2021/11/17 Council Agenda Packet

Article 5 Ownership of Work Product 5.1 Work Product. All drawings, specifications and other documents and electronic data, Basis of Design Documents, and documents identified in the General Conditions, furnished by Design -Builder to Owner under this Contract ("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 5.2 through 5.5 below. 5.2 Owner's License Upon Project Completion and Payment in Full to Design Builder. Effective upon Owner's payment in full for all Work performed under the Contract Documents, Design -Builder does grant Owner a perpetual license to use the Work Product in connection with Owner's occupancy and maintenance of the Project, conditioned on (a) Owner's express understanding that its material alteration of the Work Product without the involvement of Design -Builder is to the extent of such alteration 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 (b) the Owner's obligation to provide the indemnity set forth in Section 5.5 herein. 5.3 Owner's License upon Owner's Termination for Convenience or Design -Builder's Election to Terminate. If Owner terminates this Contract for its convenience as set forth in Article 9 hereof, or if Design -Builder elects to terminate this Contract in accordance with Section 11.4 of the General Conditions, Design -Builder shall, upon Owner's payment in full of the amounts due Design -Builder under the Contract Documents, grant Owner a perpetual license to use the Work Product to complete the Project and subsequently occupy and maintain the Project, and Owner shall thereafter have the same rights as set forth in Section 5.2 above, conditioned on the following: (a) Any modification, completion or derivation of the Work Product undertaken by Owner after the effective date of the termination is to the extent of such alteration at Owner's sole risk and without liability or legal exposure to any Indemnified Party and (b) the Owner's obligation to provide the indemnity set forth in Section 5.5 herein. 5.4 Owner's License upon Design -Builder's Default. If this Contract is terminated due to Design - Builder's default pursuant to Section 11.2 of the General Conditions, then Design -Builder grants Owner a perpetual license to use the Work Product to complete the Project and subsequently occupy and maintain the Project, and Owner shall thereafter have the same rights and obligations as set forth in Section 5.2 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 Contract for convenience, and Design -Builder shall be entitled to the rights and remedies set forth in Section 5.3 above. 5.5 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 5, Owner shall defend, indemnify and hold harmless the Indemnified Parties from and against any and all claims, damages, liabilities, losses and expenses, including attorneys' fees, arising out of or resulting from the use or alteration of the Work Product. Article 6 Contract Time 6.1 Phase 1. 6.1.1 Commencement and Completion. The Phase 1 Services shall commence within five (5) days of Design -Builder's receipt of Owner's Notice to Proceed with Phase 1 unless the parties mutually PROGRESSIVE DESIGN -BUILD CONTRACT, Page 8