SAMPLE DESIGN-BUILD AGREEMENT

INCORPORATED COUNTY OF LOS ALAMOS

SERVICES AGREEMENT

[AGRXX-XX]

This SERVICES AGREEMENT (“Agreement” or “Contract”) is entered into by and between the Incorporated County of Los Alamos, an incorporated county of the State of New Mexico ("County"), and [contractor], a [_____________company] ("Contractor"), collectively (the “Parties”), to be effective for all purposes Month Date, Year (“Effective Date”.)

WHEREAS, the County Purchasing Officer determined in writing that it is appropriate and in the best interest of the County to use the design-build project delivery system on this [project name] (“Project”), and County issued Design-Build Solicitation No. DBPXX-XX (”Solicitation”) on Month Date, Year, requesting qualifications and proposals for the Project, as described in the Solicitation; and

WHEREAS, the Solicitation for this design-build Project was conducted in two (2) phases in accordance with County Code Sec. 31-177, with Phase 1 of the Solicitation consisting of a Request for Qualifications (“RFQ”) and Phase 2 of the Solicitation consisting of a Request of Proposals (“RFP”) from those short-listed persons from Phase 1 invited to submit proposals, as was further outlined in the Solicitation; and

WHEREAS, Contractor timely responded to the Solicitation Phase 1 RFQ by submitting a Phase 1 response dated Month Date, Year, and timely responded to the Solicitation Phase 2 RFP by submitting a Phase 2 proposal dated Month Date, Year (“Contractor’s Proposal” or “Response”);

and

WHEREAS, based on the evaluation factors set out in the Solicitation, Contractor was the successful Offeror for the services listed in the Solicitation; and

WHEREAS, the County Council approved this Agreement at a public meeting held on Month Date, Year; and

WHEREAS, Contractor shall provide the Services, as described below, to County.

NOW, THEREFORE, in consideration of the premises and the covenants contained herein, County and Contractor agree as follows:

SECTION A. DEFINITIONS: Unless the context otherwise requires, a term is defined in-line, or unless expressly stated otherwise, all capitalized terms used in this Agreement are defined in this Section and/or in Section 5.2.1 of the Construction Contract Book, attached hereto as Exhibit D, and made a part hereof for all purposes. Where a term is not defined, the standard meaning applies:

1) The terms “Contract” and “Agreement” are interchangeable when used throughout.

2) Addenda – Written or graphic documents issued prior to the opening of Responses to the

RFQ and Proposals to the RFP which modifies or interprets the Solicitation Documents, Services Agreement No. [AGRXX-XX] [contractor]

Drawings and Specifications, by additions, deletions, clarifications or corrections.

3) Application for Payment – The form accepted by the County which is to be used by Contractor in requesting progress or final payments and which is to be accompanied by such supporting documentation as is required by the Contract documents.

4) Change Order – A written Amendment to the Contract, signed by both parties, authorizing an addition, deletion or revision in the Work within the general scope of the Contract, or authorizing an adjustment in the Contract, Contract Price or Contract Time.

5) Completion Definitions:

a) Substantial Completion - The date when the Contractor and County consider the entire

Work ready for its intended use as evidenced by the Certificate of Substantial Completion.

b) Partial Utilization Use by County at County’s sole option of any substantially completed part of the Work which constitutes a separately functioning and usable part of the Work that can be used by County for its intended purpose without significant interference with Contractor’s performance of the remainder of the Work and may be accomplished prior to Final Completion of all the Work.

c) Final Completion – The date when the Contractor and County consider the entire Work to be complete, including all outstanding Punch List items. Contractor shall at the completion of Work, in addition to any requirements and obligations outlined in the Contract, remove all debris and other rubbish from the Project site and shall remove all its tools and surplus materials and shall leave the Project site clean. If the Contractor fails to clean up, the County may do so and subtract the cleanup cost from the Contractor’s final payment. Contractor shall legally dispose of all construction debris at the Contractor’s expense.

6) Construction Contract Book: In addition to any other provisions related to Construction Services in this Agreement, the Construction Contract Book, attached hereto as Exhibit #, shall be the primary document to govern construction of the Project after the final design has been approved by County Council.

7) Contract Documents: The written Contract between County and Contractor covering the Work to be performed, including but not limited to all associated documents contained in the Solicitation:

a) The Agreement, Addenda to the Solicitation, Scope of Services, Requirements for

Offerors, Cost Proposal Forms, Award Forms, Application and Certification of Payment, Contract Book General Requirements, Notices to Contactor, Technical Specifications and Plans, and documentation submitted by Contractor prior to Notice of Award, Bonds, Written Amendments to the Contract, Change Orders, Field Orders, and County’s written interpretations and clarifications issued on or after the Effective Date of the Agreement, all of which are incorporated by reference and made a part of this Contract as fully as if herein repeated and a copy of which the Contractor acknowledges hereby that it has received, understands and agrees to. Engineer’s written interpretations and clarifications issued on or after the Effective Date of the Contract as identified and incorporated by reference therein.

b) Shop Drawing submittals approved, and the reports and drawings referred to in Section

5.2.4 of the Construction Contract Book are not Contract Documents.

8) Contract Price or “Construction Contract Price” - The total monies payable to the Contractor under the terms and conditions of the Contract Documents for the construction Work and includes all County-approved changes thereafter.

9) Contract Time. The time period stated in the Contract for the Contractor’s completion and County’s acceptance of the Work. See also Term below.

10) Construction Services: (See Work below)

11) Contractor: The person, firm or corporation with whom the County has executed the Agreement.

12) County Designee: (See Project Manager below).

13) Construction Documents - The detailed final drawings and written specifications that translate the Designer’s design into a buildable, legally binding plan, suitable for obtaining permits.

14) Critical Path: The sequence of activities that represents the longest path through a Project Gantt Chart schedule, which determines the shortest possible duration.

15) Design Phases:

a) Schematic Design Phase: The initial design phase during which overall goals and requirements are determined.

b) Design Development Phase: The phase in which the Project design is further advanced and refined. By the conclusion of this phase, the majority of the Project Specifications are identified. The level of detail produced is greater than that of Schematic Design and serves to allow the County to review comprehensive drawings and make well-informed assumptions of the final designs. These drawings should be detailed and highly representative of the eventual Construction Documents.

c) Construction Drawings Phase: The phase in which the Design Professional of Record finalizes the detailed plans and Specifications required for construction. This is an iterative review process and may include multiple reviews and submittals, typically at the 90% and 100% completion stages to ensure accuracy, completeness, and compliance with Project requirements.

16) Design Professional of Record or “Designer”: The individual, including the Architect or Engineer, who has designed the technical aspects of this Project for the County.

17) Design Services: The professional architectural, engineering, and related design activities performed by the Contractor to create the plans, Drawings, and Specifications for the Project.

18) Drawings: (See Shop Drawings below).

19) Earned Value Management: The evaluation technique as defined by the Project Management Institute to measure a Project’s progress by comparing cost expended to the budgeted cost at a given time in the Project schedule.

20) Interested and Affected Parties (“IAPs”): IAPs include but are not limited to individuals, community members, public or private organizations, special interest groups, and governing and regulatory bodies that are located within the geographic scope of the Project, possess a defined interest in its outcomes, or are directly or indirectly impacted by its implementation and operations.

21) Project: The design and construction of a bike park and its associated amenities, as fully detailed in the Solicitation Documents and the Agreement.

22) Project Manager: County’s Designee who provides construction oversight, administration, inspection, and quality assurance services during construction.

23) Punch List Items: A list of deficiencies to be corrected by Contractor between Substantial and Final Completion.

24) Services: The comprehensive combination of all Design Services and Construction Services required from the Contractor under this Agreement.

25) Shop Drawings or “Drawings”: All drawings, diagrams, illustrations, brochures, schedules and other data which are prepared by the Contractor, a Subcontractor, manufacturer, supplier, or distributor which illustrate how specific portions of the Work shall be fabricated, performed or installed. Shop Drawings shall illustrate some portion of the Work and confirm dimensions and conformance to Solicitation Documents. Shop Drawings are not part of the Contract Documents.

26) Solicitation: The request for qualifications and request for proposals and all associated Solicitation Documents issued by the County to request qualifications and proposals from interested firms for the Project.

27) Solicitation Documents: Includes but not limited to advertisement, invitation to the Solicitation, scope of work documents, proposal forms, attachments, exhibits, plans, Specifications, all addenda issued prior to receipt of proposals, documents that are provided through the County’s Procurement Portal, and includes the executed Contract.

28) Specifications or “Technical Specifications”: Written descriptions of a technical nature of materials, equipment, construction systems, standards, and workmanship.

29) Subcontractor: An individual, firm or corporation having a direct contract with the Contractor (not the County) or with any other Subcontractor for the performance of a part of the Work at the site.

30) Term: The term of the Contract as specified in Section F. For clarity the Term of the Contract includes both Design Services and Contract Time, which applies specifically to construction Work.

31) Work: The entire construction or various separately identifiable parts thereof required to be furnished under the Contract. Work includes and is the result of performing or furnishing and incorporating materials and equipment into the construction, and performing furnishing services and furnishing documents, all as required by the Contract.

SECTION B. EXHIBITS: The following Exhibits listed here relate to the Services described herein, are reference throughout, and are attached hereto and made a part hereof for all purposes.

1) Exhibit A – Design Requirements

2) Exhibit B – Compensation Rate Schedule

3) Exhibit C – Confidential Information Disclosure

4) Exhibit D – Construction Contract Book

SECTION C. SUBJECT MATTER. The Contractor shall perform the Services and shall furnish all the materials, equipment, tools, labor and all supplies, appliances, and appurtenances necessary to the full completion of the Services on the Project, and in accordance with the language of the Agreement. The term “Agreement” or “Contract” includes all the terms, conditions and obligations. The Services shall be performed in accordance with the Agreement, which shall be interpreted to give full effect to all the terms and conditions herein.

Regarding Design Services, in the event of a conflict in the terms and provisions of this Agreement and any Exhibits, Section AC shall govern the order of precedence.

Regarding Construction Services, in the event of a conflict in the terms and provisions of the Construction Contract Book, the terms and provisions of the following documents shall control in the following order:

1) Change Orders, if applicable;

2) Amendments, if applicable;

3) Addenda, if applicable;

4) Agreement;

5) Construction Contract Book;

6) Notice to Contractors;

7) Special Conditions;

8) General Conditions;

9) Technical Specifications;

10) Drawings

SECTION D. LIQUIDATED DAMAGES FOR DELAY OF COMPLETION OF CONSTRUCTION

1) Should the Contractor fail to complete the Work within the time agreed upon in the Agreement, Contractor will be assessed $500.00 per day or fraction thereof for each calendar day beyond the Substantial, and/or Final Completion dates, including all executed Change Orders. In view of the difficulty of estimating the damage, this amount is fixed by and agreed to by the parties as the amount of liquidated damages that the County will suffer and Contractor shall pay by reason of such default and not by way of penalty.

2) Delays.

a) If the Contractor is delayed at any time in the progress of the Work by any act or neglect by the County, or by changes in the Work, or by labor disputes, fire, unusual delay in transportation, unusual weather, adverse soil conditions other than was described in a geotechnical survey, unavoidable loss by the Contractor, delays specifically authorized by the County, or by unforeseeable or unavoidable causes beyond the Contractor’s control, avoidance, or mitigation, and without the fault or negligence of the Contractor or Subcontractor or supplier at any tier, then the Contract Time may be extended by Change

Order for such reasonable time as the overall completion of the Work, as the County may in its sole discretion determine that such event has delayed the Critical Path of the County approved schedule and Completion of the Work, only if the Contractor complies with the notice and documentation requirements set forth below.

b) Contractor shall provide a written notice of delay which may result in a request for an extension of time to the County, within ten (10) calendar days from the date the Contractor knew or should have known of the facts giving rise to the delay. The notice shall indicate the cause of the delay, the anticipated length of the delay, and the probable effect of such delay upon the progress of the Work. If the cause of the delay is continuous, the Contractor must give written notice to County every month at the same time it submits the updated schedule and/or progress report to the County with the Application for Payment. County will review Contractor’s notice of delay and request for extension of Contract Time, determine its timeliness and alleged facts giving rise to the delay as alleged by Contractor.

The County may in its sole discretion determine if the Contract Time should be extended.

c) Within fifteen (15) calendar days after the elimination of any such delay, the Contractor shall submit a formal Change Order request for an extension of time for such delay. The written request for time extension shall state the cause of the delay, the number of days extension requested, and such analysis and documentation of the schedule of the project and other documentation to demonstrate a delay in the Critical Path of the Work.

d) If the Contractor does not comply with the notice and documentation requirements set forth above, the Contractor shall have waived its right to a claim for delay. Contractor’s submission of a notice of delay to County is not a guarantee that County will grant the requested extension of the Contract Time.

SECTION E. SERVICES: The activities required to fulfill the requirements of this Agreement include but may not be limited to the design, engineering, permitting, procurement, material coordination, construction, testing, and completion of the Project.

1) Design Scope of Services. [The services entered in this section of the Sample Services

Agreement are to be determined by Contractor’s Proposal. In addition to any Design Services outlined in Solicitation Documents, the following is a sample outline of some of the minimum tasks and deliverables County anticipates will be required to design the Project. County reserves the right to revise the content of these sections based on Responses received from either Phase 1 or Phase 2 of the Solicitation.]

In addition to any other Services described herein and in attached Exhibits, Contractor shall provide the following Design Services:

a) Generally.

i) Contractor shall Provide a conceptual design with simple plans and sketches, detailing layout of Project site and work plan for each area to be constructed by phase.

ii) Following input from IAPs, and receipt of direction from County, Contractor shall revise the conceptual design as needed, providing up to five (5) revisions at no additional cost to County, and attend County Council meetings to assist in presentation of the design with cost considerations.

iii) Following approval by County Council, Contractor shall receive direction from County Project Manager to develop construction plans.

iv) The proposed design and construction plans must include, at a minimum, all design deliverables described herein, and a well designed and constructed [bike park and amenities] fulfilling the requirements as detailed in the Solicitation Documents and Contractor’s Proposal, detailing any required support or infrastructure building(s) and site.

b) Architect / Engineer Design Phase Deliverables. The following phases shall be used for the design portion of the Project. The list of deliverables is not all inclusive or limited only to these deliverables listed below. At the end of each phase there will be a formal review and approval process by the County before proceeding to the next phase.

i) Schematic Design Phase.

(1) Develop a schematic design further developing the approved conceptual design.

(2) Materials and systems concepts

(3) Site analysis

(4) A landscaping plan for the entire Project by phase.

(5) Site development concept including utility improvements beyond the Project site.

(6) Detailed cost estimate for final selected Schematic Design.

(7) Public information support material.

(8) Interdepartmental Review Committee (IDRC) Planning and Zoning and County

Council required materials for approval.

(9) Schematic Design. Contractor will generate for each public meeting large format boards of schematic design site plans to provide design progress and educate the public. Design must comply with all applicable codes.

ii) Design Development Phase.

(1) Design development Drawings (civil, landscape, architectural and structural design package may precede mechanical, electrical, technology, and interior design drawings)

(2) Outline Specifications

(3) Cost estimate

(4) Design Development. Contractor will generate a thorough Design development package(s) meeting industry standards and best practices for a two-week staff review.

iii) Construction Documents Phase.

(1) Complete Architectural and Engineering working drawings (civil, landscape, architectural and structural design package may precede mechanical, electrical, and interior design drawings)

(2) Design Coordination Plan & Workshop

(3) Technical Specifications

(4) Specifications are provided to County in a timely manner prior to installation.

(5) Complete Construction Documents including detailed coordination of equipment, hardware, Audio/Visual equipment, etc. with building infrastructure.

(6) Complete general/supplemental Specifications

(7) Update cost estimate

(8) Construction Documents. Contractor will generate review sets of construction packages two weeks prior to submitting for permit. This process can be phased to meet schedule requirements. County permits construction Work through the State of New Mexico Construction Industries Division. All state and federal laws pertaining to public facilities such as the Americans with Disabilities Act and voting machine and material storage requirements are applicable.

c) Design Phase Deliverables.

i) For each phase of design, the Contractor shall prepare a realistic construction estimate within the total Project cost budget based on the following parameters:

(1) Schematic Design Phase: Total Project cost estimate including an adequate design contingency.

(2) Design Development Phase: Total Project cost estimate including an adequate design contingency.

(3) Construction Documents Phase: A lump sum not-to exceed Project budget.

(4) Construction Phase: Perform all the construction Work within the approved Project budget.

ii) Fee Schedule for General Contractor (GC) shall be a maximum of 2% for all design phases to cover all costs incurred in developing construction budgets, (attending meetings, handling Architectural and Engineering invoices, any reproduction costs, etc.). During the construction phase, payments shall be made to the GC by monthly Application for Payment(s) based upon an approved schedule of values and the corresponding portion of the Work performed as contained in and in accordance with the Construction Contract Book.

iii) For each phase of design, the Contractor will perform constructability and coordination reviews and publish comments.

2) Design Approval and Construction. Construction of the Project is contingent upon approval by County Council of the final design and availability of funding for the construction of the Project. Construction activities detailed herein and in Exhibit D shall not occur until approval of the final design is granted by County Council at a public meeting. County reserves the right to terminate this Agreement pursuant to Section AA if a design is not approved by County Council.

3) Construction and Amendment for Approved Design.

a) Construction deliverables, technical Specifications, as-built requirements, and other construction terms and conditions are defined in Exhibit D.

b) County reserves the right, pursuant to Section J to amend this Agreement and Exhibit D to incorporate details related to the selected design to aid the Parties in management of the construction of the Project.

c) Exhibit D shall be the primary document to govern construction of the Project. The Project shall also include or incorporate all applicable construction requirements identified herein.

SECTION F. TERM:

1) The term of this Agreement shall commence Month Date, Year. Contractor shall proceed with performance under this Agreement at such a rate of progress such that all Work, duties, and obligations under this Agreement have been met by Month Date, Year (“Final Completion Date”).

2) The Contractor shall proceed with the Work at such rate of progress to ensure full completion of the Work by the Final Completion date. It is expressly understood and agreed, by and between the Contractor and the County, that the Contract Time for the completion of Work described herein is a reasonable time, and that in submitting its Proposal for the Project and executing the Agreement, the Contractor has taken into consideration the average climatic and economic conditions and other factors prevailing in the locality where the Work is to be performed.

SECTION G. COMPENSATION:

1) Amount of Compensation. County shall pay compensation for performance of the Services in an amount not to exceed (“NTE”) [amount] ($XXXXX), which amount does not include any applicable New Mexico gross receipts taxes (“NMGRT”) or other current or future generally applicable taxes and/or fees. Compensation shall be paid in accordance with the rate schedule set out in Exhibit A.

a) Design Compensation. In consideration of the satisfactory performance of the Design

Services by the Contractor and acceptance of such Design Services by the County, Contractor shall be paid an amount NTE the amount of [amount] ($XXXXX), plus applicable NMGRT. If Contractor’s final design for the core Project requirements causes the construction cost estimate to exceed the NTE compensation amount for construction originally approved in the agreement, Contractor shall, at its sole cost and expense, in coordination with County, modify and redesign the project concepts as necessary to bring the estimated construction costs within the NTE compensation amount for construction without reducing the core Project requirements. Notwithstanding any NTE compensation amounts or estimated budget limitations established herein, in the event that additional funding becomes available, the Agreement may, at County’s sole and absolute discretion, be amended in accordance with County’s Procurement Code and procedures. Any such increases require an Amendment to this Agreement, pursuant to the terms and conditions herein, and any such County-approved increases shall proportionally adjust the baseline value required for construction Performance and Labor-Material Bonds.

b) Construction Contract Price. In consideration of the satisfactory performance of the Work by the Contractor and the acceptance of such Work by the County, Contractor shall be paid an amount not to exceed the Contract Price of [amount] ($XXXXX), as may be amended pursuant to Section E(3)(b) based on the County-approved final plan pursuant to Section E(2), plus any executed Change Order(s), plus applicable NMGRT.

Performance and Labor-Materials Bonds, which shall be executed within ten (10) calendar days from the date of receipt of Notice of Award shall be in amount equal to one hundred percent (100%) of the total amount payable for Construction in this section, as may be amended, and any executed Change Order(s).

2) Total Not-to-Exceed Compensation Amount. The Parties understand that County can only utilize Contractor’s Services, as specified herein, throughout the Term of this Agreement, in a manner that does not surpass the total not-to-exceed compensation amount for Services originally estimated by County and specified in Section G(1) herein, unless approved by Amendment to this Agreement. Any increase to the not-to-exceed compensation amount provided herein must be authorized by an Amendment to this Agreement. It is the sole responsibility of Contractor to ensure that all work performed does not exceed the not-to-exceed amount of this Agreement and any subsequent Amendment. Any work performed under this Agreement by Contractor where the costs exceed the not-to-exceed amount is not a just and lawful debt payable to Contractor.

3) Monthly Invoices for Design. Contractor shall submit in writing itemized monthly invoices for design-related tasks to County’s Project Manager showing the work completed and amount of compensation due, amount of any NMGRT, and total amount payable. Payment of undisputed amounts shall be due and payable thirty (30) days after County’s receipt of the invoice. Contractor shall submit Applications for Payment as outlined in Exhibit D and described below in Section G(4) Progress Payments for Construction, for all construction Work.

4) Progress Payments for Construction.

a) Contractor shall submit (but not more often than once a month), to the County for review, an Application and Certification for Payment, as shown in Exhibit D, Section 5.1.4, filled out and accompanied by such supporting documentation as is required by the Contract and as the County may reasonably require. The County has fourteen (14) business days to review each Application for Payment either to accept or reject it. If application is rejected, Contractor shall resubmit a new Application for Payment. Upon any re-submittal of Application for Payment, the twenty-one (21) calendar day time frame is reinstated, as outlined below. Applications for payments shall be based on the performance of the Work in accordance with the Contract Documents. Contractor shall submit Earned Value Management report if required by the Project Manager with each Application for Payment.

b) Contractor warrants and guarantees that title to all work, material and equipment covered by an Application for Payment, whether incorporated in the Project or not, will pass to County at the time of payment, free and clear of all liens, claims, security interests and encumbrances.

c) Prior to Substantial Completion, the County with the concurrence of the Contractor may use any completed or substantially completed portions of the Work. Such use shall not constitute an acceptance of such portions of the Work.

d) As provided herein, County may refuse to make payment of the full amount requested by the Contractor. County will provide Contractor with written notice (with copy to Engineer) stating the reasons for such action.

e) If payment is requested and approved by the County’s Project Manager on the basis of materials and equipment not incorporated in the Work but delivered and suitably stored at the site or at another location agreed to in writing, the Application for Payment shall also be accompanied by such data, (receipts, invoices, packing lists, delivery tickets, etc.)

satisfactory to County and shall establish County’s title to the material and equipment and Project. Contractor is solely responsible for all loss or damage to stored materials regardless of cause.

f) In the event that agreement between the County or County’s Designee and Contractor cannot be reached concerning a County rejected Application for Payment, the County will pay the portion not in question and attempt to reach agreement on those portions not in agreement in the next billing cycle.

g) Payment may be made by mutually agreed upon method.

h) Contractor agrees that County has full power to withhold payment and release of Contractor’s Performance Bonds and Labor and Materials Bonds until all the Work is completed to the County’s satisfaction; until the Contractor has satisfied the County that it has fully settled or paid respective suppliers and Subcontractors for all labor performed and materials, supplies, equipment rentals, and services used; and to withhold payment equal to liquidated damages as accepted payment for liquidated damages.

i) County, at its sole discretion, may require an Affidavit of Payment and Release of Liens with every Application for Payment.

j) Unless otherwise specified in the Solicitation Documents as a Notice of Extended Payment, permitting the County to make payment within a period not to exceed forty-five

(45) days, payments shall be made within twenty-one (21) calendar days from receipt of an undisputed request in accordance with the New Mexico Prompt Payment Act, Sections 57-28-1 et seq. NMSA 1978.

k) Final Application for Payment.

i) The final Application for Payment shall include a notarized Affidavit of Payment and

Release of Liens.

ii) After Contractor has completed all corrections to the satisfaction of the County and delivered in accordance with the Contract all maintenance and operating instructions, all materials including but not limited to spare parts, lubricants, etc., as required by the Contract, schedules, guarantees, bonds, certificates or other evidence of insurance, certificates of inspection, Notice of Termination for National Pollutant Discharge Elimination System NPDES, marked up record documents showing Work as constructed (as-builts), video tapes, or other required documents, Contractor may make final Application for Payment following the procedure outlined above for progress payments. The final Application for Payment shall be accompanied (except if previously delivered) by all documentation called for in the Contract, including but not limited to the evidence of insurance required, consent of surety, if any, to final payment, and complete and legally effective releases or waivers (satisfactory to County) of all liens arising out of or filed in connection with the Work. If any Subcontractor or supplier fails to furnish such release or receipt in full, Contractor may furnish a bond or other collateral satisfactory to County to indemnify County against any lien or other claim(s).

l) Final Payment and Acceptance.

i) County shall process the final Application for Payment upon the following: Engineer’s and County’s observation of the Work during construction; final inspection and Engineer’s review of the final Application for Payment and accompanying documentation as required by the Contract; and the Engineer recommends to County that the Work has been completed and Contractor’s other obligations under the Contract have been fulfilled. Otherwise, County will return the Application for Payment to Contractor, indicating in writing the reasons for refusing to recommend final payment, in which case Contractor shall make the necessary corrections and resubmit the Application for Payment once the corrections have been made to the satisfaction of the County.

m) The Final Payment by the County signifies that the Work has been accepted by the County under the conditions of the Contract.

i) Contractor agrees that the acceptance by the Contractor of Final Payment shall be and shall operate as a full and complete release to the County of all claims and all liability to the Contractor, for all things done or furnished in connection with this Work and for every act and neglect of the County and others relating to or arising out of this Work, provided that such release shall not apply to claims in stated amounts as may be specifically expected by the Contractor. Any payment, however, final or otherwise, shall not release the Contractor or the Contractor’s sureties from any obligations under the Contract or the Performance Bond and Labor and Materials Bond.

n) Contractor agrees that the making and acceptance of final payment shall constitute a full and complete waiver of all claims (whether know or unknown, presently existing, or arising in the future) by the Contractor against the County other than those previously made in writing and still unsettled.

SECTION H. TAXES: Contractor shall be solely responsible for timely and correctly billing, collecting and remitting all NMGRT levied on the amounts payable under this Agreement.

SECTION I. PAYMENT TO MECHANICS AND LABORERS: Contractor agrees to make prompt payment to its Subcontractors and suppliers for work performed under the Contract within seven

(7) calendar days after receipt of payment from County and to pay all mechanics and laborers in accordance with NMSA 1978, Section 57-28-5, as applicable. Contractor shall obtain from each supplier of labor, services or materials used in the performance of Contractor’s obligations under this Contract a written release and waiver of all liens against County and Project. Such releases and waivers of lien shall be submitted to County with the final Application for Payment and may be required with each Application for Payment at County’s sole discretion.

Additionally, all Subcontractors shall require that their subcontractors and suppliers make prompt payment to their subcontractors and suppliers for amounts owed for work performed on the Project within seven (7) calendar days after receipt of payment from the County, Contractor or Subcontractors, as applicable.

If the Contractor or a Subcontractor fails to pay the Contractor’s or Subcontractor’s subcontractor and suppliers by first-class mail or hand delivery within seven (7) calendar days of receipt of payment, the Contractor or Subcontractor shall pay interest to the Subcontractors and suppliers beginning on the eighth day after payment was due, computed at one and one-half percent of the disputed amount per month or fraction of a month until payment is issued. These payment provisions apply to all tiers of contractors, Subcontractors and suppliers.

SECTION J. MODIFICATION OF CONTRACT AND CHANGE ORDERS: This Agreement shall be modified only by mutual written consent of the parties. County may at any time, as the need arises, order changes within the Project without invalidating this Agreement. If such changes increase or decrease the costs of the Project within the not-to-exceed compensation amount provided herein, or the time required for completion of the Project, then an equitable adjustment to the amount of compensation due and/or times for completion of the Project shall be authorized by the Change Order as mutually agreed to by County and Contractor. Only the County Manager shall have authority to authorize such Change Orders on behalf of the County under this Agreement. If such changes increase the costs of the Project beyond the not-to-exceed compensation amount provided herein, such an increase must be approved and authorized by an Amendment to this Agreement.

SECTION K. STATUS OF CONTRACTOR, STAFF, AND PERSONNEL: This Agreement calls for the performance of services by Contractor as an independent contractor. Contractor is not an agent or employee of County and shall not be considered an employee of County for any purpose.

Contractor, its agents, or employees shall make no representation that they are County employees, nor shall they create the appearance of being employees by using a job or position title on a name plate, business cards, or in any other manner, bearing County’s name or logo.

Neither Contractor nor any employee of Contractor shall be entitled to any benefits or compensation other than the compensation specified herein. Contractor shall have no authority to bind County to any agreement, contract, duty, or obligation. Contractor shall make no representations that are intended to, or create the appearance of, binding County to any agreement, contract, duty, or obligation. Contractor shall have full power to continue any outside employment or business, to employ and discharge its employees or associates as it deems appropriate without interference from County; provided, however, that Contractor shall at all times during the term of this Agreement maintain the ability to perform the obligations in a professional, timely, and reliable manner.

SECTION L. STANDARD OF PERFORMANCE: Contractor agrees and represents that it has and shall maintain the personnel, experience, and knowledge necessary to qualify it for the particular duties to be performed under this Agreement. Contractor shall perform the Services described herein in accordance with a standard that meets the industry standard of care for performance of the Services.

SECTION M. DELIVERABLES AND USE OF DOCUMENTS: All deliverables required under this Agreement, including material, products, reports, policies, procedures, software improvements, databases, and any other products and processes, whether in written or electronic form, shall remain the exclusive property of and shall inure to the benefit of County as works for hire; Contractor shall not use, sell, disclose, or obtain any other compensation for such works for hire. In addition, Contractor may not, with regard to all work, work product, deliverables, or works for hire required by this Agreement, apply for, in its name or otherwise, any copyright, patent, or other property right, and acknowledges that any such property right created or developed remains the exclusive right of County. Contractor shall not use deliverables in any manner for any other purpose without the express written consent of County.

SECTION N. EMPLOYEES AND SUBCONTRACTORS: Contractor shall be solely responsible for payment of wages, salary, or benefits to any and all employees or Subcontractors retained by Contractor in the performance of the Services. Contractor agrees to indemnify, defend, and hold harmless County for any and all claims that may arise from Contractor's relationship to its employees and Subcontractors.

SECTION O. INSURANCE: Contractor shall obtain and maintain insurance of the types and in the amounts set out below throughout the term of this Agreement with an insurer acceptable to County. Contractor shall assure that all Subcontractors maintain like insurance. Compliance with the terms and conditions of this Section is a condition precedent to County’s obligation to pay compensation for the Services, and Contractor shall not provide any Services under this Agreement unless and until Contractor has met the requirements of this Section. County requires, and Contractor shall provide (and keep updated as necessary) prior to commencing any Services under this Agreement, Certificates of Insurance, or other evidence acceptable to County, stating that Contractor has met its obligation to obtain and maintain insurance and to assure that Subcontractors maintain like insurance. Should any of the policies described below be cancelled before the expiration date thereof, notice shall be delivered in accordance with the policy provisions. General Liability Insurance and Automobile Liability Insurance shall name County as an additional insured.

1) General Liability Insurance: ONE MILLION DOLLARS ($1,000,000.00) per occurrence;

TWO MILLION DOLLARS ($2,000,000.00) aggregate.

2) Workers’ Compensation: In an amount as may be required by law. County may immediately terminate this Agreement if Contractor fails to comply with the Worker’s Compensation Act and applicable rules when required to do so.

3) Automobile Liability Insurance for Contractor and its Employees: ONE MILLION

DOLLARS ($1,000,000.00) combined single limit per occurrence; TWO MILLION DOLLARS ($2,000,000.00) aggregate on any owned, and/or non-owned motor vehicles used in performing Services under this Agreement.

4) Professional Liability Insurance: ONE MILLION DOLLARS ($1,000,000.00). Professional

Liability Insurance shall provide coverage for Services provided hereunder during the term of this Agreement and for a period of at least five (5) years thereafter.

5) ALL RISKS BUILDERS RISK INSURANCE (covering Fire, Extended Coverage, Vandalism and Malicious Mischief): will be carried on a completed value or reporting form, for not less than 100% of the value of the work, including foundations. The All Risks Builder’s Risk Insurance shall include the Incorporated County of Los Alamos and will cover the interests of all Subcontractors without specifically naming them. If the insurance is written subject to a deductible clause, Contractor assumes sole responsibility for the amount of the deductible.

Note that insurance limits set out above shall not be deemed a limitation on Contractor’s liability under this Agreement.

SECTION P. RECORDS: Contractor shall maintain, throughout the term of this Agreement and for a period of six (6) years thereafter, records that indicate the date, time, and nature of the services rendered. Contractor shall make available, for inspection by County, all records, books of account, memoranda, and other documents pertaining to County at any reasonable time upon request.

SECTION Q. DUTY TO ABIDE: Contractor shall abide by all applicable federal, state, and local laws, regulations, and policies and shall perform the Services in accordance with all applicable laws, regulations, and policies during the term of this Agreement.

SECTION R. NON-DISCRIMINATION: During the term of this Agreement, Contractor shall not discriminate against any employee or applicant for an employment position to be used in the performance of the obligations of Contractor under this Agreement, with regard to race, color, religion, sex, age, ethnicity, national origin, sexual orientation or gender identity, disability, or veteran status.

SECTION S. CHOICE OF LAW: The interpretation and enforcement of this Agreement shall be governed by and construed in accordance with the laws of the State of New Mexico.

SECTION T. VENUE, FORUM NON-CONVENIENS, EXCLUSIVE STATE JURISDICTION:

County and Contractor knowingly, voluntarily, intentionally, and irrevocably agree that any and all legal proceedings related to this Agreement, or to any rights or any relationship between the Parties arising therefrom, shall be solely and exclusively initiated, filed, tried, and maintained in the First Judicial District Court of the State of New Mexico. County and Contractor each expressly and irrevocably waive any right otherwise provided by any applicable law to remove the matter to any other state or federal venue, consents to the jurisdiction of the First Judicial District Court of the State of New Mexico in any such legal proceeding, waives any objection it may have to the laying of the jurisdiction of any such legal proceeding. County and Contractor also agree that this term is a material inducement for each to enter this Agreement, and that both County and Contractor warrant and represent that each have had the opportunity to review this term with legal counsel.

SECTION U. WAIVER OF JURY TRIAL: In the event of any action or proceeding, (including without limitation, any claim, counterclaim, cross-claim or third party claim) arising out of or, relating to this Agreement, or the transaction contemplated by this Agreement, County and Contractor KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVE ANY RIGHT TO A JURY TRIAL, and agree that a court shall determine and adjudicate all issues of law and fact with a jury trial being expressly waived. County and Contractor also agree that this waiver of a jury trial was a material inducement for each to enter this Agreement, and that both County and Contractor warrant and represent that each have had the opportunity to review this jury waiver with legal counsel.

SECTION V. INDEMNITY: Contractor shall indemnify, defend, and hold harmless County, its Council members, employees, agents, and representatives, from and against all liability, claims, demands, actions (legal or equitable), damages, losses, costs, or expenses, including attorney fees, of any kind or nature, to the extent that the liability, claims, demands, actions, damages, losses, costs, and expenses are caused by, or arise out of, the acts or omissions of the Contractor or Contractor’s officers, employees, agents representatives, and Subcontractors in the performance or breach of the Services under this Agreement. All representations, indemnifications, warranties, and guarantees made in, required by or given in accordance with the Contract, as well as all continuing obligations indicated in the Contract, will survive Final Payment to the extent permitted by New Mexico or other applicable law, completion and acceptance of the Work and termination or completion of the Agreement.

SECTION W. FORCE MAJEURE: Neither County nor Contractor shall be liable for any delay in the performance of this Agreement, nor for any other breach, nor for any loss or damage arising from uncontrollable forces such as fire, theft, storm, war, or any other force majeure that could not have been reasonably avoided by exercise of due diligence; provided, however, that the party failing to perform shall (i) as soon as possible, inform the other party of the occurrence of the circumstances preventing or delaying the performance of its obligations, and describe at a reasonable level of detail the circumstances causing such delay, and (ii) exert reasonable efforts to eliminate, cure, or overcome any of such causes and to resume performance of its Services with all possible speed. In such event, the non-performing party may be excused from any further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and such party continues to use its best efforts to recommence performance or observance whenever and to whatever extent possible without delay.

SECTION X. NON-ASSIGNMENT: Contractor shall not assign this Agreement or any privileges or obligations herein and shall not novate this Agreement to another without the prior written consent of the County Manager.

SECTION Y. LICENSES: Contractor shall maintain all required licenses including, without limitation, all necessary professional and business licenses, throughout the term of this Agreement. Contractor shall require and shall assure that all of Contractor’s employees and Subcontractors maintain all required licenses including, without limitation, all necessary professional and business licenses.

SECTION Z. PROHIBITED INTERESTS: Contractor agrees that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of its Services hereunder. Contractor further agrees that it shall not employ any person having such an interest to perform Services under this Agreement. No County Council member or other elected official of County, or manager or employee of County shall solicit, demand, accept, or agree to accept, a gratuity or offer of employment contrary to Section 31-282 of the Los Alamos County Code.

SECTION AA. TERMINATION:

1) The County Manager may terminate this Agreement with or without cause upon ten (10) days’ prior written notice to Contractor. Upon such termination, Contractor shall be paid for Services actually completed to the satisfaction of County at the rate set out in Section G. Contractor shall render a final report of the Services performed to the date of termination and shall turn over to County originals of all materials prepared pursuant to this Agreement.

2) Funding. This Agreement shall terminate without further action by County on the first day of any County fiscal year for which funds to pay compensation hereunder are not appropriated by County Council. County shall make reasonable efforts to give Contractor at least ninety

(90) days advance notice that funds have not been and are not expected to be appropriated for that purpose.

3) Upon completion of all Construction Services required under this Contract, County shall issue a Notice of Final…