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(2) any negligent act or omission to act by Program Manager, Program Manager's agents, representatives, or employees, relating to the performance of, or omission to perform, any term or condition of the Agreement; and (3) any liability of any nature, for or on account of any patented or unpatented article, appliance or device used in the performance of the Agreement; b. All reasonable costs, attorneys' fees, expenses, and liabilities incurred in the defense of any claim, action or proceeding brought pursuant to Section 8.1(a). 9.2 If any such claim, action, or proceeding is brought pursuant to Section 8.1 (a) against the City or the City's officers, agents, employees, or independent contractors, Program Manager upon notice from the City, shall defend the same at Program Manager's expense by counsel satisfactory to the City and Program Manager. 9.3 The City shall promptly notify Program Manager of any claim, action, or proceeding against the City or the City's officers, agents, employees, or independent contractors, relating to the performance, or omission to perform, any term or condition of this Agreement. The City shall cooperate fully in the defense of such claim, action, or proceeding. 9.4 The City shall not be liable or responsible for any accident, loss or damage occurring on or to the work prior to the completion and acceptance of same, unless otherwise specifically agreed to at the time of occupancy by the City. ARTICLE 10 10. CONCEALED OR UNKNOWN CONDITIONS If conditions are encountered at the site which are (a) subsurface or otherwise concealed physical conditions which are at variance with those indicated in the Project Documents or (b) unknown physical conditions of an unusual nature which differ materially than those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Project Documents, then notice by the observing party shall be given to the other party promptly before conditions are disturbed and in no event later than 21 days after first observance of the conditions. The appropriate Consultant will promptly investigate such conditions and notify the City and Program Manager of any anticipated increase in the cost of or time to complete the Project. Upon such notification, Program Manager will cause the affected Contractors to be notified and to prepare change orders to their Construction Contracts to reflect such additional expense and/or time. Such change order shall processed under the guidelines set forth in Article 15 below. If the increases in Project cost causes the Project Budget to proceed, the City shall either (i) instruct Program Manager to cause the re -design of the Project or a component thereof, or modify the scope of the Project, so fit within the Project Budget, or (ii) adjust the Project Budget to include the additional costs. Any time delay associated with the foregoing shall cause an equitable adjustment to the Completion Date. If the Consultant determines that the conditions at the site are not at variance with those indicated in the Project Documents and that no change in the items of 11