Appendix A - Design Build Sample Agreement (2).pdf

DESIGN-BUILD AGREEMENT AF-2024.100

ADAMS COUNTY COLORADO

DESIGN-BUILD AGREEMENT

THIS DESIGN-BUILD AGREEMENT (“Agreement”) is made on________________________, by and between the Board of County Commissioners of Adams County, Colorado, located at 4430 South Adams County Parkway, Brighton, Colorado 80601, hereinafter referred to as the “County,” and, Contractor Name, located at ___________________, hereinafter referred to as the “Design-Builder.”

PROJECT: (Include Project Number and Project Name) In consideration of the mutual covenants and obligations contained herein, County and Design-Builder agree as set forth herein.

ARTICLE 1

General

1.1 Duty To Cooperate. County and Design-Builder always commit to cooperate fully with each other and proceed on the basis of trust and good faith to permit each party to realize the benefits afforded under this Agreement.

1.2 Definitions. Terms, words, and phrases used in this Agreement shall have the meanings provided in Section 1.2 of the General Conditions of Contract.

1.3 Design Services. Design-Builder shall, consistent with applicable state licensing laws, provide design services, including architectural, engineering, and other design professional services required by this Agreement. Such design services shall be provided through qualified, licensed design professionals who are either

(i) employed by Design-Builder, or (ii) procured by Design-Builder from independent sources. Nothing in this Agreement is intended to create any legal or contractual relationship between County and any independent design professional.

ARTICLE 2

Design-Builder’s Services and Responsibilities

2.1 General Services.

2.1.1 The Design-Builder shall furnish all of the labor, machinery, equipment, materials, and supplies necessary to perform all of the work shown on the plans and described in the specifications, and in all other documents incorporated herein by reference. Design-Builder shall perform in accordance with the project scope and provisions of the solicitation, and, in addition to the terms set forth in this Agreement, the Design-Builder agrees to be bound by and to perform in accordance with the following specified documents attached hereto and incorporated herein: the SOLICITATION DOCUMENTS attached hereto and identified as: REQUEST FOR PROPOSAL, INVITATION TO BID, BID

SCHEDULE, BID BOND, CONSTRUCTION AGREEMENT, PERFORMANCE &

PAYMENT BONDS, INSURANCE, BIDDER'S CLIENT LIST, BIDDER'S CREDIT

LIST, NOTICE OF AWARD, ACCEPTANCE OF NOTICE OF AWARD, NOTICE

TO PROCEED, LETTER OF ACCEPTANCE, APPLICATION FOR EXEMPTION

CERTIFICATE, FIELD ORDER, CHANGE ORDER, APPLICATION FOR

PAYMENT, PARTIAL WAIVER OF LIEN, FINAL WAIVER OF LIEN,

CERTIFICATE OF FINAL COMPLETION, PROJECT DRAWINGS AND ANY

SPECIAL DETAILS.

When required by any document incorporated into this Agreement, certain specified materials shall not be incorporated in the work until tests have been made and the material found to be in accordance with the requirements of the specifications. All costs of initial testing shall be included in the price bid/proposal.

The Design-Builder will pay for repeated tests due to failure of initial tests. This Agreement does not guarantee to the Design-Builder any work except as authorized in accordance with this Agreement, nor does it create an exclusive agreement for services. Design-Builder agrees that it has satisfied itself as to the nature and location of the work, the character, quality, and quantity of the materials to be encountered, including subsurface conditions, the equipment and facilities needed to complete the work, the local conditions, and all other matters which can affect the work under this Agreement and Design-Builder assumes the risk should the conditions enumerated in this section differ from what Design-Builder anticipated.

2.1.2 County shall provide Design-Builder with County’s Project Criteria describing County’s program requirements and objectives for the Project as set forth in Exhibit ___. County’s Project Criteria shall include County’s use, space, price, time, site, performance, and expandability requirements. County’s Project Criteria may include conceptual documents, design specifications, design performance specifications, and other technical materials and requirements prepared by or for County.

2.1.3 If County’s project Criteria have not been developed prior to the execution of this Agreement, Design-Builder will assist County in developing County’s Project Criteria, with such service deemed to be an additional service for which additional compensation shall be paid by County to Design-Builder. If County has developed County’s Project Criteria prior to executing this Agreement, Design-Builder shall review and prepare a written evaluation of such criteria, including recommendations to County for different and innovative approaches to the design and construction of the Project. The parties shall meet to discuss Design-Builder’s written evaluation of County’s Project Criteria and agree upon what revisions, if any, should be made to such criteria.

2.2 Phased Services.

2.2.1 Phase 1 Services. Design-Builder shall perform the services of design, pricing, and other services for the Project based on County’s Project Criteria, as may be revised in accordance with Section 2.1 hereof, as set forth in Exhibit ___, Scope of Services. Design-Builder shall perform such services to the level of completion required for Design-Builder and County to establish the Contract Price for Phase 2, as set forth in Section 2.3 below. The Contract Price for Phase 2 shall be developed during Phase 1 on an “open-book” basis. Design-Builder’s Compensation for Phase 1 Services is set forth in Section 7.1 herein. The level of completion required for Phase 1 Services is defined in Exhibit ___, Scope of Services.

2.2.2 Phase 2 Services. Design-Builder’s Phase 2 services shall consist of the completion of design services for the project, the procurement of all materials and equipment for the Project, the performance of construction services for the Project, the start-up, testing, and commissioning of the Project, and the provision of warranty services, all as further described in the Contract Price Amendment. Upon receipt of Design-Builder’s proposed Contract Price for Phase 2, County may proceed as set forth in Article 2.3

2.3 Proposal. Upon Completion of the Phase 1 Services and any other Basis of Design Documents upon which the parties may agree, Design-Builder shall submit a proposal to County (the “Proposal”) for the completion of the design and construction for the Project for the Contract Price, which may be based on Lump Sum or Design-Builder’s Fee and Cost of the Work with an option for Guaranteed Maximum Prince (GMP).

2.3.1 The Proposal shall include the following unless the parties mutually agree otherwise:

2.3.1.1 The Contract Price that may be based on a Lump Sum or Design-Builder’s Fee and Cost of the Work, with an option for a GMP, which shall be the sum of:

i. Design-Builder’s Fee as defined in Section 7.4.1 hereof;

ii. The estimated Cost of the Work as defined in Section 7.5 hereof, inclusive of any Design-Builder’s Contingency as defined in Section 7.6.2 hereof;

2.3.1.2 The Basis of Design Documents, which may include, by way of example, County’s Project Criteria, which are set forth in detail and are attached to the Proposal;

2.3.1.3 A list of the assumptions and clarifications made by Design-Builder in the preparation of the 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;

2.3.1.4 The Scheduled Substantial Completion Date upon which the Proposal is based, to the extent said date has not already been established under Section 6.2.1 hereof, and a schedule upon which the Scheduled Substantial Completion Date is based and a Project Schedule for the Work;

2.3.1.5 If applicable, a list of Allowance Items, Allowance Values, and a statement of their basis;

2.3.1.6 If applicable, a schedule of alternate prices;

2.3.1.7 If applicable, a schedule of unit prices;

2.3.1.8 If applicable, a statement of Additional Services which may be performed but which are not included in the Proposal, and which, if performed, shall be the basis for an increase in the Contract Price and/or Contract Time(s);

2.3.1.9 If applicable a Savings provision;

2.3.1.10 If applicable, Performance Incentives;

2.3.1.11 The time limit for acceptance of the Proposal; and

2.3.1.12 The Authority Having Jurisdiction’s (“AHJ”) permit list, a list detailing the permits and governmental approvals that Design-Builder will bear responsibility to obtain.

2.3.2 Review and Adjustment to Proposal.

2.3.2.1 After submission of the Proposal, Design-Builder and County shall meet to discuss and review the Proposal. If County has any comments regarding the 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 County’s notice, make appropriate adjustments to the Proposal.

2.3.2.2 Acceptance of Proposal. If County accepts the proposal, as may be amended by Design-Builder, the Contract Price and its basis shall be set forth in an Amendment to this Agreement, when mutually agreed between the parties (Contract Price Amendment). Once the parties have agreed upon the Contract Price and County has issued a Notice to Proceed with Phase 2, Design-Builder shall perform the Phase 2 Services, all as further described in the Contract Price Amendment, as it may be revised.

2.3.2.3 Failure to Accept the Proposal. If County rejects the Proposal or fails to notify Design-Builder in writing on or before the date specified in the Proposal that it accepts the Proposal, the Proposal shall be deemed withdrawn and of no effect. In such event, County and Design-Builder shall meet and confer as to how the Project will proceed, with County having the following options:

i. County may suggest modifications to the Proposal, whereupon, if such modifications are accepted in writing by Design-Builder, the proposal shall be deemed accepted, and the parties shall proceed in accordance with Section 2.3.2.2 above;

ii. County may authorize Design-Builder to continue to proceed with the Work on the basis of reimbursement as provided in Section 7.1.2 hereof without a Contract Price, in which case all references in this Agreement to the Contract Price shall not be applicable;

iii. County may terminate this Agreement for convenience in accordance with Article 9 hereof; provided, however, in this event, Design-Builder shall not be entitled to the payment provided for in Section 9.2 hereof.

2.3.2.4 If County fails to exercise any of the above options, Design-Builder shall have the right to (a) continue with the Work as if County had elected to proceed in accordance with Item 2.3.2.3 ii above, and be paid by County accordingly, unless and until County notifies it is writing to stop the Work,

(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

9.2 hereof, or (c) may give written notice to County that it considers this Agreement completed. If County fails to exercise any of the options under Section 2.3.2.3 within ten (10) days of receipt of Design-Builder’s notice, then this Agreement shall be deemed completed. If County terminates the relationship with Design-Builder under Section 2.3.2.3 (iii), or if this Agreement is deemed completed under this paragraph, then Design-Builder shall have no further liability or obligations to County under this Agreement.

ARTICLE 3

Contract Documents

3.1 The Contract Documents are comprised of the following:

3.1.1 All written modifications, amendments, minor changes, and Change Orders to this Agreement;

3.1.2 The Contract Price Amendment referenced in Section 2.3.2.2 herein or the Proposal accepted by County in accordance with Section 2.3 herein.

3.1.3 This Agreement, including all exhibits but excluding, if applicable, the Contract Price Amendment;

3.1.4 The General Conditions of Contract;

3.1.5 Construction Documents prepared and approved in accordance with Section 2.4 of the General Conditions of Contract;

3.1.6 Exhibit ___, Scope of Services and Appendices in the Solicitation; and

3.1.7 Exhibit , Design-Builder’s Response.

ARTICLE 4

Interpretation and Intent

4.1 Design-Builder and County, at the time of acceptance of the Proposal by County in accordance with Section 2.3 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 County will discuss and resolve any identified conflicts or ambiguities prior to execution of the Agreement, or if applicable, prior to County’s acceptance of the Proposal.

4.2 The Contract Documents are intended to permit the parties to complete the Work and all obligations required by the Contract Documents within the Contract Times(s) for the Contract Price. The Contract Documents are intended to be complementary and interpreted in harmony so as to avoid conflict, with the 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 County’s acceptance of the Proposal, Design-Builder and County 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 3.1 hereof. (Note, the parties are strongly encouraged to establish in the Contract Price Amendment or Proposal (as applicable) the priority of the various documents comprising such exhibit or proposal.)

4.3 Terms, words, and phrases used in the Contract Documents, including this Agreement, shall have the meanings given them in the General Conditions of Contract, Section 1.2.

4.4 If County’s Project Criteria contain design specifications: (a) Design-Builder is entitled to reasonably rely on the accuracy of the information represented in the design specifications and their compatibility with other information set forth in County’s Project Criteria, including any design performance specifications; and

(b) Design-Builder shall be entitled to an adjustment in its 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.

4.5 The Contract Documents form the entire agreement between County 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 states in the Contract Documents.

ARTICLE 5

Ownership of Work Product

5.1 Work Product. All drawings, specifications, CAD, and other documents and electronic data, including such documents identified in the General Conditions of Contract, furnished by Design-Builder to County under this Agreement (“Work Product”) are deemed to be the property of County, and County shall retain the ownership and property interests herein, including, but not limited to any intellectual property rights, copyrights, and/or patents, subject to the provisions set forth below.

5.2 As owner of the above property, County may use the Work Product in connection with County’s occupancy of the Project, conditioned on County’s express understanding that its alteration of the Work Product without the involvement of Design-Builder is at County’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. County may not engage another contractor to build the Project based upon Design-Builder’s drawings, specifications, CAS, and other documents and electronic data without Design-Builder’s written consent.

ARTICLE 6

Contract Time

6.1 Date of Commencement. The Phase 1 Services shall commence within five (5) days of Design-Builder’s receipt of County’s Notice to Proceed unless the parties mutually agree otherwise in writing. The Work shall commence within five (5) days of Design-Builder’s receipt of County’s Notice to Proceed for Phase 2 Services (“Date of Commencement”) if the Proposal is accepted and the Contract Price Amendment is amended to this Agreement unless the parties mutually agree otherwise in writing.

6.2 Substantial Completion and Final Completion.

6.2.1 Substantial Completion of the entire work shall be achieved no later than (______________ calendar days after the Date of Commencement (“Scheduled Substantial Completion Date”).

6.3 Time is of the Essence. County and Design-Builder mutually agree that time is of the essence with respect to the dates and times set forth in the Contract Documents.

ARTICLE 7

Contract Price

7.1 Contract Price.

7.1.1 County shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract, the sum of _____________________________Dollars ($________________) for the Phase 1 Services, subject to adjustments made in accordance with the General Conditions of Contract. Unless otherwise provided in the Contract Documents, the Phase 1 Services compensation is deemed to include all sales, use, consumer, and other taxes mandated by applicable Legal Requirements.

7.1.2 For Phase 2 Services, County shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract a contract price (“Contract Price”) equal to the Lump Sum amount set forth in Section 7.2 hereof or in the Contract

Price Amendment, or equal to the Design-Builder’s Fee (as defined in Section 7.3 hereof) plus the Cost of the Work (as defined in Section 7.4 hereof), subject to any GMP established in Section 7.5 hereof or as set forth in the Contract Price Amendment and any adjustments made in accordance with the General Conditions of Contract.

7.2 Markups for Changes. If the Contract Price requires an adjustment due to changes in the Work, and the cost of such changes is determined under Section 9.4 of the General Conditions of Contract, the following markups shall be allowed on such changes:

7.2.1 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 incurred for that Change Order, plus any other markups set forth at Exhibit _______ hereto.

7.2.2 For deductive Change Orders, including deductive Change Orders arising from both additive and deductive items, the deductive amounts shall include:

7.2.3 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 at Exhibit ______ hereto applied to the direct costs of the net reduction.

7.3 Design-Builder’s Fee.

7.3.1 Design-Builder’s Fee shall be:

percent (_____________%) of the additional Cost of the Work, as adjusted in accordance with Section 7.3.2 below.

7.3.2 Design-Builder’s Fee will be adjusted as follows for any changes in the Work:

7.3.2.1 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 Changer Order, plus any other markups set forth at Exhibit __________ thereto.

7.3.2.2 For deductive Change Orders, including deductive Change Orders arising from both additive and deductive items, the deductive amounts shall include: 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 at Exhibit ______ hereto applied to the direct costs of the next reduction.

7.4 Cost of the Work.

7.4.1 The term Cost of the Work shall mean costs reasonably incurred by Design- Builder in the proper performance of the Work. The Cost of the Work shall include only the following:

7.4.1.1 Wages of direct employees of Design-Builder performing the Work at the Site or, with County’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.

7.4.1.2 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.

7.4.1.3 Wages or salaries of Design-Builder’s personnel stations 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 stations 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 stations at Design- Builder’s principal or branch offices shall include a markup to compensate Design-Builder for the Project-related overhead associated with such personnel.

7.4.1.4 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 Section 7.4.1.1 through 7.4.1.3 hereof.

7.4.1.5 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.

7.4.1.6 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.

7.4.1.7 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 best efforts to obtain recovery from the appropriate source and provide a credit to County if recovery is obtained.

7.4.1.8 Costs, including transportation, inspection, testing, storage, and handling of materials, equipment, and supplies incorporated or reasonably used in completing the Work.

7.4.1.9 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.

7.4.1.10 Costs for removal of debris and waste from the Site.

7.4.1.11 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.

7.4.1.12 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.

7.4.1.13 Premiums for insurance and bonds required by this Agreement or the performance of the Work.

7.4.1.14 All fuel and utility costs incurred in the performance of the Work.

7.4.1.15 Sales, use, or similar taxes, tariffs, or duties incurred in the performance of the Work.

7.4.1.16 Costs for permits, royalties, licenses, tests, and inspections incurred by Design-Builder as a requirement of the Contract Documents.

7.4.1.17 Costs incurred in preventing damage, injury, or loss in case of an emergency affection the safety of persons and property.

7.4.1.18 Accounting and data processing costs related to the Work.

7.4.1.19 Other costs reasonable and properly incurred in the performance of the Work to the extent approved in writing by County.

7.4.2 Non-Reimbursable Costs. The following shall be excluded from the Cost of the Work:

7.4.2.1 Compensation for Design-Builder’s personnel stationed at Design- Builder’s principal or branch offices, except as provided for in Sections 7.4.1.1., 7.4.1.2, and 7.4.1.3 hereof.

7.4.2.2 Overhead and general expenses, except as provided for in Section

7.4.1 hereof, or which may be recoverable for changes to the Work.

7.4.2.3 The cost of Design-Builder’s capital used in the performance of the Work.

7.4.2.4 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.

7.5 The Guaranteed Maximum Price.

7.5.1 Design-Builder guarantees that it shall not exceed the GMP of ________________________ Dollars ($___________________). Documents used as basis for the GMP shall be identified as the Contract Price Amendment to this Agreement. 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, as set forth in the Contract Price Amendment (“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 line item and the GMP may be adjusted in accordance with the Contract Documents, including but not limited to the markup for Change Orders set forth in Section 7.2 herein.

7.5.2 The GMP includes a Contingency in the amount of

__________________Dollars ($_______) which is available for Design-Builder’s exclusive use of 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; of (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 County for any reason, including changes in scope or any other item which would enable Design-Builder to increase the GMP under the Contract Documents.

Design-Builder shall provide County notice of all anticipated charges against the

Contingency and shall provide County as party of the monthly status report required by Section 2.1.2 of the General Conditions of Contract as 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 any 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.

7.5.3 Savings.

7.5.3.1 If the sum of the actual Cost of the Work and Design-Builder’s Fee is less than the GMP, as such GMP may have been adjusted over the course of the Project, the difference (“Savings”) shall be treated as a deducted change order from the contract value.

7.5.3.2 Savings shall be calculated and paid as part of Final Payment under Section 8.4 hereof, with the understanding that to the extent Design-Builder incurs costs after Final Completion that would have been payable to Design- Builder as a Cost of the Work, the parties shall recalculate the Savings considering the costs so incurred, and Design-Builder shall be paid by County accordingly.

7.6 Allowance Items and Contingency Values.

7.6.1 Any and all Items covered by Contingency, as well as their corresponding Allowance Values, are set forth in the Contract Price Amendment or the Proposal.

7.6.2 Design-Builder and County have worked together to review the Items covered by Contingency and Contingency Values based on design information then available to determine that the Contingency Values constitute a reasonable estimate of the Items covered by Contingency. Design-Builder and County will continue working closely together during the preparation of the design to develop Construction Documents consistent with the Contingency Values. Nothing here is intended in any way to constitute a guarantee by Design-Builder that the Items covered by Contingency in question can be performed for the Contingency Value.

7.6.3 No work shall be performed on any Items covered by Contingency without Design-Builder first obtaining in writing advanced authorization to proceed from County. County agrees that if Design-Builder is not provided written authorization to proceed by the date set forth in the Project schedule, due to no fault of the Design-Builder, Design-Builder may be entitled to an adjustment of the Contract Times(s) and Contract Price.

7.6.4 The Contingency Value includes the direct cost of labor, materials, equipment, transportation, taxes, and insurance associated with the applicable 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 notwithstanding the actual amount of the Items covered by Contingency.

7.6.5 Whenever the actual costs for an Item covered by Contingency are more than or less than the stated Contingency Value, the Contract Price shall be adjusted accordingly by Change Order, subject to Section 7.2. The amount of the Change Order shall reflect the difference between actual costs incurred by Design- Builder for the particular Item covered by Contingency and the Contingency Value.

ARTICLE 8

Procedure for Payment

8.1 Payment for Preliminary Services. Design-Builder and County agree upon the following method for partial and final payment to Design-Builder for the services hereunder:

8.2 Contract Price Progress Payments.

8.2.1 Design-Builder shall submit to County on the agreed upon 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.

8.2.2 County shall make payment within thirty (30) days after County’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.

8.2.3 If Design-Builder’s Fee under Section 7.4 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 County shall be proportional to the percentage of the Work completed, less payments previously made on account of Design- Builder’s Fee.

8.3 Retainage on Progress Payments.

8.3.1 If the Agreement is for one hundred fifty thousand dollars ($150,000) or more, the County shall withhold five percent (5%) of monthly partial payments until the contract is completed satisfactorily and finally accepted by the County. For Agreements less than one hundred fifty thousand dollars ($150,000), the County may withhold more than five percent (5%). All money withheld pursuant to this section shall be retained by the County no more than thirty (30) days after the project has been completed to satisfaction and has been finally accepted by the County. If the County finds that satisfactory progress is being made in all phases of the Agreement, the County may, upon written request of the Design-Builder, authorize payment from the withheld percentage. Before such payment is made, the County shall determine that satisfactory and substantial reasons exist for the payment and shall require written approval from any surety furnishing bonds for the work performed under the terms of this Agreement. This Agreement is subject to C.R.S. § 38-26-101, et. seq.

8.4 Final Payment. Design-Builder shall submit its Final Application for Payment to

County in accordance with Section 6.6 of the General Conditions of Contract.

County 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 sixty (60) days after compliance with County’s statutory publication obligation, provided that Design-Builder has satisfied the requirements for final payment set forth in Section 6.6 of the General Conditions of Contract.

8.5 Record Keeping and Finance Controls. Design-Builder acknowledges that this

Agreement is to be administered on an “open book” arrangement relative to Costs of the Work. Design-Builder shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management, using accounting and control systems in accordance with generally accepted accounting principles and as may be provided in the Contract Documents. During the performance of the Work and for a period of three (3) years after Final Payment, County and County’s accountants shall be afforded access to, and the right to audit from time to time, upon reasonable notice, Design-Builder’s records, books, correspondence, receipts, subcontracts, purchase orders, vouchers, memoranda, and other data relating to the Work, all of which Design-Builder shall preserve for a period of three (3) years after Final Payment. Such inspection shall take place at Design-Builder’s offices during normal business hours unless another location and time is agreed to by the parties. Any multipliers or markups agreed to by the County and Design-Builder as part of this Agreement are only subject to audit to confirm that such multiplier or markup has been charged in accordance with this Agreement, but the composition of such multiplier or markup is not subject to audit.

Any lump sum agreed to by the County and Design-Builder as part of this Agreement is not subject to audit.

8.6 Fund Availability: The County has appropriated sufficient funds for this Agreement for the current fiscal year. Payment pursuant to this Agreement, whether in full or in part, is subject to and contingent upon the continuing availability of County funds for the purposes hereof. In the event funds become unavailable, as determined by the County, the County may immediately terminate this Agreement or amend it accordingly. To the extent allowed by the Colorado Taxpayer Bill of Rights and Title 29 of the Colorado Revised Statutes, the County represents that it has appropriated an amount of money for this Agreement that is at least equal to the contract price.

ARTICLE 9

Termination of Convenience

9.1 Upon ten (10) days’ written notice to Design-Builder, County may, for its convenience and without cause, elect to terminate this Agreement. In such event, County shall pay Design-Builder for the following:

9.1.1 All services and Work performed through the date of termination;

9.1.2 The reasonable costs and expenses attributable to such termination, including demobilization costs.

9.2 If County terminates this Agreement pursuant to Section 9.1 above and proceeds to design and construct the Project through its employees, agents, or third parties, County’s rights to use the Work Product shall be as set forth in Section 5.2 hereof.

ARTICLE 10

Bond and Insurance

10.1 Insurance. Design-Builder and County shall procure the insurance coverages set forth in the Insurance Exhibit Attached hereto and in accordance with Article 5 of the General Conditions of Contract.

10.2 Bonds and Other Performance Security. Design-Builder shall secure a

Performance Bond and a Payment Bond each in the amount of one hundred percent (100%) of the Agreement price with a corporate surety approved by the County and licensed to do business in the State of Colorado, said bonds to be released at the sole discretion of the County.

ARTICLE 11

Other Provisions

11.1 List of Exhibits and documents incorporated herein:

Exhibit ___ – County’s Solicitation with Scope of Services and Appendices Exhibit ___ – Design-Builder’s Response General Conditions of Contract Between County and Design-Builder

11.2 Notice: Any notices given under this Agreement are deemed to have been received and to be effective:

11.2.1 Three (3) days after the same shall have been mailed by certified mail, return receipt requested; and,

11.2.2 Immediately upon hand delivery; or,

11.2.3 Immediately upon receipt of confirmation that an E-mail was received.

11.2.4 For the purposes of this Agreement, any and all notices should be addressed to the contacts listed below:

Department: Adams County (department name) Contact:

Address:

City, State, Zip:

Phone:

E-mail:

Department: Adams County Purchasing Contact:

Address: 4430 South Adams County Parkway City, State, Zip: Brighton, Colorado 80601 Phone:

E-mail:

Department: Adams County Attorney’s Office Address: 4430 South Adams County Parkway City, State, Zip: Brighton, Colorado 80601 Phone: 720.523.6116

Contractor: Company Name Contact:

Address:

City, State, Zip:

Phone:

E-mail:

THE REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY

IN WITNESS WHEREOF, the Parties have caused their names to be affixed hereto:

ADAMS COUNTY COLORADO

BOARD OF COUNTY COMMISSIONERS

Chair Date

ATTEST:

Josh Zygielbaum, Clerk and Recorder __________________________________

Deputy Clerk

APPROVED AS TO FORM: __________________________________

Adams County Attorney’s Office

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DESIGN-BUILDER’S SIGNATURE PAGE

Signature Date

Printed Name Title

NOTARIZATION OF CONTRACTOR’S SIGNATURE:

COUNTY OF _________________________ )

STATE OF ____________________________ )SS.

Signed and sworn to before me this ____ day of _________________________, 20___ , by ________________ __________________, Notary Public

My commission expires on: ________________________________________

GENERAL CONDITIONS OF CONTRACT AF-2024.100

GENERAL CONDITIONS OF CONTRACT

BETWEEN A D A M S COUNTY

AND DESIGN-BUI LDER

ARTICLE 1

General Conditions

1.1 Mutual Obligations

1.1.1 County and Design-Builder always commit to cooperate fully with each other and proceed based on trust and good faith, to permit each party to realize the benefits afforded under the Contract Documents.

1.2 Basic Definitions

Whenever used in the Contract Documents, the following terms shall have the following meanings, applicable to both the singular and plural:

1.2.1 Agreement refers to the executed contract between County and Design- Builder.

1.2.2 Basis of Design Documents are as follows: Agreement, and those documents specifically listed in, as applicable, the GMP Exhibit or GMP Proposal as being the "Basis of Design Documents".

1.2.3 Bonds: Performance Bonds, Payment Bonds, or other instruments of security, furnished by the Design-Builder and its Surety according to the Contract.

1.2.4 Change Order. A written modification of the Contract, issued after award to the Design Builder, authorizing an addition, deletion, or revision in the Work within the general scope of the Contract or authorizing an adjustment in the Contract Price or Contract Time, mutually agreed upon between the County and the Design-Builder.

1.2.5 County: Adams County.

1.2.6 Completion Date: The date the Contract specifies the Work is to be completed.

1.2.7 Construction Documents are the documents, consisting of Drawings and Specifications, to be prepared or assembled by the Design-Builder consistent with the Basis of Design Documents unless a deviation from the Basis of Design Documents is specifically set forth in a Change Order executed by both the County and Design- Builder, as part of the design review process contemplated by Section 2.4 of these General Conditions of Contract.

1.2.8 Contract: The Contract consisting of the Agreement and the incorporated Contract Documents.

1.2.9 Contract Coordinator/Procurement Specialist: The authorized representative of the County designated to act for the County in processing the Award of Contracts, maintaining centralized official Contract documentation, providing administrative liaison/coordination, legal liaison/coordination via County Attorney.

1.2.10 Contract Documents: All the documents expressly incorporated into the Agreement including but not limited to Addenda, Change Orders, County Project Final Acceptance, Drawings, General Conditions, Insurance Certificates, Notice of Construction Acceptance, Notice to Proceed, Notice of Substantial Completion, Performance and Payment Bonds, Special Conditions, Performance requirements, equipment specifications and other performance requirements of the County. The Contract Documents include the GMP proposal documents once accepted by both parties.

1.2.11 Day or Days shall mean calendar days unless otherwise specifically noted in the Contract Documents.

1.2.12 Design-Build Proposal shall mean the proposal the Design-Builder submits stating the target prices for the Work to be performed.

1.2.13 Design-Builder. The person, company, firm, or corporation contracting with the County to construct, erect, alter, install, or repair any work or construction project.

1.2.14 Design-Build Team is comprised of the Design-Builder, the Design Consultant, and key Subcontractors identified by the Design-Builder.

1.2.15 Design Consultant is a qualified, licensed design professional who is not an employee of Design-Builder, but is retained by Design-Builder, or employed or retained by anyone under contract with Design-Builder, to furnish design services required under the Contract Documents. A Design Sub-Consultant is a qualified, licensed design professional who is not an employee of the Design Consultant but is retained by the Design Consultant or employed or retained by anyone under contract to Design Consultant, to furnish design services required under the Contract Documents.

1.2.16 Field Order. A written order directing a change in the Project issued by the Project Manager to the Design-Builder during the project that does not change the scope, schedule, or Project budget.

1.2.17 Final Completion is the date on which all Work is complete in accordance with the Contract Documents, including but not limited to, any items identified in the punch list.

1.2.18 Fixed Fee does not vary with actual cost but may be adjusted because of any subsequent changes in the scope of work or services to be performed under the Agreement.

1.2.19 Force Majeure Events are those events that are beyond the control of both Design-Builder and County, including the events of war, floods, labor disputes, earthquakes, epidemics, and other acts of God.

1.2.20 General Conditions of Contract refer to this document.

1.2.21 GMP Exhibit means Exhibit attached to the Agreement.

1.2.22 GMP Proposal means that proposal developed by Design-Builder in accordance with Section 7.5 of the Agreement.

1.2.23 Hazardous Conditions are any materials, wastes, substances, and chemicals deemed to be hazardous under applicable Legal Requirements, or the handling, storage, remediation, or disposal of which are regulated by applicable Legal Requirements.

1.2.24 Inspector. The Authority Having Jurisdiction's (“AHJ”) authorized representative assigned to make detailed observation of the Work performed by the Design-Builder.

1.2.25 Legal Requirements are all applicable federal, state, and local laws, codes, ordinances, rules, regulations, orders and decrees of any government or quasi-government entity having jurisdiction over the Project or Site, the practices involved in the Project or Site, or any Work.

1.2.26 Non-Professional Engineering Services: Non-professional engineering services refers to any services not requiring professional engineering licensure and/or not related to services requiring professional engineering licensure (i.e., services not covered by professional liability insurance). An example of this would be the construction work associated with the final design and construction services.

1.2.27 Notice of Construction Acceptance: The written acknowledgment that construction is complete which starts the warranty period.

1.2.28 Notice of Final Acceptance: The written acceptance of Work performed under the Contract, following satisfactory conclusion of the warranty period.

1.2.29 Notice to Proceed: The written notice by the County to the Design-Builder authorizing it to proceed with the Work which establishes the Contract commencement.

1.2.30 Notice or Certificate of Substantial Completion: The written notice of the date, as certified by the Project Manager, when the Project or a specified part is sufficiently completed, according to the Contract Documents, so the Project or specified part can be used for the intended purposes.

1.2.31 Owner. Adams County, Colorado, acting by and through its Board of County Commissioners, or other duly authorized representative.

1.2.32 Project: The undertaking to be performed as provided in the Contract.

1.2.33 Project Manager. The authorized representative of the County, known as the Project Manager, assigned to the Project to ensure that all Work is performed according to the terms and conditions of the Agreement.

1.2.34 Site is the land or premises on which the Project is located.

1.2.35 Shop Drawings: All Drawings, diagrams, illustrations, brochures, schedules, and other data prepared by the Design-Builder, a Subcontractor, manufacturer, Supplier, or distributor which illustrate how specific portions of the Work will be fabricated or installed.

1.2.36 Special Conditions: Additions to the General Conditions containing instructions and conditions particular to an individual Project.

1.2.37 Subcontractor is any person or entity retained by Design-Builder as an independent contractor to perform a portion of the Work and shall include suppliers.

1.2.38 Sub-Subcontractor is any person or entity retained by a Subcontractor as an independent contractor to perform any portion of a Subcontractor's Work and suppliers.

1.2.39 Substantial Completion or Substantially Complete means the date on which the Work, or an agreed upon portion of the Work, is sufficiently complete as certified by the Project Manager in accordance with the Contract Documents so that County can occupy and use the Project or a portion thereof for its intended purposes.

1.2.40 Supplier. Any person or organization who supplies materials or equipment for the Work, including that fabricated to a special design, but who does not perform labor at the site.

1.2.41 Surety: The entity which is bound with and for the Design-Builder for the Performance of the Work and for the Labor and Material Payment Bond.

1.2.42 Work is comprised of all Design-Builder's design, construction and other services required by the Contract Documents, including procuring, and furnishing all materials, equipment, services, and labor reasonably inferable from the Contract

1.2.43 Abbreviations: When the following abbreviations appear in the documents, they are defined as follows:

ACI American Concrete Institute

AISC American Institute of Steel Construction

ANSI American National Standards Institute

ASA American Standards Association

ASCE American Society of Civil Engineers

ASME American Society of Mechanical Engineers

ASTM American Society for Testing and Materials

AWS American Welding Society

AWWA American Water Works Association

EPA Environmental Protection Agency

GMP Guaranteed Maximum Price

OSHA Occupational Safety & Health Administration

WW-P Federal Specifications Prefix

ARTICLE 2

Design-Builder's Services and Responsibilities

2.1 General Services.

2.1.1 Design-Builder's Representative shall be reasonably available to County and shall have the necessary expertise and experience required to supervise the Work.

Design-Builder's Representative shall communicate regularly with County and shall be vested with the authority to act on behalf of Design-Builder. Design-Builder's Representative may be replaced only with the mutual agreement of County and Design-Builder.

2.1.2 Design-Builder shall provide County with a monthly status report detailing the progress of the Work, including (i) whether the Work is proceeding according to schedule, (ii) whether discrepancies, conflicts, or ambiguities exist in the Contract Documents that require resolution, (iii) whether health and…