, each in an amount equal to the Contract Price, as security for the faithful performance of all Design-Builder’s contractual obligations hereunder with respect to both design and construction of the

Project, and as security for payment of all Design-Builder’s obligations to furnish, provide and pay for Construction and related materials under the Contract Documents.

9.6.3 These Bonds shall remain in effect after the date of Substantial Completion at least until expiration of the warranty period, except as provided otherwise by Laws or Regulations or by the Contract Documents.

9.6.4 All Bonds shall be in the form attached as Exhibit E, except as provided otherwise by

Laws or Regulations, and shall be executed by such sureties as are named in the current list of “Companies Holding Certificates of Authority as Acceptable Sureties on Federal

Bonds and as Acceptable Reinsuring Companies” as published in Circular 570 (amended) by the Audit Staff, Bureau of Government Financial Operations, U.S. Treasury

Department. All Bonds signed by an agent must be accompanied by a certified copy of such agent’s authority to act.

9.6.5 Licensed Sureties. All Bonds required by the Contract Documents to be purchased and maintained by Design-Builder shall be obtained from surety companies that are duly

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licensed or authorized to issue bonds in the jurisdiction in which the Project is located to issue Bonds for the limits and coverages so required.

Article 10.0 Other Provisions

10.1 Other provisions, if any, may be added by the parties upon mutual agreement as amendments.

Article 11.0 Limitations of Liability

11.1 Time Limitation. Any cause of action, suit, proceeding, demand or other claim, shall be deemed waived unless made by Owner in writing and received by Design-Builder within time limitations set forth in applicable law.

11.2 Full Effect. All waivers of and limitations of liability contained in this Agreement shall apply whether such liability is claimed to arise in contract, tort (including but not limited to negligence), breach of warranty, breach of contract, strict liability, or otherwise. This Condition takes precedence over any conflicting article or provision of this Agreement or any document incorporated into it or referred to by it.

In executing this Agreement, Owner and Design-Builder each individually represents that it has the necessary financial resources to fulfill its obligations under this Agreement, and each has the necessary corporate approvals to execute this Agreement, and perform the services described herein.

OWNER: DESIGN-BUILDER:

Port of Port Orford NAME

(Signature) (Signature)

Name, Title Name, Title

Date Date

DESIGN-BUILD AGREEMENT PAGE 11

EXHIBIT A

SCOPE OF WORK

SECTION 1 PHASE 1

1.0 Design-Builder shall exercise reasonable skill and judgment in the furnishing of design services.

Architectural and engineering services shall be furnished by licensed employees of Design-

Builder, or by consultants or subcontractors as permitted by the law of the state where the Project is located. Design-Builder is responsible for the following Preliminary Design-Build Services:

1.1 Preliminary Evaluation. Design-Builder shall meet with Owner’s Representative, after which

Design-Builder shall provide a preliminary evaluation of the Project’s feasibility based on the

Owner’s Program and other relevant information.

1.2 Preliminary Schedule. Design-Builder shall provide a preliminary schedule for Owner’s written approval. The schedule shall show the activities of Owner and Design-Builder necessary to meet

Owner’s completion requirements.

1.3 Preliminary Estimate. Design-Builder shall prepare for Owner’s written approval a preliminary estimate utilizing area, volume, or similar conceptual estimating techniques. The level of detail for the estimate shall reflect the Owner’s Program and any additional available information. If the preliminary estimate exceeds Owner’s budget, Design-Builder shall make written recommendations to Owner.

1.4 Preliminary Design Documents. Design-Builder shall submit for Owner’s written approval

Preliminary Design Documents, based on the Owner’s Program and other relevant information.

Preliminary Design Documents shall include drawings, outline specifications and other conceptual documents as further defined herein illustrating the Project's basic elements, scale and their relationship to the proposed route. One set of these Documents shall be furnished to Owner.

Design-Builder shall update the preliminary schedule and preliminary estimate based on the

Preliminary Design Documents.

1.5 Division of Responsibility. Design-Builder shall prepare for Owner’s review a proposed

Division of Responsibility with respect to the Project, showing (a) equipment, materials, labor, and services to be provided by Design-Builder, (b) access, equipment, materials, data, information, and approvals to be provided by Owner, and (c) any items necessary for the Project to be provided by third parties.

1.6 Contract Price Proposal. Based on the Preliminary Design-Build Services, Design-Builder shall prepare for Owner’s consideration a proposed Contract Price for the Phase 2 Services.

1.7 Additional Services. Design-Builder shall provide the following additional services, if any:

None at this time.

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SECTION 2 PHASE 2

2.1 Completion of Design

2.1.1 Drawings and Specifications

Design-Builder shall submit for Owner’s review and written comment Drawings and

Specifications based on the Contract Documents and the Preliminary Design Documents prepared under Phase 1 and any further development of Contract Documents that have been approved in writing by Owner. The Drawings and Specifications shall set forth in detail the requirements for construction of the Work, and shall be based upon codes, laws or regulations enacted at the time of their preparation, provided, however, that if such codes, law, or regulations have changed between the date on which Design-Builder submitted its proposed Contract Price and the date of preparation, then Design-Builder shall be entitled to an equitable adjustment in the compensation and/or the Schedule. When submitted, the Drawings must contain the stamp or other certification that the Drawings have been prepared and/or reviewed and approved by a professional engineer, licensed in the state of Oregon. Construction shall be in accordance with these approved

Drawings and Specifications. One set of these documents shall be furnished to Owner prior to commencement of construction. Design-Builder shall submit a final request for payment for the design work no earlier than the submission of the final design to Owner.

2.2 Construction Services

2.2.1 Notice to Proceed. Following Owner’s written acceptance of Drawings and Specifications under

Paragraph 2.1.1 above, Design-Builder will commence the performance of Construction Services.

2.2.2 Completion. In order to complete the Work, Design-Builder shall provide all necessary construction supervision, inspection, construction equipment, labor, materials, tools, and subcontracted items.

2.2.3 Compliance. Design-Builder shall give all notices and comply with all laws and ordinances legally enacted at the date of execution of the Agreement which govern the proper performance of the Work.

2.2.4 Schedule. Design-Builder shall prepare and submit a Schedule of Work in the form of a revised

Schedule, for Owner’s written approval. This Schedule shall indicate the dates for the start and completion of the various stages of the construction including the dates when information and approvals are required from Owner. It shall be revised as required by the conditions of the Work.

The Schedule of Work shall be the basis for Design-Builder’s management and control of the project and its reporting of progress to Owner.

2.2.5 Permits. Design-Builder shall obtain permits and governmental approvals as provided in GC 2.6.

2.2.6 Safety and Hazardous Conditions. Design-Builder shall take necessary precautions for the safety of its employees on the Project, and shall comply with all applicable provisions of federal, state and municipal safety laws to prevent accidents or injury to persons on, about or adjacent to the Site. Design-Builder, directly or through its Subcontractors, shall erect and properly maintain at all times, as required by the conditions and progress of the Work, necessary safeguards for the protection of workers and the public. However, Design-Builder shall not be responsible for the elimination or abatement of any pre-existing Hazardous Materials at the site or any safety hazards created or otherwise resulting from work at the Site carried on by Owner or its employees, agents, separate contractors or tenants. Owner agrees to cause its employees, agents, separate

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contractors, and tenants to abide by and fully adhere to all applicable provisions of federal, state and municipal safety laws and regulations. The above provision shall not relieve Subcontractors of their responsibility for the safety of persons or property in the performance of their work, nor for compliance with all applicable provisions of relevant laws.

2.2.7 Reports. As provided in GC 2.1.2, Design-Builder shall provide monthly written reports to

Owner on the progress of the Work. Unless changed, under the Guaranteed Maximum Price, such monthly reports shall include a system of cost reporting for the Work, and also including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes in the Work. If the form of compensation is a stipulated sum, the progress reporting will address progress and payment against an agreed upon schedule of values established prior to the commencement of Phase 2 of the work by the Design-Builder.

2.2.8 Site Maintenance. At all times Design-Builder shall maintain the Site of the Work free from debris and waste materials resulting from the Work. At the completion of the Work, Design-

Builder shall remove from the premises all construction equipment, tools, surplus materials, waste materials and debris.

2.3 Hazardous Material

2.3.1 A Hazardous Material is any substance or material identified now or in the future as hazardous under any federal, state or local law or regulation, or any other substance or material which may be considered hazardous or otherwise subject to statutory or regulatory requirements governing handling, disposal and/or clean-up. Design-Builder shall not be obligated to commence or continue Work until any known or suspected Hazardous Material discovered at the Site has been removed, rendered or determined to be harmless by Owner as certified by an independent testing laboratory and approved by the appropriate government agency.

2.3.2 If after the commencement of the Work, known or suspected Hazardous Material or Hazardous

Conditions are discovered at the Site, Owner and Design-Builder shall proceed in accordance with the requirements of GC 4.1 (“Hazardous Conditions & Differing Site Conditions”).

2.4 Patents & Copyright

2.4.1 Design-Builder shall pay all royalties and license fees which may be due on the inclusion of any patented or copyrighted materials, methods or systems selected by Design-Builder and incorporated in the Work. Design-Builder agrees to defend, indemnify and hold Owner harmless from all suits or claims for infringement of any patent rights or copyrights arising out of such selection.

2.4.2 Owner shall pay all royalties and license fees which may be due on the inclusion of any patented or copyrighted materials, methods or systems selected by Owner or otherwise directed by Owner to be incorporated in the Work. Owner agrees to defend, indemnify and hold Design-Builder harmless from any suits or claims of infringement of any patent rights or copyrights arising out of any such patented or copyrighted materials, methods or systems specified by Owner.

2.5 Warranties and Completion

2.5.1 Design-Builder’s warranty to Owner with respect to construction, including all materials and equipment furnished as part of the construction, shall be as specified in GC 2.9 (“Construction

Warranty”).

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2.5.2 Design-Builder’s warranty to Owner with respect to the performance of the Facility upon completion shall be as specified in GC 2.11 (“Performance Warranty”).

2.5.3 Design-Builder shall secure required certificates of inspection, testing or approval and deliver them to Owner.

2.5.4 Design-Builder shall collect all written warranties and equipment manuals and deliver them to

Owner.

2.5.5 Design-Builder shall direct the final inspection and testing of Facility installed. Substantial

Completion shall not be achieved until Facility repairs meet Owner’s desired standards, as specified in the RFP.

2.6 Additional Services. Design-Builder shall provide or procure the following Additional Services upon the request of Owner unless such services are specifically included in the Owner’s Program or in an Exhibit to this Agreement. A written agreement between Owner and Design-Builder shall define the extent of such Additional Services and compensation therefor.

2.7 Subcontractors. Work not performed by Design-Builder with its own forces shall be performed by Subcontractors. The provisions of this Agreement and the associated Contract Documents shall be incorporated into all major subcontracts for construction.

2.7.1 Retaining Subcontractors. Design-Builder shall not retain any Subcontractor to whom Owner has a reasonable and timely objection, provided that Owner agrees to compensate Design-Builder for any additional costs incurred by Design-Builder as provided in GC 2.7.3. Design-Builder shall not be required to retain any Subcontractor to whom Design-Builder has a reasonable objection.

2.7.2 Management of Subcontractors. Design-Builder shall be responsible for the management of

Subcontractors in the performance of their work.

2.7.3 Assignment of Subcontract Agreements. Design-Builder shall provide for assignment of subcontract agreements in the event that Owner terminates this Agreement for cause as provided in GC 9.3 (“Owner’s Right to Perform and Terminate for Cause”). Following such termination, Owner shall notify in writing those subcontractors whose assignments will be accepted, subject to the rights of sureties.

SECTION 3 OWNER’S RESPONSIBILITIES

3.1 Information and Services Provided by Owner

3.1.1 Owner shall provide full information regarding requirements for the Project in accordance with

GC 3.2 and this Section 3.1, including the Owner’s Program, Facility Performance Criteria and other relevant information, within the times specified in the Schedule to be developed by Design-

Builder and Owner at the outset of the Project and revise thereafter.

3.1.2 Unless otherwise provided in the Contract Documents, Owner shall provide any necessary approvals for work done, including any land use review, easements and assessments, necessary permits, fees and charges required for the major repairs to the Facility.

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3.1.3 Design-Builder shall be entitled to rely on the completeness and accuracy of the information and services required by this Section 3.1.

3.2 Owner’s Responsibilities during Phase 1

3.2.1 If not developed by Owner and Design-Builder under a prior agreement, Owner shall provide the

Owner’s Program at the inception of the Design Phase. Owner shall review and timely approve schedules, estimates, and design documents furnished during the Design Phase as set forth in

Section 3.1.

3.2.2 Owner shall arrange for access to and make all provisions for Design-Builder to enter upon public and private property as required for Design-Builder to perform Phase 1 services hereunder.

3.2.3 Design-Builder shall be entitled to rely on the completeness and accuracy of the information and documents to be provided by Owner under this Section 3.2.

3.3 Owner’s Responsibilities during Phase 2 Design and Construction

3.3.1 Owner shall review and approve the Schedule as set forth in the Exhibit C, Schedule, as revised.

3.3.2 If Owner becomes aware of any error, omission or failure to meet the requirements of the

Contract Documents or any fault or defect in the Work, Owner shall give written notice to

Design-Builder within five (5) days of so becoming aware.

3.3.3 Unless otherwise agreed by Design-Builder, Owner shall communicate with Design-Builder’s

Subcontractors, Suppliers, and Design Consultants only through Design-Builder. Owner shall have no contractual obligations to Subcontractors or Suppliers or Design Consultants.

3.3.4 Owner may provide insurance for the Project as provided in Agreement Section 9.2.

3.3.5 Owner shall provide timely, clear and adequate access to Port property.

3.3.6 Owner shall provide all equipment, materials, information, data, and approvals required for

Design-Builder’s performance of the Work in a timely and complete manner.

3.3.7 Design-Builder shall be entitled to rely on the completeness and accuracy of the information and documents to be provided by Owner under this Section 3.3.

3.4 Owner’s Representative

Owner’s representative, designated in writing and agreed to by Design-Builder:

1. Shall be fully acquainted with the Project;

2. Agrees to furnish the information and services required of Owner when required so as not to delay the performance of the Work; and

3. Shall have authority to bind Owner in all matters requiring Owner’s approval, authorization or written notice.

If Owner changes its representative or the representative’s authority as listed above, Owner shall notify Design-Builder in advance in writing. Design-Builder shall have the right to approve any successor representative.

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EXHIBIT B

COMPENSATION

SECTION 1 PHASE 1 SERVICES

Guaranteed maximum price of $_________, representing the total of the following services:

Phase 1 - DESIGN

1.1 Design LUMP SUM $_________

1.2 Project Planning LUMP SUM $_________

1.3 Professional Liability Insurance LUMP SUM $_________

1.4 Special Project Insurance Omitted from project.

1.5 Bonds LUMP SUM $_________

SECTION 2 CONTRACT PRICE FOR PHASE 2 SERVICES

1.0 Choice of Compensation Method for Phase 2 Services

1.1 The parties have elected to use the Guaranteed Maximum Price (“GMP”) form of compensation, not a stipulated sum (lump sum) form of compensation.

2.0 Guaranteed Maximum Price (“GMP”)

2.1 Use of a GMP for Phase 2 Work

2.1.1 Design-Builder has offered a Guaranteed Maximum Price for construction of $500,000 for the

Phase 2 Services. This GMP does not include the cost of any permits that must be obtained, and which will be reimbursed by the Owner. Design-Builder does not guarantee any specific line item provided as part of the GMP (unless otherwise provided), but agrees that it will be responsible for paying all costs of completing the Work which exceed the GMP, as adjusted in accordance with the Contract Documents. Documents used as a basis for the GMP shall be found in Exhibit F.

2.1.2 Omitted

2.1.3 If the parties so agree, the Phase 2 Services may be divided into separate work packages or task orders, and Design-Builder shall propose and Owner shall consider for acceptance a separate

GMP for each such work package or task order.

2.2 GMP Established at the Commencement Date of Phase 2

2.2.1 GMP Proposal. Design-Builder has submitted, and by its selection of Design-Builder instead of other Proposers, Owner has accepted the proposed GMP. In the event that, as outlined in Section

1.2 of the Agreement, Design-Builder feels that the elements that formed the basis of the

Proposed GMP are no longer valid due to a substantial modification in the preliminary design found in Owner’s Request for Proposals, Design-Builder shall submit to Owner a revised GMP Proposal for the Contract Price as part of the Phase 1 Services which shall include the following, unless the parties mutually agree otherwise:

1. A proposed GMP, which shall be the sum of:

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i. Design-Builder’s Fee as defined in Section 2, Phase 2, of Exhibit B, Compensation; and

ii. The estimated Cost of the Work as defined in Section 2, Phase 2, of Exhibit B, Compensation, inclusive of any Design-Builder’s Contingency as defined in Section 1.1.2 above and any allowances and unit prices.

2. A list of the drawings and specifications, including all addenda, used as the basis for the

GMP proposal;

3. A list of the assumptions, exceptions, and clarifications made by Design-Builder in the preparation of the GMP Proposal, which list is intended to supplement the information contained in the drawings and specifications;

4. The Scheduled Substantial Completion Date upon which the proposed GMP is based, to the extent said date has not already been established under Paragraph 5.2.1 of the Agreement, and a schedule upon which the Scheduled Substantial Completion Date is based;

5. If applicable, a list of allowances and a statement of their basis;

6. If applicable, a schedule of alternate prices;

7. If applicable, a schedule of unit prices;

8. If applicable, a statement of Additional Services; and

9. The time limit for acceptance of the GMP Proposal.

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

2.2.3 Acceptance of GMP Proposal. If Owner accepts the revised GMP Proposal, as may it be amended by Design-Builder, the GMP and its basis shall be set forth in an amendment to this

Agreement.

2.2.4 Failure to Accept the GMP Proposed Modification. If Owner rejects the revised GMP

Proposal, or fails to notify Design-Builder in writing on or before the date specified in the GMP

Proposal that it accepts the revised GMP Proposal, the proposed revision to the GMP Proposal shall be deemed withdrawn and of no effect. In such event, Owner and Design-Builder shall meet and confer as to how the Project will proceed, with Owner having the following options:

1. Owner may suggest modifications to the revised GMP Proposal, whereupon, if such modifications are accepted in writing by Design-Builder, the GMP Proposal shall be deemed accepted and the parties shall proceed in accordance with Section 2.2.3 above;

2. Owner may authorize Design-Builder to continue to proceed with the Work on the basis of reimbursement as provided in Section 2, Phase 2, of Exhibit B, Compensation; or

3. Owner may terminate this Agreement for convenience in accordance with GC 9.2

(“Termination for Convenience”).

If Owner fails to exercise any of the above options, Design-Builder shall have the right to

(i) continue with the Work as if Owner had elected to proceed in accordance with Item .2 above, and be paid by Owner accordingly, unless and until Owner notifies it in writing to stop the Work, or (ii) suspend performance of Work in accordance with GC 9.4 (“Design-Builder’s Right to Stop

Work”).

2.2.5 Conversion. The parties may agree at any time to convert the agreed GMP to a Fixed Contract

Price utilizing a stipulated sum for the completion of the Phase 2 Services.

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2.3 Savings. In the event that the parties continue with, or revise the GMP, any resultant savings shall accrue to Owner.

2.4 Basis. Documents used as a basis for the revised GMP shall be identified in a…