Design

REQUEST FOR PROPOSAL FOR DESIGN - BUILD SERVICES FOR Vernon Board of Education Pedestrian Ramp and Retaining Wall Project 2024 Vernon Board of Education –Pedestrian Ramp and Retaining Wall– Design Build RFP 2 of 9 The intent of this RFP is to request Design Build Firms to provide preliminary Design and Cost Estimates for a new pedestrian ramp and new retaining wall at 30 Park ST, Vernon, CT, 06066. The Vernon Board of Education is soliciting bids for a design-build of a new ADA compliant pedestrian ramp to connect the Central office parking lot to the main access door at 30 Park Street. The scope of work will include the repair and installation of an existing retaining wall for the Central Office parking lot, as well as the demolition and removal of the existing ramp. Additional detailed information about the project, site location, and existing conditions will be discussed and provided to attendees at the mandatory walkthrough. The schedule for this Design Build RFP process is as

follows: RFP out to Design Build Contractors: RFP out to Bid , April 8, 2024 RFP site visit (mandatory) , April 15, 2024, 9:00 am Questions Due by , April 22, 2024, 3:00 pm Addendum Out to Bidders , April 29, 2024, COB RFP Responses Due , May 13, 2024 @ 10:00 AM EST RFP Response Review (estimated timeline): Proposal Review and Comparison . May 15, 2024 Interviews for short listed responders . May 17, 2024 (times TBD) Tentative Final Decision by , May 24, 2024 Anticipated Project Start Date: Summer 2024 Vernon Board of Education –Pedestrian Ramp and Retaining Wall– Design Build RFP 3 of 9 It shall be the bidder’s responsibility to become familiar with the information provided within and/or attached to this RFP, and to identify any questionable factors in question format via the process described in this RFP. Duties shall include, but not be limited to: A. Pre-construction 1. Review existing site and existing building conditions and identify required scope to execute the design and construction. 2. Provide budget estimates through major design phases 3. Develop a schedule / phasing plan 4. Provide value engineering services 5. Identify and recommend options for long lead items in order to deliver the project on schedule 6. Attend required meetings 7. Work with Vernon Board of Education to develop a full set of construction documents for the project approach selected from your initial proposal. B. Construction 1. Develop and maintain a master schedule, safety reports and logs. 2. Hold weekly project meetings with subcontractors, architect / engineer and be responsible for taking and distributing detailed notes. 3. Prepare and issue subcontractor bid information 4. Produce written field reports on status and progress and submit to Vernon Board of Education. 5. Control costs and issue reports, payment requisitions, and lien waivers 6. Obtain all applicable permits 7. Issue punch list and oversee resolution C. Project Close-out 1. Upon project completion, provide Vernon Board of Education with one complete set of as built documentation. 2. Provide the Vernon Board of Education with a closeout package with all manuals, warrantees, etc. 3. Provide the Vernon Board of Education a copy of all inspections, permits, affidavits, etc. within 24 hours of receipt. Vernon Board of Education –Pedestrian Ramp and Retaining Wall– Design Build RFP 4 of 9 III. GENERAL PROVISIONS A. Bid Due Date and Requirements All proposals are due by May 13,th 2024 at 10:00 AM EST. There is a mandatory site visit on April 15, 2024 at 9:00 AM at 30 Park Street, Vernon, CT. Three (3) hard copies and one (1) electronic copy on a USB drive of the proposal should be submitted in a sealed envelope marked “BID DOCUMENT – VERNON BOARD OF EDUCATION Pedestrian Ramp and Retaining Wall - DO NOT OPEN” clearly marked on the outside of the envelope to: William Meier III, Director of Business and Finance, Town of Vernon Board of Education, BUSINESS OFFICE, 30 Park Street, Vernon, Connecticut 06066 no later than 10:00 AM EST, May 13, 2024. Emailed, faxed or late bids will not be accepted. Received bids will be opened publicly in person on/at 10:00 AM EST, May 13, 2024; 3rd Floor, 30 Park Street, Vernon, Connecticut 06066. Bid results will be posted on the Vernon Board of Education website. The selected firm must meet all municipal, state and federal AA and EEO practices and requirements. MBE’s, WBE’s, SBE’s are encouraged to apply. Confidentiality- If Respondent believes that any information in its proposal should be treated as confidential that material shall be clearly marked. The Vernon Board of Education shall endeavor to protect confidential material from disclosure to non-BOE employees to the extent permitted by State or Federal law. In no event will the BOE be responsible for the inadvertent disclosure of your response to this sealed bid. AFFIRMATIVE ACTION: The Contractor shall comply with Connecticut General Statutes §§ 4a-60, 4a-60a, 4a-60g, and 46a-68b through 46a-68f, inclusive, as amended. An Affirmative Action Plan shall be filed with and approved by the Commission on Human Rights and Opportunities prior to the commencement of construction. A minimum of twenty five percent (25%) of the contract award shall be to subcontractors holding current certification from the Connecticut Department of Administrative Services (hereafter “DAS”) under the provisions of Connecticut General Statutes §4a-60g, as amended. A minimum of twenty five percent (25%) of the contract award shall be with DAS certified Small and Minority owned businesses, and a minimum of twenty five percent (25%) of that work or portion of the contract award shall be with DAS certified Minority, Women and/or Disabled owned businesses. The Contractor shall demonstrate a good faith effort to meet the 25% set aside goals. The Contractor shall file a written or electronic non-discrimination certification with the Commission on Human Rights and Opportunities. Forms can be found at http://www.ct.gov/opm/cwp/view.asp?a=2982&q=390928&opmNav_GID=1806 The set aside requirements are for the total contract award, not simply the portion funded by the State of Connecticut. http://www.ct.gov/opm/cwp/view.asp?a=2982&q=390928&opmNav_GID=1806 Vernon Board of Education –Pedestrian Ramp and Retaining Wall– Design Build RFP 5 of 9 Tax Exemption: The VPS is tax exempt and will provide appropriate documentation as needed. Bidders are expected to comply with Federal Regulations: Appendix II to Part 200- Contract Provisions for Non-Federal Entity Contracts Under Federal Awards; and Federal and State requirements for Solid Waste Disposal and recycled materials. Collusion Among Bidders: Multiple proposals from an individual, firm, partnership, corporation or association under the same or different names are subject to rejection by the Procurement Administrator. Reasonable grounds for believing that a bidder is interested in more than one proposal for the work contemplated may result in rejection of all bids in which the bidder is interested. Any or all proposals will be rejected if there is any reason for believing that collusion exists among the bidders. Participants in such collusion may not be considered in future solicitations for the same work. Each bidder, by submitting a bid, certifies that it is not a party to any collusive action. Non-Discrimination of Employment: VPS actively subscribes to a policy of equal employment opportunity and will not discriminate against any employee or applicant because of race, sex, age, color, physical or mental handicap, marital status, sexual affiliation, religion, nation origin or political affiliation. Bidders shall not discriminate in any manner against any employee because of race, sex, age, color, physical or mental handicap, marital status, sexual affiliation, religion, national origin or political affiliation. Non-Conflict of Interest Statement: It is unlawful for any officer, employee or agent of VPS to participate personally in his/her official capacity through decision, approval, disapproval, recommendation, advice or investigation in any contract or other matter in which he/she, his/her spouse, parent, minor child, brother or sister, has a financial interest, or to which any firm, corporation, association, or other organization in which he/she has a financial interest, or in which he/she is serving as an officer, director, trustee, partner, or employee, or agent. The successful bidder agrees that during the term of the Contract and for twenty four (24) months following the exit conference, the successful bidder, its employees, agents, and representatives, shall not, with or without compensation, on behalf of the successful bidder, or another person, entity, or corporation, take any action in connection or receive any benefit with any specific matter, finding or recommendation associated in any way with this project, except with the express written consent of VPS Bidders should make themselves available for interviews on May 17, 2024, at times to be determined, to review their bid packages. B. Selection Date It is expected that the vendor selection will be made in late May 2024 to continue through the process of Design Development and Design Build. Vernon Board of Education –Pedestrian Ramp and Retaining Wall– Design Build RFP 6 of 9 C. Bid Rejection The Board reserves the right to reject any or all proposals in whole or part, to award any one service or group of services or all services, to negotiate with any or all companies submitting proposals, and to enter into an agreement with any company for any services mentioned in this RFP; if it is deemed to be in the best interest of the Board. D. Bid Modification Modification of quotes will be considered only if notice is given in writing prior to the time stated for submittal of bids. E. Insurance Upon award, the successful bidder will be required to provide a current certificate of insurance naming required certificate holder and additional insureds, including the Town of Vernon and Vernon Public Schools. The Town of Vernon reserves the right to require the vendor to carry specific limits that will be provided at a later date. F. Questions Questions must be received no later than the date specified below. All questions will be answered via emailed addendum to all bidders. Questions must be directed by email to: Mark Rizzo, Supervisor of Facilities & Special Projects, Vernon Public Schools, mrizzo@vernon-ct.gov. Question due date: Questions must be received on or before April 22, 2024 at 3:00 pm EST, and will be answered by Addendum no later than the close of business on April 29, 2024. G. Confidentiality All information contained herein is confidential and shall be treated as such. The selected vendor may be required to sign a client confidentiality and non-disclosure statement before starting work on the project. H. Governing Law It shall be understood and agreed that any and all articles and/or equipment furnished or contract awarded on this proposal shall comply fully with all Local, State, and Federal laws and regulations. The contract shall be governed by the laws of the State of Connecticut and the Town of Vernon and Vernon Public Schools. The contract and other operating documents shall be based on The DBIA’s “Standard Form of Agreement between Owner and Design-Builder – Cost Plus Fee with Option for Guaranteed Maximum Price” (see attached template). I. Contract & Billing The contract will be entered into directly between The Vernon Board of Education and the selected Design Builder. The Vernon Board of Education must approve completion mailto:mrizzo@vernon-ct.gov Vernon Board of Education –Pedestrian Ramp and Retaining Wall– Design Build RFP 7 of 9 of each phase and all vendors used by the bidder including subcontractors, engineers, and consultants. The attached DBIA contracts are for illustrative purposes. IV. BID SUBMISSION CRITERIA A. Design Documents 1. Provide Schematic Design Documents with Front and Side Elevation, and Site Plan. 2. Provide a written narrative of architectural materials (exterior), structural foundations and framing systems, proposed plumbing, drainage, and building tie in. B. Team, Approach and Experience 1. Describe how you intend to coordinate this project including anticipated meetings, and provide the names, positions, and brief background of your proposed project management team. Include an organization chart that shows the names of your proposed Project Manager and Superintendent. 2. List team members who will be producing the design and construction documents, i.e. Architect, MEP Engineer, Structural Engineer. 3. Describe how you will coordinate your trade contractor work such as delivery of materials, labor, etc. and how the impact to the school’s operation will be minimized. 4. Provide a list of similar completed Design Build, including location, square footage, construction cost, schedule, and the names & contact information of those clients. 5. Describe your approach to reporting and control of costs. 6. List any value-added services your D-B team brings to the project. 7. List any litigation your firm or any of its principals may have been involved with in the past five years, and list that litigation’s status and /or result. 8. Include the annual dollar volume of construction work your firm has performed over the past two years. 9. Indicate your limits of insurance, bonding capacity and related expenses, and include a separate cost for obtaining a Builders All Risk policy for the project. C. Cost Proposal 1. Complete and return the attached Design Build Project Bid Form and General Conditions Form. The BID FORM must be completed and signed by an officer of your company for your firm’s proposal to be considered. 2. Generate an overall schedule that indicates when the project will be started and when it will reach substantial completion. Vernon Board of Education –Pedestrian Ramp and Retaining Wall– Design Build RFP 8 of 9 BID FORM VERNON PUBLIC SCHOOLS Design Build for New Pedestrian Ramp and Retaining Wall Total estimated cost of Construction: Approximately $ Note: This cost is to be basis of GMP and as such should be all inclusive of any and all aspects of the DB project. Schedule: 1. Preconstruction: # of Months from Referendum/start date. Months 2. Construction: # of Months from end of Preconstruction. Months Design Fee: Pre-construction Services: General Conditions (% of Actual Total Cost of Construction): Fee (% of Actual Total Cost of Construction) Change Orders (General conditions) Change Order (Fee) Length of General Conditions (in weeks) Weekly Cost for Additional Pre-construction Services Per Week Weekly Cost for Additional General Conditions Per Week Company Name: Date: Company Officer: Title: $ % % % % $ $ $ Vernon Board of Education –Pedestrian Ramp and Retaining Wall– Design Build RFP 9 of 9 Design Build Contractor General Conditions Form INSTRUCTIONS: 1) Each Row Must Be Completed 2) Mark with an X if Owner Supplied or Excluded 3) Fill in $ Value if Included in General Conditions 4) Mark N/A if Not Applicable to This Project Description Owner Supplied Included in General Conditions Excluded costs determined by Project Personnel Related Expenses Project Executive Project Manager Asst. Project Manager Safety Officer Site Superintendent Engineering & Testing Baseline Layout Field Office Expenses Trailer (If needed) Cleanup Field Dumpster Final Clean - Interior Insurance Employer’s Liability Workers Compensation Comprehensive Gen. Liability Builder’s Risk Project Closeout Punchlist Record Drawings & O&M Manuals Warranties Permits Demolition Permit Fire Dept. Permits Building Permits & Fees Bonding Fees TOTAL COST GENERAL CONDTIONS $ Standard Form of Agreement Between Owner and Design- Builder – Cost Plus Fee with an Option for a Guaranteed Maximum Price Document No. 530 Third Edition, 2022 © Design-Build Institute of America Washington, D.C. DBIA Contract Document #530 SAMPLE ATTACHMENT A Design-Build Institute of America - Contract Documents LICENSE AGREEMENT By using the DBIA Contract Documents, you agree to and are bound by the terms of this License Agreement. 1. License. The Design-Build Institute of America (“DBIA”) provides DBIA Contract Documents and licenses their use worldwide. You acknowledge that DBIA Contract Documents are protected by the copyright laws of the United States. You have a limited nonexclusive license to: (a) Use DBIA Contract Documents on any number of machines owned, leased or rented by your company or organization; (b) Use DBIA Contract Documents in printed form for bona fide contract purposes; and (c) Copy DBIA Contract Documents into any machine-readable or printed form for backup or modification purposes in support of your permitted use. 2. User Responsibility. You assume sole responsibility for the selection of specific documents or portions thereof to achieve your intended results, and for the installation, use, and results obtained from the DBIA Contract Documents. 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Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. 8. Acknowledgement. You acknowledge that you have read this agreement, understand it and agree to be bound by its terms and conditions and that it will be governed by the laws of the District of Columbia. You further agree that it is the complete and exclusive statement of your agreement with DBIA which supersedes any proposal or prior agreement, oral or written, and any other communications between the parties relating to the subject matter of this agreement. SAMPLE DBIA Document No. 530 Page 1 © 2022 Design-Build Institute of America INSTRUCTIONS For DBIA Document No. 530 Standard Form of Agreement Between Owner and Design-Builder – Cost Plus Fee with an Option for a Guaranteed Maximum Price (2022 Edition) Checklist Use this Checklist to ensure that the Agreement is fully completed and all exhibits are attached. Page 1 Owner’s name, address and form of business Page 1 Design-Builder’s name, address and form of business Page 1 Project name and address Section 2.1.3 Identify other exhibits to the Agreement _______ Section 4.2 Note the optional provisions that are provided Section 4.3.2 Complete blanks for additional sum for use of Work Product Section 5.2.1 Complete blanks for calendar days and note the optional language that is provided Section 5.2.2 Insert any interim milestones (optional) Section 5.4 Complete blanks for liquidated damages and note the optional provisions that are provided _______ Section 5.5 If the parties select the option provided they have to insert an amount Section 5.6 Complete blanks for early completion bonus and note the optional provision that is provided _______ Section 5.7 Note the optional provisions that are provided Section 6.1.2 Insert basis for pricing preliminary services (optional) Section 6.2.1 Choose basis for Fee and complete blanks Section 6.2.2 Insert financial arrangements for adjustments and note optional provisions Section 6.3.3 Complete blanks for markup; insert or attach personnel names, etc. _______ Section 6.3.4 Note the optional provision that is provided _______ Section 6.4.4 Note the optional provision that is provided Section 6.6.1.1 Complete blanks for GMP, and note the optional provision that is provided Section 6.6.1.2 Complete blanks for Design-Builder’s Contingency Section 6.6.3.1 Choose method for sharing savings; complete blanks _______ Section 6.7.1 Note optional provision Section 7.1.1 Complete blanks for day of month Section 7.2.1 Complete blanks for retention percentage and note optional provision _______ Section 7.2.2 Note the optional provision that is provided Section 7.4 Complete blanks for interest rate Section 8.1.1 Choose overhead/profit method for termination for convenience Section 8.2.1 Complete blanks for percentages Section 8.2.2 Complete blanks for percentages Section 9.1.1 Insert Owner’s Senior Representative’s name, etc. (optional) Section 9.1.2 Insert Owner’s Representative’s name, etc. (optional) Section 9.2.1 Insert Design-Builder’s Senior Representative’s name, etc. (optional) Section 9.2.2 Insert Design-Builder’s Representative’s name, etc. (optional) Section 10.1 Attach Insurance Exhibit Section 10.2 Insert amount and conditions of bonds or other security and note the options that are provided Section 11.1 Insert any other provisions (optional) Last Page Owner’s and Design-Builder’s execution of the Agreement SAMPLE DBIA Document No. 530 Page 2 © 2022 Design-Build Institute of America General Instructions No. Subject Instruction 1. Standard Forms Standard form contracts have long served an important function in the United States and international construction markets. The common purpose of these forms is to provide an economical and convenient way for parties to contract for design and construction services. As standard forms gain acceptance and are used with increased frequency, parties are able to enter into contracts with greater certainty as to their rights and responsibilities. 2. DBIA Standard Form Contract Documents Since its formation in 1993, the Design-Build Institute of America (“DBIA”) has regularly evaluated the needs of owners, design-builders and other parties to the design-build process in preparation for developing its own contract forms. Consistent with DBIA’s mission of promulgating best design-build practices, DBIA believes that the design-build contract should reflect a balanced approach to risk that considers the legitimate interests of all parties to the design-build process. DBIA’s Standard Form Contract Documents reflect a modern risk allocation approach, allocating each risk to the party best equipped to manage and minimize that risk, with the goal of promoting best design-build practices. 3. Use of Non-DBIA Documents To avoid inconsistencies among documents used for the same project, DBIA’s Standard Form Contract Documents should not be used in conjunction with non-DBIA documents unless the non-DBIA documents are appropriately modified on the advice of legal counsel. Moreover, care should also be taken when using different editions of the DBIA Standard Form Documents on the same project to ensure consistency. 4. Legal Consequences DBIA Standard Form Contract Documents are legally binding contracts with important legal consequences. Contracting parties are advised and encouraged to seek legal counsel in completing or modifying these Documents. 5. Reproduction DBIA hereby grants to purchasers a limited license to reproduce its Documents consistent with the License Agreement accompanying these Documents. At least two original versions of the Agreement should be signed by the parties. Any other reproduction of DBIA Documents is strictly prohibited. 6. Modifications Effective contracting is accomplished when the parties give specific thought to their contracting goals and then tailor the contract to meet the unique needs of the project and the design-build team. For that reason, these Documents may require modification for various purposes including, for example, to comply with local codes and laws or to add special terms. DBIA’s latest revisions to its Documents provide the parties an opportunity to customize their contractual relationship by selecting various optional contract clauses that may better reflect the unique needs and risks associated with the project. At no time should a document be re-typed in its entirety. Re-creating the document violates copyright laws and destroys one of the advantages of standard forms – familiarity with the terms. 7. Execution It is good practice to execute two original copies of the Agreement. Only persons authorized to sign for the contracting parties may execute the Agreement. SAMPLE DBIA Document No. 530 Page 3 © 2022 Design-Build Institute of America Specific Instructions Section Title Instruction General Purpose of This Agreement DBIA Document No. 530 (“Agreement”) should be used when the parties intend that Owner pay Design-Builder the Cost of the Work plus a Fee, with or without a Guaranteed Maximum Price (“GMP”). If there is uncertainty about Owner’s Project Criteria, or the Project Criteria remain to be developed by Owner and Design-Builder together, a cost-plus/GMP contracting approach is desirable. If there is certainty as to Owner’s Project Criteria, a lump sum fixed price for the completion of all design and construction services may be suitable, especially when Owner procures Design-Builder’s services by competitive means. In such case, DBIA Document No. 525 should be used. General Purpose of These Instructions These Instructions are not part of this Agreement, but are provided to aid the parties in their understanding of the Agreement and in completing the Agreement. General Related Documents This Agreement shall be used in conjunction with the General Conditions of Contract. Other related Contract Documents are listed in Article 2 of this Agreement. General Date On Page 1, enter the date when both parties reach a final understanding. It is possible, due to logistical reasons, that the dates when the parties execute the Agreement may be different. Once both parties execute the Agreement, the effective date of the Agreement will be the date recorded on Page 1. This date does not, however, determine Contract Time, which is measured according to the terms of Article 5. General Parties: Owner and Design-Builder On Page 1, enter the legal name and full address of Owner and Design-Builder, as well as the legal form of each entity, e.g., corporation, partnership, limited partnership, limited liability company or other. 2.1.2 GMP Exhibit, GMP Proposal If a GMP is established upon execution of this Agreement, the GMP Exhibit must be attached pursuant to Section 6.6.1.1. If a GMP is established after execution of this Agreement, the GMP Proposal must be attached pursuant to Section 6.6.2. Both the GMP Exhibit and GMP Proposal will include those Basis of Design Documents Design- Builder uses as the basis for its GMP. 2.1.5 Construction Documents After execution of the Agreement, and consistent with the requirements of Section 2.4 of the General Conditions of Contract, Design-Builder will prepare Construction Documents, subject to Owner’s review and approval. 3.2 Order of Precedence The Contract Documents are listed in Section 2.1 in the order of their precedence. The GMP Exhibit and GMP Proposal are based on the Basis of Design Documents, which are comprised of various documents. The parties should strongly consider establishing the priority of the various documents comprising the GMP Exhibit or GMP Proposal to avoid disputes should discrepancies arise among the documents. Moreover, Section 2.1.3 recognizes that there may be other exhibits attached to this Agreement. If this is the case, the parties should discuss whether these exhibits should be part of the Basis of Design Documents. If these exhibits are not made part of the Basis of Design Documents, these exhibits will not take priority over the Basis of Design Documents in the event of a conflict. 3.3 Definitions Terms, words and phrases used in the Agreement shall have the same meanings used in the General Conditions of Contract. 3.4 Design Specifications Owner is cautioned that if the Project Criteria include design specifications there is case law holding that Design-Builder is entitled to rely on such information, and to the extent such information is not accurate, Design-Builder will be entitled to an adjustment in the Contract Price and/or Contract Time. Accordingly, to avoid such potential liability, Owner should consider using performance specifications. SAMPLE DBIA Document No. 530 Page 4 © 2022 Design-Build Institute of America 4.1 Work Product This Agreement provides that Design-Builder shall retain ownership of the Work Product it produces, but obligates Design-Builder to grant a limited license to Owner to use the Work Product according to the terms and circumstances described in Sections 4.2, 4.3, 4.4 and 4.5. 4.2 Owner’s Limited License Upon Payment in Full Design-Builder shall grant Owner, at Owner’s sole risk, a limited license to use the Work Product at the completion of the Work in connection with Owner’s occupation of the Project. This Section also provides the parties with the option of transferring ownership of some or all of the Work Product to Owner upon payment in full for all Work performed. Generally, where Owner desires ownership of Work Product, it is sufficient to transfer ownership of unique architectural and design elements. 4.3 Owner’s Limited License Upon Owner’s Termination for Convenience or Design-Builder’s Election to Terminate Owner should not use the Termination for Convenience Clause to obtain Design- Builder’s valuable design concepts, and then seek bids from other design-builders. Therefore, where Owner terminates this Agreement for its convenience, and then decides to complete the Project with its own or third-party forces, Design-Builder shall grant Owner the rights set forth in Section 4.2, provided Owner pays Design-Builder all amounts due Design-Builder as required by the Contract Documents, including paying Design-Builder an additional sum per Section 4.3.2 for the use of the Work Product. In the event Design-Builder elects to terminate this Agreement for cause, for reasons set forth in Section 11.4 of the General Conditions of Contract, these same conditions apply to Owner’s use of the Work Product. 4.3.2 Additional Compensation To minimize disputes, the parties should negotiate prior to the execution of the Agreement the amount Owner shall pay Design-Builder for the use of Design-Builder’s Work Product in the event Owner terminates this Agreement for its convenience or Design-Builder elects to terminate this Agreement for cause. Enter this amount. 4.4 Owner’s Limited License Upon Design-Builder’s Default If Design-Builder is properly terminated for default, Owner is granted a limited license to use the Work Product to complete the Project, and Owner shall thereafter have the same rights and obligations as set forth in Section 4.2. 4.5 Owner’s Indemnification for Use of Work Product Owner’s use or alteration of the Work Product shall be at its sole risk, and Owner must agree to defend, indemnify and hold harmless Design-Builder and anyone working by or through Design-Builder, including Design Consultants of any tier. 5.1 Date of Commencement Design-Builder’s obligation to commence work is triggered by its receipt of a Notice to Proceed unless the parties mutually agree otherwise. 5.2.1 Substantial Completion of the Entire Work Enter the calendar days duration by which Substantial Completion has to be achieved. The parties in this Section have the option of modifying the definition of Substantial Completion set forth in the General Conditions of Contract if they want to use a Temporary Certificate of Occupancy as the benchmark. If this option is selected, Substantial Completion will be deemed to be achieved no later than the date a Temporary Certificate of Occupancy is issued, if applicable to the Project. 5.2.2 Interim Milestones It may be that some portions of the Work must be completed in phases or within a prescribed period of time to accommodate Owner’s needs. The parties may, at their option, identify these portions of the Work to be completed prior to Substantial Completion of the entire Work. Enter the number of the calendar days, starting from the Date of Commencement, for achieving Substantial Completion of these identified portions of the Work. If these portions of the Work are required to be substantially completed by certain milestone dates, enter those dates. The form does not provide a remedy to Owner if an interim milestone is not met. If Owner has special requirements as it relates to interim milestones, Owner may want to consider a remedy for Design- Builder’s failure to meet an interim milestone, as well as providing a bonus to Design- Builder for satisfying such interim milestone. SAMPLE DBIA Document No. 530 Page 5 © 2022 Design-Build Institute of America 5.4 Liquidated Damages Owner should make a good faith evaluation of the amount that is reasonably necessary to compensate it for delay. Owner should not establish liquidated damages to penalize Design-Builder. Moreover, in the event a GMP is not established upon execution of the Agreement, it appears prudent for the parties to refrain from establishing liquidated damages until such time as the GMP is established. Section 5.4 establishes a grace period between the Scheduled Substantial Completion Date and the assessment of liquidated damages in order to prevent disputes as to which party bears responsibility for only a few days of delay. The parties should enter the calendar days that may pass following the Scheduled Substantial Completion Date before liquidated damages will be assessed. The parties are also provided the option of establishing liquidated damages if Design- Builder fails to achieve Final Completion within a specified number of days after Substantial Completion. If this option is selected, the parties must negotiate both the number of days and the liquidated damages amount. In negotiating liquidated damages, the parties should keep in mind that the amount of liquidated damages for failing to achieve Final Completion should be a considerably scaled down amount and should reflect the financial harm to Owner. In no case should the total amount of liquidated damages for the Project exceed an amount that is reasonably necessary to compensate Owner for Project delay. The parties also have the option here of eliminating liquidated damages altogether, in which case Owner can recover actual damages for Project delay at an amount that is capped by the parties. Owner is cautioned that it still cannot recover consequential damages, as they are waived under Section 10.5.1 of the General Conditions of Contract. 5.5 Liquidated Damages Cap The parties can agree to cap liquidated damages for delay at a negotiated amount. 5.6 Early Completion Bonus If the Project economics justify liquidated damages, then it may also be appropriate to couple these liquidated damages with an early completion bonus. The parties should enter the number of calendar days prior to the Scheduled Substantial Completion Date that will set the Bonus Date. Also, enter the amount of the bonus to be paid per day that will allow Owner to share with Design-Builder the economic benefits of early completion. Moreover, in the event a GMP is not established upon execution of the Agreement, it appears prudent for the parties to refrain from establishing an early completion bonus until such time as the GMP is established. The parties also have the option in Section 5.6 of capping the early completion bonus at a negotiated amount. 5.7 Compensation for Force Majeure Events The parties are provided the opportunity of providing Design-Builder the right to receive compensation for Force Majeure Events. By selecting this option, the parties agree to modify Section 8.2.2 of the General Conditions of Contract, in which case the parties have to negotiate how many cumulative days of Force Majeure delays must occur before Design-Builder is entitled to either a negotiated amount per day for delay or the direct costs it has incurred as a result of such delay. 6.1.2 Optional Pricing This Agreement allows the parties the flexibility to establish within the Contract Price a different payment basis for certain preliminary portions of the Work which may be necessary to permit Design-Builder to furnish Owner with a GMP. Alternatively, the parties may use DBIA Document No. 520 to perform certain preliminary design services prior to setting the GMP. Enter a description of any such services, the basis for determining the price, and the price to be paid. 6.2.1 Design-Builder’s Fee Enter the amount of Design-Builder’s Fee as a sum certain or as a percentage of the Cost of the Work. Design-Builder’s Fee shall be commensurate with the services it provides and the risk it assumes in providing single point responsibility to Owner. SAMPLE DBIA Document No. 530 Page 6 © 2022 Design-Build Institute of America 6.2.2 Adjustments to Design-Builder’s Fee For additive Change Orders, the parties have to negotiate the Fee Design-Builder will receive. For deductive Change Orders, the parties have the option by checking the appropriate box to signify whether there will be no additional reduction or whether there will be an additional reduction based on a negotiated percentage. 6.3.3 Wages for Design- Builder’s Employees at Principal or Branch Offices DBIA endorses reimbursing salaries and associated benefits of Design-Builder’s Project personnel, such as accountants, stationed at offices other than the field office, when to do so is more efficient and cost effective. Enter the percentage markup to be applied for Project-related overhead associated with such personnel. Insert, or attach as an exhibit, a list of such personnel and their job functions. 6.3.4 Employee Benefits It may be simpler for the parties to agree on a multiplier (rather than actual costs) to compensate Design-Builder for employee benefits. Accordingly, the parties may want to insert the multiplier to be applied to the wages and salaries of such reimbursable employees. 6.3.7 Costs for Defective/Non- Conforming Work The Cost of the Work shall include the costs to repair or correct defective or non- conforming Work (including warranty or corrective work performed after Substantial Completion) unless caused by Design-Builder’s negligence. DBIA believes that Design- Builder should not be penalized for inadvertent mistakes which are inevitable when designing and constructing a Project. To do so would encourage ultra-conservatism in every task, the ultimate cost of which would be greater than a proactive approach to performing the Work. 6.3.23 Warranty Escrow At this section, the parties are provided the opportunity to establish prior to Final Completion an escrow account in a negotiated amount to be used to reimburse Design- Builder for its costs incurred in performing warranty Work. If funds remain in the escrow account after the expiration of the warranty period, the funds are returned to Owner subject to Design-Builder’s share of any savings. Note that even if the escrow account is exhausted, if funds remain under the GMP, Owner is still obligated to reimburse Design-Builder for its warranty Work. 6.4.4 Allowance Value This section recognizes that the parties may agree that certain items of Work should be treated as an Allowance Item and priced based on Allowance Values. The Allowance Value for which Design-Builder will be entitled to receive compensation includes direct cost of labor, materials, equipment, transportation, taxes and insurance associated with the Allowance Item. All other costs associated with the Allowance Item, such as design fees, general conditions costs and fee, are deemed to be included in the Contract Price. However, by checking the box, the parties agree that in the event the actual cost of the Allowance Item is greater than or less than the Allowance Value by a negotiated percentage, then Design-Builder’s right to Fee and markup shall be determined pursuant to Section 6.2.2. 6.6 The Guaranteed Maximum Price This Agreement provides the parties flexibility in establishing the Contract Price. Parties can establish a GMP before or after entering into this Agreement, or elect to proceed on the basis of costs plus a fee, without a GMP. If a GMP method is elected, the GMP should not be established until the Basis of Design Documents are sufficiently defined to make the GMP realistic and meaningful. Setting it too early does not permit reasonable opportunity for scope definition and evaluation of Project risk. On the other hand, setting it too late may not achieve Owner’s objective of having an early price guarantee to enable it to make decisions relative to the Project. SAMPLE DBIA Document No. 530 Page 7 © 2022 Design-Build Institute of America 6.6.1.1 GMP at Agreement Execution Enter the GMP, if appropriate. Attach as an exhibit to this Agreement the Basis of Design Documents used to establish the GMP. These documents comprise the GMP Exhibit which shall become a Contract Document pursuant to Section 2.1.1 of the Agreement. Design-Builder does not guarantee any specific line item provided as part of the GMP. By selecting the alternate option, Design-Builder agrees to guarantee the line item in its GMP for general conditions costs only. Design-Builder agrees that it is responsible for paying general conditions costs in excess of this line item. Design-Builder does not guarantee any other line items in the GMP. 6.6.1.2 GMP Contingency Enter the amount of Design-Builder’s Contingency. The Contingency is for the exclusive use of Design-Builder and covers all unanticipated costs incurred that are not the basis of a Change Order. This section sets forth by way of example only the type of costs that would be funded out of the Contingency. Other costs, such as but not limited to any deductibles Design-Builder is obligated to pay, would be subject to reimbursement. Design-Builder is also required to provide Owner with a monthly status report accounting for the Contingency, including all reasonably foreseen uses and potential uses of the Contingency for the upcoming three months. While not provided for in the Contingency provision, DBIA recognizes that there may be situations where Owner will want to recapture the Contingency prior to Final Completion. For example, Owner may want to use amounts in the Contingency to fund changes to the Project. Owner’s desire has to be balanced against Design-Builder’s need to use the Contingency to fund unanticipated costs for which it is liable. Accordingly, balancing these competing concerns is usually accomplished by releasing some of the Contingency to Owner after Design-Builder has bought out the Subcontractors, providing that Design-Builder is not obligated to release Contingency amounts in excess of amounts identified for reasonably foreseen uses or potential uses of the Contingency. 6.6.2.1 GMP Proposal After Execution of This Agreement At the request of Owner, Design-Builder shall submit its GMP Proposal, which shall include the items listed in Sections 6.6.2.1.1 to 6.5.2.1.9. If the parties agree to additions or deletions from this list, modify this Section 6.6.2.1 appropriately. The Agreement provides the parties with flexibility as to when the GMP Proposal will be submitted after execution of the Agreement. Prior to execution of the Agreement the parties should discuss when Owner desires Design-Builder to submit its GMP Proposal. 6.6.2.1.4 Schedule Given that expedited delivery is one of the primary factors driving many owners to select the design-build method, DBIA strongly believes that the parties should discuss and understand what each party must do to support the Project schedule. The entire Work, both design and construction, should be scheduled. The schedule should indicate the dates for the start and completion of the various stages of the Work, including the date when Owner information and approvals are required, and any Owner-created constraints. The Agreement also provides flexibility to establish the Scheduled Substantial Completion Date prior to submission of the GMP Proposal. 6.6.2.3 Acceptance of GMP Proposal If Owner accepts the GMP Proposal, the parties should amend this Agreement to add the final GMP Proposal as a Contract Document pursuant to Section 2.1.2. 6.6.2.4 Failure to Accept the GMP Proposal This Agreement provides three options for Owner in the event it fails to accept the GMP Proposal and two choices for Design-Builder if Owner fails to exercise any of the three options. These options are specifically designed to prevent one party from receiving a windfall in the event the parties cannot agree on the GMP and the Agreement is terminated. The parties should take note that if Owner exercises its option to terminate for convenience, or Design-Builder suspends performance, Design-Builder will not be entitled to payment for uncompleted Work provided by Section 8.2. However, additional payment for Owner’s use of Work Product will be due Design-Builder pursuant to Section 4.3, if Owner proceeds to complete the Project using Design-Builder’s Work Product. SAMPLE DBIA Document No. 530 Page 8 © 2022 Design-Build Institute of America 6.6.3 Savings One of the benefits of a GMP approach is the possibility that with good management by Design-Builder and timely support from Owner the actual Cost of the Work and Fee may be less than the GMP. This creates a savings pool that should result in a benefit to both Design-Builder and Owner. Sharing these savings creates an incentive for Design- Builder to save costs. Some factors to consider in determining how the Savings are shared include the timing for the establishment of the GMP and the amount of Design- Builder’s Fee established under Section 6.2.1. 6.6.3.1 Savings Calculations This section provides that if the actual Cost of the Work and Design-Builder’s Fee is less than the GMP, as such GMP may have been adjusted, the savings, if any, shall be shared. The Agreement offers two choices for distributing Savings. Choose a method and enter the appropriate figures. 6.7 Performance Incentives In addition for the potential of Design-Builder to share in Savings as set forth in Section 6.6.3, there may be other performance incentives that will influence Project success. Such incentives may include award fees tied to Design-Builder achieving certain standards relative to client satisfaction, safety, and personnel retention. The parties are encouraged to discuss the use of such incentives during negotiation of this Agreement. Any agreement on the use of incentives should be set forth in an exhibit attached to this Agreement. 7.1.1 Progress Payments Enter the day of the month when Design-Builder shall submit its Application for Payment. 7.2.1 Retainage Enter the percentage Owner will retain from Progress Payments to Design-Builder until fifty percent (50%) of the Work is completed. Owner should recognize that it creates undue hardship to hold retainage on Subcontractors that have completed their work early in the Project. Owner should accordingly consider releasing retainage on Subcontractors that complete work early in the Project, providing that these Subcontractors have satisfactorily performed their portion of the Work. The parties are provided the option of modifying the retainage provision by checking the box. This option excludes from retainage Design-Builder’s General Conditions costs and amounts paid to Design-Builder’s Design Consultant. The rationale for selecting this option is that Design-Builder is obligated to pay its General Conditions costs in full each month and that under the design-bid-build delivery method, Owner typically does not retain sums from its Designer. 7.2.2 Release of Retainage This section requires Owner to release retainage to Design-Builder. If Design-Builder and Owner have established a warranty reserve in accordance with Section 6.3.2.4, the parties shall establish an escrow account at this time. 7.4 Interest The parties should enter the rate at which interest will accrue on Design-Builder’s payments if unpaid five (5) days after due. Late payment creates a hardship for Design- Builder, its Design Consultants and Subcontractors. 7.5 Record Keeping Owner is provided access to Design-Builder’s accounting information as it relates to Costs of the Work. However, if the parties have agreed to multipliers or markups, the time to challenge and negotiate those percentages is at the time the parties execute the Agreement and not during the Project or after it has been completed. Accordingly, Owner can at any time audit these percentages only to confirm that such percentage has been properly charged and not to challenge the composition of such percentage. 8.1.1 Termination for Convenience: Overhead and Profit The parties should choose prior to execution of the Agreement the method that will be used to determine overhead and profit paid to Design-Builder in the event Owner terminates Design-Builder for its convenience. The parties may choose to set percentage rates for overhead and profit prior to execution of the Agreement, or may choose to determine reasonable sums to be paid for overhead and profit at the time of the termination. If the parties choose to set overhead and profit rates prior to execution of the Agreement, the percentages should be entered in Section 8.1.1. SAMPLE DBIA Document No. 530 Page 9 © 2022 Design-Build Institute of America 8.2 Termination for Convenience: Additional Payments Although it is important for Owner to have a process for terminating this Agreement for convenience, the process must consider the interests of Design-Builder. If Owner terminates this Agreement for its own convenience, compensating Design-Builder for its costs will not be adequate because Design-Builder will have committed its resources for a small amount of revenue. Therefore, in addition to the overhead and profit paid in Section 8.1, Owner shall pay Design-Builder an additional sum, calculated as a percentage of the remaining balance of the Contract Price or, if a GMP has not been established, the remaining balance of the most recent estimated Contract Price. Enter the percentages Owner shall pay Design-Builder if Owner terminates this Agreement for its own convenience prior to or after the start of construction. 8.3 Termination for Convenience: Owner’s Use of Work Product Owner should not use the Termination for Convenience clause to obtain Design- Builder’s valuable design concepts and then seek lower bids from another design- builder. If Owner terminates this Agreement for its own convenience, and chooses to proceed with the Project using Design-Builder’s Work Product, Owner should pay an additional sum for the use of Design-Builder’s Work Product pursuant to Section 4.3. Article 9 Representatives of the Parties Enter the name, title, address and telephone number of Owner’s Senior Representative and Owner’s Representative at Sections 9.1.1 and 9.1.2, respectively. Enter the name, title, address and telephone number of Design-Builder’s Senior Representative and Design-Builder’s Representative at Sections 9.2.1 and 9.2.2, respectively. The parties can elect to establish these Representatives during the performance of the Project rather than at the time of execution of this Agreement. If Representatives are identified after execution of the Agreement, an appropriate amendment should be made to the Agreement at the time these individuals are designated. 10.1 Insurance Attach an Insurance Exhibit setting forth in detail the insurance coverages required for the Project. Parties are advised to familiarize themselves with the terms of Article 5 of the General Conditions of Contract, Insurance and Bonds, and to consult their insurance advisor. 10.2 Bonds Enter the type and amount of bonds or other performance security required for the Project. Where bonding is not required by statute, Owner may want to evaluate the project risks versus the bonding costs in deciding what type of performance security to require. 11.1 Other Provisions Insert any other provisions. For example, the parties may elect to have disputes resolved through litigation rather than arbitration in which case the optional language in this Section should be included. SAMPLE TABLE OF CONTENTS Article Name Page Article 1 Scope of Work ............................................................................................... 2 Article 2 Contract Documents ...................................................................................... 2 Article 3 Interpretation and Intent ................................................................................ 2 Article 4 Ownership of Work Product ........................................................................... 3 Article 5 Contract Time ................................................................................................ 4 Article 6 Contract Price ................................................................................................ 7 Article 7 Procedure for Payment................................................................................ 14 Article 8 Termination for Convenience ...................................................................... 15 Article 9 Representatives of the Parties .................................................................... 16 Article 10 Bonds and Insurance ................................................................................. 17 Article 11 Other Provisions ......................................................................................... 17 SAMPLE DBIA Document No. 530 Page 1 © 2022 Design-Build Institute of America Standard Form of Agreement Between Owner and Design-Builder – Cost Plus Fee with an Option for a Guaranteed Maximum Price This document has important legal consequences. Consultation with an attorney is recommended with respect to its completion or modification. This AGREEMENT is made as of the day of in the year of 20 , by and between the following parties, for services in connection with the Project identified below: OWNER: (Name and address) DESIGN-BUILDER: (Name and address) PROJECT: (Include Project name and location as it will appear in the Contract Documents) In consideration of the mutual covenants and obligations contained herein, Owner and Design-Builder agree as set forth herein. SAMPLE DBIA Document No. 530 Page 2 © 2022 Design-Build Institute of America Article 1 Scope of Work 1.1 Design-Builder shall perform all design and construction services, and provide all material, equipment, tools and labor, necessary to complete the Work described in and reasonably inferable from the Contract Documents. Article 2 Contract Documents 2.1 The Contract Documents are comprised of the following: 2.1.1 All written modifications, amendments, minor changes and Change Orders to this Agreement issued in accordance with DBIA Document No. 535, Standard Form of General Conditions of Contract Between Owner and Design-Builder (2022 Edition) (“General Conditions of Contract”); 2.1.2 The GMP Exhibit referenced in Section 6.6.1.1 herein or, if applicable, the GMP Proposal accepted by Owner in accordance with Section 6.6.2 herein; 2.1.3 This Agreement, including all exhibits (list, for example, performance standard requirements, performance incentive arrangements, markup exhibits, allowances, unit prices or exhibit detailing offsite reimbursable personnel) but excluding, if applicable, the GMP Exhibit; 2.1.4 The General Conditions of Contract; and 2.1.5 Construction Documents prepared and approved in accordance with Section 2.4 of the General Conditions of Contract. Article 3 Interpretation and Intent 3.1 Design-Builder and Owner, prior to execution of the Agreement (and again, if applicable, at the time of acceptance of the GMP Proposal by Owner in accordance with Section 6.6.2 hereof), shall carefully review all the Contract Documents, including the various documents comprising the Basis of Design Documents, for any conflicts or ambiguities. Design-Builder and Owner will discuss and resolve any identified conflicts or ambiguities prior to execution of the Agreement or, if applicable, prior to Owner’s acceptance of the GMP Proposal. 3.2 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 Contract Price. 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 inconsistencies, conflicts or ambiguities between or among the Contract Documents are discovered after execution of the Agreement, or if applicable, after Owner’s acceptance of the GMP Proposal, Design-Builder and Owner shall attempt to resolve any ambiguity, conflict or inconsistency informally, recognizing that the Contract Documents shall take precedence in the order in which they are listed in Section 2.1 hereof. (Note, the parties are strongly encouraged to establish in the GMP Exhibit or GMP Proposal (as applicable) the priority of the various documents comprising such exhibit or proposal.) SAMPLE DBIA Document No. 530 Page 3 © 2022 Design-Build Institute of America 3.3 Terms, words and phrases used in the Contract Documents, including this Agreement, shall have the meanings given them in the General Conditions of Contract. 3.4 If Owner’s Project Criteria contain design specifications: (a) Design-Builder shall be entitled to reasonably rely on the accuracy of the information represented in such design specifications and their compatibility with other information set forth in Owner’s Project Criteria, including any performance specifications; and (b) Design-Builder shall be entitled to an adjustment in the Contract Price and/or Contract Time(s) to the extent Design-Builder’s cost and/or time of performance have been adversely impacted by such inaccurate design specification. 3.5 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. No oral representations or other agreements have been made by the parties except as specifically stated in the Contract Documents. Article 4 Ownership of Work Product 4.1 Work Product. All drawings, specifications and other documents and electronic data, including such documents identified in the General Conditions of Contract, furnished by Design-Builder to Owner under this Agreement (“Work Product”) are deemed to be instruments of service and Design-Builder shall retain the ownership and property interests therein, including but not limited to any intellectual property rights, copyrights and/or patents, subject to the provisions set forth in Sections 4.2 through 4.5 below. 4.2 Owner’s Limited License upon Project Completion and Payment in Full to Design-Builder. Upon Owner’s payment in full for all Work performed under the Contract Documents, Design-Builder shall grant Owner a limited license to use the Work Product in connection with Owner’s occupancy of the Project, conditioned on Owner’s express understanding that its alteration of the Work Product without the involvement of Design-Builder is at Owner’s sole risk and without liability or legal exposure to Design- Builder or anyone working by or through Design-Builder, including Design Consultants of any tier (collectively the “Indemnified Parties”), and on Owner’s obligation to provide the indemnity set forth in Section 4.5 below. [At the parties’ option, the following may be used in lieu of Section 4.2.] Upon Owner’s payment in full for all Work performed under the Contract Documents, Design- Builder: (a) grants Owner a limited license to use the Work Product in connection with Owner’s occupancy of the Project; and (b) transfers all ownership and property interests, including but not limited to any intellectual property rights, copyrights and/or patents, in that portion of the Work Product that consists of architectural, engineering and other design elements and specifications that are unique to the Project. The parties shall specifically designate those portions of the Work Product for which ownership in the Work Product shall be transferred. Such grant and transfer are conditioned on Owner’s express understanding that its alteration of the Work Product without the involvement of Design-Builder is at Owner’s sole risk and without liability or legal exposure to Design-Builder or anyone working by or through Design-Builder, including Design Consultants of any tier (collectively the “Indemnified Parties”), and on Owner’s obligation to provide the indemnity set forth in Section 4.5 below. 4.3 Owner’s Limited License upon Owner’s Termination for Convenience or Design-Builder’s Election to Terminate. If Owner terminates this Agreement for its convenience as set forth in Article 8 hereof, or if Design-Builder elects to terminate this Agreement in accordance with Section 11.4 of the General Conditions of Contract, Design-Builder shall, upon Owner’s payment in full of the amounts due Design-Builder under the Contract Documents, grant Owner a limited license to use the Work Product to complete the Project and subsequently occupy the Project, and Owner shall thereafter have the same rights as set forth in Section 4.2 above, conditioned on the following: SAMPLE DBIA Document No. 530 Page 4 © 2022 Design-Build Institute of America 4.3.1 Use of the Work Product is at Owner’s sole risk without liability or legal exposure to any Indemnified Party, and on Owner’s obligation to provide the indemnity set forth in Section 4.5 below, and 4.3.2 Owner agrees to pay Design-Builder the additional sum of Dollars ($ ) as compensation for the right to use the Work Product to complete the Project and subsequently use the Work Product in accordance with Section 4.2 if Owner resumes the Project through its employees, agents, or third parties. 4.4 Owner’s Limited License upon Design-Builder's Default. If this Agreement is terminated due to Design-Builder's default pursuant to Section 11.2 of the General Conditions of Contract, then Design- Builder grants Owner a limited license to use the Work Product to complete the Project and subsequently occupy the Project, and Owner shall thereafter have the same rights and obligations as set forth in Section 4.2 above. Notwithstanding the preceding sentence, if it is ultimately determined that Design-Builder was not in default, Owner shall be deemed to have terminated the Agreement for convenience, and Design- Builder shall be entitled to the rights and remedies set forth in Section 4.3 above. 4.5 Owner’s Indemnification for Use of Work Product. If Owner is required to indemnify any Indemnified Parties based on the use or alteration of the Work Product under any of the circumstances identified in this Article 4, Owner shall defend, indemnify and hold harmless such Indemnified Parties from and against any and all claims, damages, liabilities, losses and expenses, including attorneys’ fees, arising out of or resulting from the use or alteration of the Work Product. Article 5 Contract Time 5.1 Date of Commencement. The Work shall commence within five (5) days of Design-Builder’s receipt of Owner’s 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 no later than ( ) calendar days after the Date of Commencement (“Scheduled Substantial Completion Date”). [At the parties’ option, the following supplemental language may be inserted at the end of Section 5.2.1 if the Project is subject to a Temporary Certificate of Occupancy.] The parties agree that the definition for Substantial Completion set forth in Section 1.2.18 of the General Conditions of Contract is hereby modified to read as follows: “Substantial Completion is the date on which the Work, or an agreed upon portion of the Work, is sufficiently complete in accordance with the Contract Documents so that Owner can occupy and use the Project or a portion thereof for its intended purposes, provided, however, that Substantial Completion shall be deemed to have been achieved no later than the date of issuance of a Temporary Certificate of Occupancy issued by the local building official.” 5.2.2 Interim milestones and/or Substantial Completion of identified portions of the Work (“Scheduled Interim Milestone Dates”) shall be achieved as follows: (Insert any interim milestones for portions of the Work with different scheduled dates for Substantial Completion.) SAMPLE DBIA Document No. 530 Page 5 © 2022 Design-Build Institute of America 5.2.3 Final Completion of the Work or identified portions of the Work shall be achieved as expeditiously as reasonably practicable. Final Completion is the date when all Work is complete pursuant to the definition of Final Completion set forth in Section 1.2.8 of the General Conditions of Contract. 5.2.4 All of the dates set forth in this Article 5 (collectively the “Contract Time(s)”) shall be subject to adjustment in accordance with the General Conditions of Contract. 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. 5.4 Liquidated Damages. Design-Builder understands that if Substantial Completion is not attained by the Scheduled Substantial Completion Date, Owner will suffer damages which are difficult to determine and accurately specify. Design-Builder agrees that if Substantial Completion is not attained by ( ) days after the Scheduled Substantial Completion Date (the “LD Date”), Design-Builder shall pay Owner Dollars ($ ) as liquidated damages for each day that Substantial Completion extends beyond the LD Date. (If a GMP is not established upon execution of this Agreement, the parties should consider setting liquidated damages after GMP negotiations.) [The parties may want to consider the following supplemental language within Section 5.4 if they want to assess liquidated damages for failing to meet Final Completion. In this case, the first sentence in Section 5.2.3 should be deleted and the language below should be checked and completed.] Design-Builder understands that if Final Completion is not achieved within days of the Substantial Completion Date, Owner will suffer damages which are difficult to determine and accurately specify. Design-Builder agrees that if Final Completion is not achieved within ( ) days of Substantial Completion, Design-Builder shall pay to Owner Dollars ($ ), as liquidated damages for each calendar day that Final Completion is delayed beyond the above-referenced number of days. [In lieu of the liquidated damages specified in Section 5.4 or the alternate provided herein, the Parties may decide that the Agreement will provide for actual damages in the event of Project delay, with Owner being cautioned that there is a waiver of consequential damages under Section 10.5.1 of the General Conditions of Contract. In this case, delete Sections 5.4 and 5.5 and insert the following.] 5.4 Design-Builder and Owner have agreed not to provide for liquidated damages in this Agreement for failure of Design-Builder to achieve the Contract Time(s) set forth in this Article 5. Design- Builder understands, however, that Owner may suffer actual damages in the event the Contract Time(s) set forth herein are not timely achieved. Owner shall be able to recover such actual damages from Design- Builder to the extent it can demonstrate that actual damages have been incurred, are directly related and caused by Design-Builder’s failure to meet the Contract Time(s) set forth herein, and are not waived by Section 10.5.1 of the General Conditions of Contract. Notwithstanding the foregoing, in no event shall Design-Builder’s liability for actual damages for delays exceed Dollars ($ ). 5.5 Any liquidated damages assessed pursuant to this Agreement 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 the Contract Time(s). [The Parties may also desire to cap the liquidated damages payable under this Agreement, in which case the following language should be included at the end of Section 5.5.] SAMPLE DBIA Document No. 530 Page 6 © 2022 Design-Build Institute of America Owner and Design-Builder agree that the maximum aggregate liability Design-Builder has for any liquidated damages that may be assessed under this Agreement for failure to achieve the Contract Time(s) shall be Dollars ($ ). 5.6 Early Completion Bonus. If Substantial Completion is attained on or before ( ) days before the Scheduled Substantial Completion Date (the “Bonus Date”), Owner shall pay Design-Builder at the time of Final Payment under Section 7.3 hereof an early completion bonus of Dollars ($ ) for each day that Substantial Completion is attained earlier than the Bonus Date. (If a GMP is not established upon execution of this Agreement, the parties should consider setting the early completion bonus after GMP negotiations. If an early completion bonus is applicable to any dates set forth in Section 5.2.2 or 5.2.3 hereof, this Section 5.6 will need to be modified accordingly.) [The Parties may also desire to cap the early completion bonus payable under Section 5.6, in which case the following language should be included.] Owner and Design-Builder agree that the maximum aggregate amount that Design-Builder shall receive as the early Completion Bonus is Dollars ($ ). 5.7 [The Parties may also desire to modify Article 8.2.2 of the General Conditions of Contract relative to compensability of delays that would cause the Contract Time(s) to be extended. In such case, the following option can be used.] In addition to Design-Builder’s right to a time extension for those events set forth in Section 8.2.1 of the General Conditions of Contract, Design-Builder shall also be entitled to an appropriate adjustment of the Contract Price for those events set forth in Section 8.2.1 of the General Conditions of Contract, provided, however, for Force Majeure Events, Design-Builder shall only be entitled to an increase in the Contract Price if said events exceed ( ) cumulative days. Said additional compensation shall be limited to: [Check one box only.] Dollars ($ ) a day for each day work is delayed beyond the Scheduled Substantial Completion Date. or the direct costs and expenses Design-Builder can demonstrate it has reasonably and actually incurred as a result of such event. 5.8 Owner’s Review Time. The parties have established the following maximum and minimum amount of time for Owner to review Design Submissions and the Project Schedule or any updates thereto unless the parties agree in writing otherwise. 5.8.1 Owner shall have a minimum of _____ days of receipt by Owner to review all Design Submissions, the Project Schedule and any updates thereto. 5.8.2 Owner shall review and (if applicable) provide a response to Design-Builder on all Design Submissions, the Project Schedule and any updates thereto within ____ days of receipt by Owner. SAMPLE DBIA Document No. 530 Page 7 © 2022 Design-Build Institute of America Article 6 Contract Price 6.1 Contract Price. 6.1.1 Owner shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract a contract price (“Contract Price”) equal to Design-Builder’s Fee (as defined in Section 6.2 hereof) plus the Cost of the Work (as defined in Section 6.3 hereof), subject to any GMP established in Section 6.6 hereof and any adjustments made in accordance with the General Conditions of Contract. 6.1.2 For the specific Work set forth below, Owner agrees to pay Design-Builder, as part of the Contract Price, on the following basis: (This is an optional section intended to provide the parties with flexibility to identify and price limited preliminary services, such as a lump sum or cost-plus arrangement for preliminary design, programming or services necessary to enable Design-Builder to furnish Owner with a GMP before execution of this Agreement.) 6.2 Design-Builder’s Fee. 6.2.1 Design-Builder’s Fee shall be: [Choose one of the following.] Dollars ($ ), as adjusted in accordance with Section 6.2.2 below. or percent ( %) of the Cost of the Work, as adjusted in accordance with Section 6.2.2 below. 6.2.2 Design-Builder’s Fee will be adjusted as follows for any changes in the Work: 6.2.2.1 For additive Change Orders, including additive Change Orders arising from both additive and deductive items, it is agreed that Design-Builder shall receive a Fee of percent ( %) of the additional Costs of the Work incurred for that Change Order, plus any other markups set forth in Exhibit hereto. 6.2.2.2 For deductive Change Orders, including deductive Change Orders arising from both additive and deductive items, the deductive amounts shall include: [Check one box only.] No additional reduction to account for Design-Builder’s Fee or any other markup. or An amount equal to the sum of: (a) percent ( %) applied to the direct costs of the net reduction (which amount will account for a reduction associated with Design-Builder’s Fee); plus (b) any other markups set forth in Exhibit hereto applied to the direct costs of the net reduction. SAMPLE DBIA Document No. 530 Page 8 © 2022 Design-Build Institute of America 6.3 Cost of the Work. The term Cost of the Work shall mean costs reasonably and actually incurred by Design-Builder in the proper performance of the Work. The Cost of the Work shall include only the following: 6.3.1 Wages of direct employees of Design-Builder performing the Work at the Site or, with Owner’s agreement, at locations off the Site; provided, however, that the costs for those employees of Design-Builder performing design services shall be calculated on the basis of prevailing market rates for design professionals performing such services or, if applicable, those rates set forth in an exhibit to this Agreement. 6.3.2 Wages or salaries of Design-Builder’s supervisory and administrative personnel engaged in the performance of the Work and who are located at the Site or working off-Site to assist in the production or transportation of material and equipment necessary for the Work. 6.3.3 Wages or salaries of Design-Builder’s personnel stationed at Design-Builder’s principal or branch offices, but only to the extent said personnel are identified in Exhibit and performing the function set forth in said Exhibit. The reimbursable costs of personnel stationed at Design-Builder’s principal or branch offices shall include a percent ( %) markup to compensate Design-Builder for the Project-related overhead associated with such personnel. 6.3.4 Costs incurred by Design-Builder for employee benefits, premiums, taxes, insurance, contributions and assessments required by law, collective bargaining agreements, or which are customarily paid by Design-Builder, to the extent such costs are based on wages and salaries paid to employees of Design-Builder covered under Sections 6.3.1 through 6.3.3 hereof. [In lieu of the language in Section 6.3.4 above, Design-Builder and Owner may want to include the following language.] A multiplier of percent ( %) shall be applied to the wages and salaries of the employees of Design-Builder covered under Sections 6.3.1 through 6.3.3 hereof. 6.3.5 The reasonable portion of the cost of travel, accommodations and meals for Design- Builder’s personnel necessarily and directly incurred in connection with the performance of the Work. 6.3.6 Payments properly made by Design-Builder to Subcontractors and Design Consultants for performance of portions of the Work, including any insurance and bond premiums incurred by Subcontractors and Design Consultants. 6.3.7 Costs incurred by Design-Builder in repairing or correcting defective, damaged or nonconforming Work (including any warranty or corrective Work performed after Substantial Completion), provided that such Work was beyond the reasonable control of Design-Builder, or caused by the ordinary mistakes or inadvertence, and not the negligence, of Design-Builder or those working by or through Design-Builder. If the costs associated with such Work are recoverable from insurance, Subcontractors or Design Consultants, Design-Builder shall exercise its best efforts to obtain recovery from the appropriate source and provide a credit to Owner if recovery is obtained. 6.3.8 Costs, including transportation, inspection, testing, storage and handling, of materials, equipment and supplies incorporated or reasonably used in completing the Work. 6.3.9 Costs (less salvage value) of materials, supplies, temporary facilities, machinery, equipment and hand tools not customarily owned by the workers that are not fully consumed in the performance of the Work and which remain the property of Design-Builder, including the costs of transporting, inspecting, testing, handling, installing, maintaining, dismantling and removing such items. SAMPLE DBIA Document No. 530 Page 9 © 2022 Design-Build Institute of America 6.3.10 Costs of removal of debris and waste from the Site. 6.3.11 The reasonable costs and expenses incurred in establishing, operating and demobilizing the Site office, including the cost of facsimile transmissions, long-distance telephone calls, postage and express delivery charges, telephone service, photocopying and reasonable petty cash expenses. 6.3.12 Rental charges and the costs of transportation, installation, minor repairs and replacements, dismantling and removal of temporary facilities, machinery, equipment and hand tools not customarily owned by the workers, which are provided by Design-Builder at the Site, whether rented from Design-Builder or others, and incurred in the performance of the Work. 6.3.13 Premiums for insurance and bonds required by this Agreement or the performance of the Work. 6.3.14 All fuel and utility costs incurred in the performance of the Work. 6.3.15 Sales, use or similar taxes, tariffs or duties incurred in the performance of the Work. 6.3.16 Legal costs, court costs and costs of mediation and arbitration reasonably arising from Design-Builder’s performance of the Work, provided such costs do not arise from disputes between Owner and Design-Builder. 6.3.17 Costs for permits, royalties, licenses, tests and inspections incurred by Design-Builder as a requirement of the Contract Documents. 6.3.18 The cost of defending suits or claims for infringement of patent rights arising from the use of a particular design, process or product required by Owner, paying legal judgments against Design-Builder resulting from such suits or claims, and paying settlements made with Owner’s consent. 6.3.19 Deposits which are lost, except to the extent caused by Design-Builder’s negligence. 6.3.20 Costs incurred in preventing damage, injury or loss in case of an emergency affecting the safety of persons and property. 6.3.21 Accounting and data processing costs related to the Work. 6.3.22 Other costs reasonably and properly incurred in the performance of the Work to the extent approved in writing by Owner. [Design-Builder and Owner may want to consider adding the following Section 6.3.23 to address the payment of warranty work.] 6.3.23 Owner and Design-Builder agree that an escrow account in the amount of Dollars ($ ) shall be established prior to Final Completion, which escrow shall be used to reimburse Design-Builder for the Costs of the Work incurred after Final Completion to perform warranty Work. The escrow agreement will provide that any sums not used at the expiration of the warranty period shall be returned to Owner, subject to any savings Design-Builder may be entitled to under this Agreement. In the event the warranty escrow account is exhausted, but funds remain under the GMP, Owner shall be obligated to pay Design-Builder the Costs of the Work incurred after Final Completion to perform warranty Work up to the GMP. 6.4 Allowance Items and Allowance Values. SAMPLE DBIA Document No. 530 Page 10 © 2022 Design-Build Institute of America 6.4.1 Any and all Allowance Items, as well as their corresponding Allowance Values, are set forth in the GMP Exhibit or GMP Proposal and are included within the GMP. 6.4.2 Design-Builder and Owner have worked together to review the Allowance Items and Allowance Values based on design information then available to determine that the Allowance Values constitute reasonable estimates for the Allowance Items. Design-Builder and Owner will continue working closely together during the preparation of the design to develop Construction Documents consistent with the Allowance Values. Nothing herein is intended in any way to constitute a guarantee by Design-Builder that the Allowance Item in question can be performed for the Allowance Value. 6.4.3 No work shall be performed on any Allowance Item without Design-Builder first obtaining in writing advanced authorization to proceed from Owner. Owner agrees that if Design-Builder is not provided written authorization to proceed on an Allowance Item by the date set forth in the Project schedule, due to no fault of Design-Builder, Design-Builder may be entitled to an adjustment of the Contract Time(s) and Contract Price. 6.4.4 The Allowance Value for an Allowance Item includes the direct cost of labor, materials, equipment, transportation, taxes and insurance associated with the applicable Allowance Item. All other costs, including design fees, Design-Builder’s overall project management and general conditions costs, overhead and fee, are deemed to be included in the original Contract Price, and are not subject to adjustment, regardless of the actual amount of the Allowance Item. [In the alternative, the parties may want to delete Section 6.4.4 and add the following provision.] In the event the actual direct cost of labor, materials, equipment, transportation, taxes and insurance associated with an Allowance Item is percent ( %) greater than or less than the Allowance Value for such Allowance Item, Design-Builder and Owner agree that Design-Builder’s right to Fee and markup shall be adjusted in accordance with Section 6.2.2. 6.4.5 Whenever the actual cost for an Allowance Item is more than or less than the stated Allowance Value, the Contract Price shall be adjusted accordingly by Change Order, subject to Section 6.4.4. The amount of the Change Order shall reflect the difference between actual costs incurred by Design-Builder for the particular Allowance Item and the Allowance Value. 6.5 Non-Reimbursable Costs. 6.5.1 The following shall not be deemed as costs of the Work: 6.5.1.1 Compensation for Design-Builder’s personnel stationed at Design-Builder’s principal or branch offices, except as provided for in Sections 6.3.1, 6.3.2 and 6.3.3 hereof. 6.5.1.2 Overhead and general expenses, except as provided for in Section 6.3 hereof, or which may be recoverable for changes to the Work. 6.5.1.3 The cost of Design-Builder’s capital used in the performance of the Work. 6.5.1.4 If the parties have agreed on a GMP, costs that would cause the GMP, as adjusted in accordance with the Contract Documents, to be exceeded. [The parties shall comply with the following Section 6.6 based upon whether the GMP is agreed upon before the execution of this Agreement or will be developed and agreed upon after execution of this Agreement. If the parties do not use a GMP, this Section 6.6 shall be deemed inapplicable and compensation to Design-Builder shall be based on those fees and costs identified in the balance of this Article 6.] SAMPLE DBIA Document No. 530 Page 11 © 2022 Design-Build Institute of America 6.6 The Guaranteed Maximum Price (“GMP”). 6.6.1 GMP Established Upon Execution of this Agreement. 6.6.1.1 Design-Builder guarantees that it shall not exceed the GMP of Dollars ($ ). Documents used as a basis for the GMP shall be identified in an exhibit to this Agreement (“GMP Exhibit”). Design-Builder does not guarantee any specific line item provided as part of the GMP, and has the sole discretion to apply payment due to overruns in one line item to savings due to underruns in any other line item. Design- Builder agrees, however, 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. (While the GMP Exhibit will be developed in advance or concurrently with the execution of this Agreement, it is recommended that such exhibit include the items set forth in Section 6.6.2.1 below, to ensure that the basis for the GMP is well-understood.) [In lieu of 6.6.1.1, Owner and Design-Builder may want to include the following language.] Design-Builder guarantees that it shall not exceed the GMP of Dollars ($ ). Documents used as basis for the GMP shall be identified as an exhibit to this Agreement (“GMP Exhibit”). Design-Builder does not guarantee any specific line item provided as part of the GMP, provided, however, that it does guarantee the line item for its general project management and general conditions costs, in the amount of Dollars ($ ), and as set forth in the GMP Exhibit (“General Conditions Cap”). Design-Builder agrees that it will be responsible for paying the applicable general conditions costs in excess of the General Conditions Cap, as well as be responsible for all costs of completing the Work which exceed the GMP, as said General Conditions Cap and the GMP may be adjusted in accordance with the Contract Documents. 6.6.1.2 The GMP includes a Contingency in the amount of Dollars ($ ) which is available for Design-Builder’s exclusive use for unanticipated costs it has incurred that are not the basis for a Change Order under the Contract Documents. By way of example, and not as a limitation, such costs may include: (a) trade buy-out differentials; (b) overtime or acceleration; (c) escalation of materials; (d) correction of defective, damaged or nonconforming Work, design errors or omissions, however caused; (e) Subcontractor defaults; or (f) those events under Section 8.2.2 of the General Conditions of Contract that result in an extension of the Contract Time but do not result in an increase in the Contract Price. The Contingency is not available to Owner for any reason, including, but not limited to, changes in scope or any other item which would enable Design-Builder to increase the GMP under the Contract Documents. Design-Builder shall provide Owner notice of all anticipated charges against the Contingency, and shall provide Owner as part of the monthly status report required by Section 2.1.2 of the General Conditions of Contract an accounting of the Contingency, including all reasonably foreseen uses or potential uses of the Contingency in the upcoming three (3) months. Design-Builder agrees that with respect to any expenditure from the Contingency relating to a Subcontractor default or an event for which insurance or bond may provide reimbursement, Design-Builder will in good faith exercise reasonable steps to obtain performance from the Subcontractor and/or recovery from any surety or insurance company. Design-Builder agrees that if Design-Builder is subsequently reimbursed for said costs, then said recovery will be credited back to the Contingency. 6.6.2 GMP Established after Execution of this Agreement. SAMPLE DBIA Document No. 530 Page 12 © 2022 Design-Build Institute of America 6.6.2.1 GMP Proposal. If requested by Owner, Design-Builder shall submit a GMP Proposal to Owner which shall include the following, unless the parties mutually agree otherwise: 6.6.2.1.1 A proposed GMP, which shall be the sum of: i. Design-Builder’s Fee as defined in Section 6.2.1 hereof; ii. The estimated Cost of the Work as defined in Section 6.3 hereof, inclusive of any Design-Builder’s Contingency as defined in Section 6.6.1.2 hereof; and iii. If applicable, any prices established under Section 6.1.2 hereof. 6.6.2.1.2 The Basis of Design Documents, which may include, by way of example, Owner’s Project Criteria, which are set forth in detail and are attached to the GMP Proposal; 6.6.2.1.3 A list of the assumptions 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 and is specifically included as part of the Basis of Design Documents; 6.6.2.1.4 The Scheduled Substantial Completion Date upon which the proposed GMP is based, to the extent said date has not already been established under Section 5.2.1 hereof, and a schedule upon which the Scheduled Substantial Completion Date is based; 6.6.2.1.5 If applicable, a list of Allowance Items, Allowance Values and a statement of their basis; 6.6.2.1.6 If applicable, a schedule of alternate prices; 6.6.2.1.7 If applicable, a schedule of unit prices; 6.6.2.1.8 If applicable, a statement of Additional Services which may be performed but which are not included in the GMP and which, if performed, shall be the basis for an increase in the GMP and/or Contract Time(s); and 6.6.2.1.9 The time limit for acceptance of the GMP Proposal. 6.6.2.2 Review and Adjustment to GMP Proposal. After submission of the 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. 6.6.2.3 Acceptance of GMP Proposal. If Owner accepts the GMP Proposal, as may be amended by Design-Builder, the GMP and its basis shall be set forth in an amendment to this Agreement. 6.6.2.4 Failure to Accept the GMP Proposal. If Owner rejects the GMP Proposal, or fails to notify Design-Builder in writing on or before the date specified in the GMP Proposal that it accepts the GMP Proposal, the GMP Proposal shall be deemed withdrawn and of SAMPLE DBIA Document No. 530 Page 13 © 2022 Design-Build Institute of America 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: 6.6.2.4.1 Owner may suggest modifications to the 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 6.6.2.3 above; 6.6.2.4.2 Owner may authorize Design-Builder to continue to proceed with the Work on the basis of reimbursement as provided in Section 6.1 hereof without a GMP, in which case all references in this Agreement to the GMP shall not be applicable; or 6.6.2.4.3 Owner may terminate this Agreement for convenience in accordance with Article 8 hereof; provided, however, in this event, Design-Builder shall not be entitled to the payment provided for in Section 8.2 hereof. If Owner fails to exercise any of the above options, Design-Builder shall have the right to (a) continue with the Work as if Owner had elected to proceed in accordance with Item 6.6.2.4.2 above, and be paid by Owner accordingly, unless and until Owner notifies it in writing to stop the Work, or (b) suspend performance of Work in accordance with Section 11.3.1 of the General Conditions of Contract, provided, however, that in such event Design- Builder shall not be entitled to the payment provided for in Section 8.2 hereof. 6.6.3 Savings. 6.6.3.1 If the sum of the actual Cost of the Work and Design-Builder’s Fee (and, if applicable, any prices established under Section 6.1.2 hereof) is less than the GMP, as such GMP may have been adjusted over the course of the Project, the difference (“Savings”) shall be shared as follows: [Choose one of the following.] percent ( %) to Design-Builder and percent ( %) to Owner. or The first Dollars ($ ) of Savings shall be provided to (choose either Design-Builder or Owner) , with the balance of Savings, if any, shared percent ( %) to Design-Builder and percent ( %) to Owner. 6.6.3.2 Savings shall be calculated and paid as part of Final Payment under Section 7.3 hereof, with the understanding that to the extent Design-Builder incurs costs after Final Completion which would have been payable to Design-Builder as a Cost of the Work, the parties shall recalculate the Savings in light of the costs so incurred, and Design-Builder shall be paid by Owner accordingly. 6.7 Performance Incentives 6.7.1 Owner and Design-Builder have agreed to the performance incentive arrangements set forth in Exhibit . (The parties are encouraged to discuss and agree upon performance incentives that will influence project success. These incentives may consist of Award Fees, incentives for safety, personnel retention, client satisfaction and similar items.) SAMPLE DBIA Document No. 530 Page 14 © 2022 Design-Build Institute of America Article 7 Procedure for Payment 7.1 Progress Payments. 7.1.1 Design-Builder shall submit to Owner on the ( ) day of each month, beginning with the first month after the Date of Commencement, Design- Builder’s Application for Payment in accordance with Article 6 of the General Conditions of Contract. 7.1.2 Owner shall make payment within ten (10) days after Owner’s receipt of each properly submitted and accurate Application for Payment in accordance with Article 6 of the General Conditions of Contract, but in each case less the total of payments previously made, and less amounts properly withheld under Section 6.3 of the General Conditions of Contract. 7.1.3 If Design-Builder’s Fee under Section 6.2.1 hereof 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. 7.2 Retainage on Progress Payments. 7.2.1 Owner will retain percent ( %) of each Application for Payment provided, however, that when fifty percent (50%) of the Work has been satisfactorily completed by Design-Builder and Design-Builder is otherwise in compliance with its contractual obligations, Owner will not retain any additional retention amounts from Design-Builder’s subsequent Applications for Payment. Owner will also reasonably consider reducing retainage for Work completed early in the Project. [Design-Builder and Owner may want to consider substituting the following retainage provision.] Owner will retain percent ( %) of the cost of the Work, exclusive of general conditions costs, and any amounts paid to Design-Builder’s Design Consultant, from each Application for Payment provided, however, that when fifty percent (50%) of the Work has been satisfactorily completed by Design-Builder and Design-Builder is otherwise in compliance with its contractual obligations, Owner will not retain any additional amounts from Design-Builder’s subsequent Applications for Payment. Owner will also reasonably consider reducing retainage for Work completed early in the Project. [For public projects, Design-Builder and Owner may want to consider substituting the following retainage provision.] Owner will retain percent ( %) from Design- Builder’s Applications for Payment pursuant to applicable state law. [Design-Builder and Owner may want to consider substituting the following retainage provision.] Because Owner has obtained a performance bond and payment bond pursuant to Article 10 below, Owner will not retain retainage from Design-Builder on this Project. SAMPLE DBIA Document No. 530 Page 15 © 2022 Design-Build Institute of America 7.2.2 Within fifteen (15) days after Substantial Completion of the entire Work or, if applicable, any portion of the Work, pursuant to Section 6.6 of the General Conditions of Contract, 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: (a) the reasonable value of all remaining or incomplete items of Work as noted in the Certificate of Substantial Completion; and (b) all other amounts Owner is entitled to withhold pursuant to Section 6.3 of the General Conditions of Contract. [If Owner and Design-Builder have established a warranty reserve pursuant to Section 6.3.23 above, the following provision should be included.] If a warranty reserve has been established pursuant to Section 6.3.23 above, Owner shall at the time of Substantial Completion retain the agreed-upon amounts and establish an escrow account as contemplated by Section 6.3.23 above. 7.3 Final Payment. Design-Builder shall submit its Final Application for Payment to Owner in accordance with Section 6.7 of the General Conditions of Contract. Owner shall make payment on Design- Builder’s properly submitted and accurate Final Application for Payment (less any amount the parties may have agreed to set aside for warranty work) within ten (10) days after Owner’s receipt of the Final Application for Payment, provided that De...