CMGC Preconstruction Sample Civic Center.pdf

DocuSign Envelope ID: 5075F292-FF66-4773-B865-62620C0A7E90

Entity Name Project

PRECONSTRUCTION SERVICES AGREEMENT

THIS AGREEMENT is made between the CITY COMMERCE CITY, a home rule and municipal corporation of the State of Colorado (“City”), and [NAME], with an address of [ADDRESS] (“Contractor”), jointly (“the Parties.”)

RECITALS

1. The [PROJECT NAME] construction project consists of providing Design Phase and Construction Phase Services (CM/GC) for the [PROJECT NAME] located at [ADDRESS].

2. In order to complete the Project in a timely, efficient and cost effective manner, the City desires to engage a highly qualified and experienced contractor to expeditiously perform preconstruction services including and without limitation, scheduling, cost estimating, constructability review, value engineering, construction packaging and sequencing, subcontractor canvassing and all other preconstruction services necessary to complete a satisfactory final design and construction pricing for the Project.

3. In addition to performing preconstruction services, the Contractor will deliver to the City a Guaranteed Maximum Price proposal (“GMP Proposal”) and fixed Project completion schedule proposal (the “Performance Period” or “Schedule”) by which the Contractor will agree to perform all of the construction services and other work required to complete the Project for a guaranteed maximum price.

4. In accordance with the City policies, the City advertised a Request for Proposal (“RFP”) (Incorporated by reference as Exhibit A) seeking highly qualified contractors to provide preconstruction and construction services for the Project.

5. The Contractor was selected as the first ranked proposer to perform such services for the City based on Contractor’s Proposal, dated __________________.

6. The City and Contractor now wish to enter into this Agreement to provide preconstruction services. The City may, in its sole discretion, elect to enter into a CM/GC Construction Contract with Contractor at a later date.

7. The Contractor represents that it has the present capacity and is experienced and qualified to perform the required professional and related services as provided for in this Agreement.

8. The Contractor will perform all such services as an independent contractor.

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the parties agree as follows:

1.0 PROJECT AND BUDGET:

1.1 The Project.

1.1.1 The “Project” includes the construction/reconstruction and/or expansion of the

[PROJECT NAME] [PROJECT DESCRIPTION].

1.1.2 The “Project Site”, “Site” and “Limits of Construction for the Project” are:

Attached as Exhibit __.

1.2 Project Format. The terms, conditions and obligations for the Contractor’s performance on this Project are contained herein or in documents referenced herein or attached hereto and shall be collectively referred to as the “Agreement.” In the performance of this Agreement, the Contractor acknowledges and accepts that time is critical for Project delivery. The City has elected to utilize a Construction Manager/Contractor (“CM/GC”) Project delivery method. The Contractor is familiar with this approach and understands that the CM/GC method is a specialized and rigorous delivery approach requiring maximum cooperation between all parties. As a consequence of the delivery approach, the Contractor acknowledges and accepts the following: (1) that the complete services to be rendered by the Contractor, the organizational and process inter-relationships governing construction and the cost, schedule and sequencing of construction may not yet have fully been defined; (2) that portions of the Project could have their design completed as separate packages and under construction before other portions of the Project are fully designed; and (3) that the Contractor’s continuing performance on this Project is contingent upon the Contractor formulating, as the Project design progresses, and submitting an acceptable GMP (or multiple GMP packages) and Performance Period proposal (the “GMP Proposal”) for the complete construction of the Project.

1.3 Budget. The Contractor acknowledges that there are limited funds available to design and construct the Project. The City’s preconstruction budget for this Project is:

_______________________________ DOLLARS ($000,000.00) (the “Project Budget”) and is subject to increase or decrease at the sole discretion of the Executive Director of the [PROJECT NAME] [PROJECT DESCRIPTION], prior to establishing a GMP for the Construction Services Phase of the Project.

2.0 ENGAGEMENT AND COORDINATION:

2.1 Engagement. The City engages the Contractor with respect to the furnishing of preconstruction services in connection with the design and construction of the Project and the Contractor accepts such engagement upon, subject to and in accordance with the terms, conditions and provisions of this Agreement.

2.2 Director of the Department of Public Works. The City's Director of the Department of

Public Works (“Director”) is the City's representative responsible for authorizing and approving the work performed under this Agreement. The Director hereby designates the Project Manager as the Director’s authorized representative for the purpose of issuing a written Notice to Proceed and administering, coordinating and initially approving the services performed by the Contractor under this Agreement. The Project Manager shall be responsible for the day-to-day administration, coordination and approval of services performed by the Contractor, except for approvals that are specifically identified in this Agreement as requiring the Director’s approval.

2.3 Relationship. The Contractor accepts the relationship of trust and confidence established between the Contractor and the City by this Agreement and shall furnish its best skill and judgment and cooperate with the Director and the designees, including the City Engineer and the Project Manager, and the other City consultants and contractors in furthering the interests of the City throughout the duration of this Agreement.

2.4 Design Consultant. The City has a separate agreement with the Design Consultant to design the Project and to provide limited design support during the construction. Both the Contractor and the Design Consultant shall be given direction by the City, or the City’s designated and authorized representatives. The relationship between the Contractor and the Design Consultant is intended to be cooperative and proactive, both participating on the same team with the City.

2.5 Construction Team. The Contractor, the City and the Design Consultant (the “Construction Team”) shall cooperate and coordinate to complete the design and provide preconstruction services. The Contractor shall provide leadership to the Construction Team on matters relating to construction.

2.6 Coordination and Cooperation.

2.6.1 The Contractor agrees to cooperate and coordinate fully with the City and the Designer in the design aspects of the Project to keep within the City monetary and time limitations.

2.6.2 With the exception of those notices that must be directed to the Director, all written communication by the Contractor to or with the City shall be forwarded through the Project Manager. In addition, all communication from the City to or with the Contractor shall be forwarded through the Project Manager. All written communication between the Contractor and the Design Consultant, other City representatives, the User Agency, City consultants or any governmental entity or third party will require that copies or notice thereof will be provided by the Contractor to the Project Manager.

2.6.3 The Contractor shall, as a continuing work item under this Agreement, facilitate communications regarding its performance hereunder between the Design Consultant, the Project Manager, the City’s Owner’s Representative, City agencies, and any City consultants,. In addition, the Contractor shall conduct and coordinate its efforts under this Agreement with all involved entities including the Design Consultant, the User Agency, other City representatives, other involved City agencies and any involved government and regulatory entities. The Contractor shall document all Contractor conducted meetings and work sessions and distribute minutes or notes of such meetings to the Project Manager, in a format approved by the Project Manager.

3.0 REPRESENTATIONS: The Contractor represents and covenants to the City that:

3.1 The Contractor’s team members shall include adequate personnel qualified and experienced in the construction of facilities similar to the Project in time constraints, complexity and cost.

3.2 The Contractor will thoroughly review and will become fully familiar with the Project scope, requirements and constraints including: (1) the goals and objectives of the Project; (2) User Agency needs and requirements; (3) the Design Consultants’ work effort to date, agreement and any referenced documents; (4) the schematic design drawings and specifications and any associated information or materials; (5) the Project site (the “Site”), local conditions and all related limitations and constraints; and

(6) its budget assumptions and scheduling constraints. The Contractor accepts the same and affirmatively states that the Project, as expressed by the Project scope, requirements, and constraints at the time of execution of this Agreement, is a reasonable and constructible conceptual Project, incorporating a reasonable and workable delivery approach and schedule. Further the Contractor will promptly notify the City in the event the Project, as developed during the Preconstruction portion of the project, is not reasonable or constructible, given the schedule, budget, and other Project requirements.

3.3 The Contractor agrees that all of the services and work performed by the Contractor under this Agreement shall be performed in accordance with the standards of care, skill and diligence provided by competent contractors who perform services of a similar nature to the services described in this Agreement.

4.0 PERSONNEL:

4.1 Those persons listed in Exhibit __ are the Contractor’s key team members (“Key Personnel”) and the City desires that they be and remain assigned to the Project.

4.2 It is the intent of the parties hereto that all Key Personnel be engaged to perform their specialty for all such services required by this Agreement, and that the Contractor’s and any subcontractor Key Personnel be retained for the duration of this Agreement to the extent practicable and to the extent that such services maximize the quality of work performed hereunder.

4.3 If any of the Key Personnel become unavailable for reasons beyond the control of the

Contractor, then the Contractor, subject to the Project Manager’s approval, shall promptly appoint a replacement. The Contractor shall provide the Project Manager with complete information on each replacement, including a current resume, and shall have the opportunity to interview any such replacement.

4.4 If during the term of this Agreement, the Project Manager determines that the performance of approved Key Personnel for the Contractor or a subcontractor is not acceptable, the Project Manager shall notify the Contractor and give the Contractor a reasonable period of time to correct such performance.

Thereafter, the Project Manager may require the Contractor to reassign or replace such Key Personnel. If the Project Manager notifies the Contractor that certain of its Key Personnel or those of a subcontractor should be replaced, the Contractor will use its best efforts to replace and require its subcontractor to replace them within ten (10) days from the date of the Manager's notice.

4.5 Neither the Contractor nor any subcontractor shall have interests which are in conflict with interests of the City, including connection with or to the sale or promotion of equipment or material which may be used on the Project, and the Contractor shall make written inquiry of all of its subcontractors concerning the existence of or potential for such conflict. In unusual circumstances, and at the City’s sole discretion, the City may grant a written waiver for the particular consultant or subcontractor.

5.0 BASIC SERVICES: The Contractor’s Basic Services performed under this Agreement shall include all services and work effort required: (1) to assist in providing a complete and constructible “Project Design;” (2) to advise the Design Consultants in providing a Project design which, if constructed in accordance with the design, will satisfy all Project objectives, requirements and constraints set forth herein;

and (3) assist the Design Consultant in maintaining the Budget. Such required services and work effort will include, without limitation, cost estimating, bid schedule refinement and project schedule verification constructability review, value engineering and development of deductive and additive alternates, scheduling, construction sequencing and bid packaging, bidding and subcontracting. Contractor’s Basic Services under this agreement includes all services and work set forth in Exhibits __, Scope and Exhibit __, Proposal. All of the duties, obligations, services and work specified in the terms, provisions and conditions of this Agreement as well as all other Preconstruction services normally and customarily performed by a Construction Manager on a Project of this size and nature shall comprise the Contractor's "Basic Preconstruction Services."

6.0 COMPENSATION: In accordance with the terms and conditions of this Agreement, the City agrees to pay and the Contractor agrees to accept, as full and complete compensation for all services required by this Agreement to complete the Basic Services, the following compensation:

6.1 Basic Services.

The Contractor’s Basic Services shall consist of all preconstruction and related work and services set forth in Exhibits E and B (Basic Services and Proposal). The Contractor shall be compensated for all such services performed on a lump sum basis. The maximum amount payable for all Basic Services shall be the lump sum amount of __________________________________________ DOLLARS ($000,000.00).

Compensation shall be paid to the Contractor monthly, based upon pay applications and progress reports accepted and approved by the Project Manager. Upon successful completion of Pre-Construction Services, the City may in its sole discretion elect to execute a CM/GC Construction Contract with Contractor.

6.2 Reimbursable Expenses. All expenses shall be included in the basic services fee and will not be separately reimbursed hereunder.

6.3 Maximum Contract Amount. The “Maximum Contract Amount” to be paid by the City to the Contractor under this Agreement shall not exceed the sum of______________________ DOLLARS ($000,000.00).

6.4 Funding. It is expressly understood and agreed by the Contractor that the Contractor is undertaking this performance for a “not to exceed”, maximum fee for the Project. It is further understood and agreed by the Contractor that the total obligation of the City for all or any part of its payment obligations hereunder, whether direct or contingent, shall in no event extend beyond payment of the lesser of the amounts duly and lawfully encumbered for the purposes of the Agreement or the Maximum Contract

Amount set forth above. The City has, as of the date first set forth above, duly and lawfully encumbered the sum of DOLLARS ($000,000.00) for the purposes of this Agreement. With respect to all such performance and funding, the Contractor understands and agrees that the provision of any services which would cause the total amount payable to Contractor to exceed the amount of previously encumbered funds, is strictly prohibited. In the event the continuation of services by the Contractor would cause the amount payable to Contractor to exceed the amount payable under Sections 6.1 and 6.2, the Contractor agrees to give the Project Manager at least four (4) weeks’ written notice of the exhaustion of available funds. In the event additional funds are not made available within such four (4) week period, the Contractor agrees to stop providing services until such time as additional funds are made available and encumbered for the purposes of this Agreement. It shall be the responsibility of the Contractor to verify that the amounts already encumbered are sufficient to cover the entire cost of such work. Work or services performed in excess of the amount encumbered or outside the scope of authorized work or services is undertaken or performed in violation of the terms of this Agreement and, as such, at the Contractor’s own risk and sole cost and expense. The City reserves the right to suspend work and the Contractor will not be compensated monetarily for the time delay.

6.5 Payment of Invoices. The Contractor shall prepare and submit to the Project Manager project reports and monthly invoices of all amounts due the Contractor for the preceding period with time records (payment will be made based upon percentage complete) under the provisions of this Article. The Project Manager or appointed designee will review and either approve or disapprove in whole or in part each properly completed invoice prior to submission for payment by the City. The Project Manager or appointed designee shall promptly notify the Contractor, in writing, of the basis for any partial or complete disapproval and return any submitted documentation, as required. No charges shall be incurred under this Agreement and no payments shall come due to the Contractor until such time as the City has confirmed to its satisfaction that the work and services have been performed in accordance with the terms and conditions of this Agreement.

6.6 Withholdings and Final Payment. The City may withhold, in its sole discretion, payment to the Contractor of any sum or a portion of any sum invoiced for failure or refusal of the Contractor to reasonably satisfy or comply with any material obligation, term, condition or requirement of this Agreement and may deduct, such other amounts as provided for elsewhere in this Agreement. Prior to withholding, however, the City shall provide the Contractor with five (5) days notice of any such failure or refusal and an opportunity to commence to cure that will not exceed such five (5) day period. All sums withheld pursuant to this paragraph shall be released only upon a showing, satisfactory to the Project Manager, that the failure or refusal resulting in the withholding has been removed, resolved, or cured by the Contractor.

7.0 TERM AND TERMINATION:

7.1 Term. The Term of this Agreement shall commence on _____________________, and expire on _______________, unless sooner terminated as provided in this Agreement.

7.2 Termination for Default for Nonperformance. Failure or refusal of the Contractor to perform any material obligation under this Agreement shall constitute default. In the event of any default, in addition to any other remedy available to the City, after providing ten (10) days’ prior written notice of and opportunity to cure such default, this Agreement may be terminated by the City if such default is not cured to the satisfaction of the City. No new performance under the Agreement will be undertaken after the date of receipt of any notice of termination (the effective date of termination). In the event of such termination, the Contractor will be paid for those services satisfactorily performed in accordance with the requirements of this Agreement up to the effective date of termination. Such termination shall not waive any other legal remedies available to the City.

7.3 Termination for Default or Bankruptcy. In the event that either party shall cease conducting business in the normal course, become insolvent, make a general assignment for the benefit of creditors, suffer or permit the appointment of a receiver for its business or assets or shall avail itself of, or become subject to, any proceeding under the Federal Bankruptcy Act or any other statute of any state relating to insolvency or the protection of rights of creditors then, at the option of the other party, this Agreement shall terminate and be of no further force and effect, and any property or rights of such other party, tangible or intangible, shall forthwith be returned to it.

7.4 Termination for Default for Criminal Conduct. The City may, by written Notice of Default to the Contractor, terminate the whole or any part of this Agreement in the event the Contractor or any of its officers are convicted, plead nolo contendere, or enter into a formal agreement for deferred prosecution or sentencing, in which they admit guilt, enter a plea of guilty, or otherwise admit culpability to criminal offenses of bribery, kickbacks, collusive bidding, bid-rigging, antitrust, fraud, undue influence, theft, racketeering, extortion, violation of the Racketeer Influenced and Corrupt Organizations Act (R.I.C.O.) or substantially similar state statute or any offense of a similar nature, in connection with the Contractor’s business.

7.5 Termination for Convenience of City. The City may terminate this Agreement for the City’s convenience and without cause at any time by giving the Contractor ten (10) days’ written notice of such termination. In the event of such termination, the Contractor shall cease performance under this Agreement upon receipt of such written notice of termination and the Contractor will be paid only for its costs incurred in accordance with the provisions of this Agreement, up to the date of termination specified in the notice of termination.

7.6 Recovery of Termination Costs Strictly Precluded. The City shall not be liable for any costs incurred by the Contractor after the effective date of termination. Such non-recoverable costs shall include, but are not limited to anticipated profits, post- termination employee salaries, post-termination administrative expenses, or any other damages, costs or expenses which are not authorized under this Article. Following such termination, the Contractor will submit a final invoice to the City for the amount which represents the compensation actually due and owing for the Contractor’s performance prior to the effective date of termination and for which the Contractor has not previously been compensated. Upon approval and payment of this final invoice by the City, the City shall be under no further obligation to the Contractor for payment under this Agreement and all other claims shall be waived.

8.0 INSURANCE AND INDEMNITY:

8.1 Insurance. Contractor agrees to secure, at or before the time of execution of this

Agreement, the following insurance covering all operations, goods or services provided pursuant to this Agreement. Contractor shall keep the required insurance coverage in force at all times during the term of the Agreement, or any extension thereof, during any warranty period, and for eight (8) years after termination of the Agreement. The required insurance shall be underwritten by an insurer licensed or authorized to do business in Colorado and rated by A.M. Best Company as “A-VIII” or better. Each policy shall contain a valid provision or endorsement requiring notification to the City in the event any of the required policies be canceled or non-renewed before the expiration date thereof. Such written notice shall be sent to the parties identified in the Notices section of this Agreement. Such notice shall reference the City contract number listed on the signature page of this Agreement. Said notice shall be sent thirty (30) days prior to such cancellation or non-renewal unless due to non-payment of premiums for which notice shall be sent ten (10) days prior. If such written notice is unavailable from the insurer, Contractor shall provide written notice of cancellation, non-renewal and any reduction in coverage to the parties identified in the Notices section by certified mail, return receipt requested within three (3) business days of such notice by its insurer(s) and referencing the City’s contract number. If any policy is in excess of a deductible or self-insured retention, the City must be notified by the Contractor. Contractor shall be responsible for the payment of any deductible or self-insured retention. The insurance coverages specified in this Agreement are the minimum requirements, and these requirements do not lessen or limit the liability of the Contractor. The Contractor shall maintain, at its own expense, any additional kinds or amounts of insurance that it may deem necessary to cover its obligations and liabilities under this Agreement.

8.2 Proof of Insurance. Contractor shall provide a copy of this Agreement to its insurance agent or broker. Contractor may not commence services or work relating to the Agreement prior to placement of coverages required under this Agreement. Contractor certifies that the certificate of insurance attached as Exhibit __, preferably an ACORD certificate, complies with all insurance requirements of this Agreement. The City requests that the City’s contract number be referenced on the Certificate. The City’s acceptance of a certificate of insurance or other proof of insurance that does not comply with all insurance requirements set forth in this Agreement shall not act as a waiver of Contractor’s breach of this Agreement or of any of the City’s rights or remedies under this Agreement. The City’s Risk Manager may require additional proof of insurance, including but not limited to policies and endorsements.

8.3 Additional Insureds. For Commercial General Liability, Business Automobile and Additional Coverage at Work Order Level Contractor and subcontractor’s insurer(s) shall include the City of Commerce City and its elected and appointed officials, employees and volunteers as an additional insured.

8.4 Subcontractors and Subconsultants. All subcontractors and subconsultants (including independent contractors, suppliers or other entities providing goods or services required by this Agreement) shall be subject to all of the requirements herein and shall procure and maintain the same coverages required of the Contractor. Contractor shall include all such subcontractors as additional insured under its policies (with the exception of Workers’ Compensation) or shall ensure that all such subcontractors and subconsultants maintain the required coverages. Contractor agrees to provide proof of insurance for all such subcontractors and subconsultants upon request by the City.

8.5 Workers’ Compensation/Employer’s Liability Insurance: Contractor shall maintain the coverage as required by statute for each work location and shall maintain Employer’s Liability insurance as required by applicable workers’ compensation laws for each bodily injury caused by disease claims. Contractor expressly represents to the City, as a material representation upon which the City is relying in entering into this Agreement, that none of the Contractor’s officers or employees who may be eligible under any statute or law to reject Workers’ Compensation Insurance shall effect such rejection during any part of the term of this Agreement, and that any such rejections previously effected, have been revoked as of the date Contractor executes this Agreement.

8.6 Commercial General Liability: Contractor shall maintain a Commercial General Liability insurance policy with limits of $1,000,000 for each occurrence, $1,000,000 for each personal and advertising injury claim, $2,000,000 products and completed operations aggregate, and $2,000,000 policy aggregate.

8.7 Business Automobile Liability: Contractor shall maintain Business Automobile Liability with limits of $1,000,000 combined single limit applicable to all owned, hired and non-owned vehicles used in performing services under this Agreement.

8.8 Professional Liability (Errors & Omissions): Contractor shall maintain limits of $1,000,000 per claim and $1,000,000 policy aggregate limit. The policy shall be kept in force, or a Tail policy placed, for three (3) years for all contracts except construction contracts for which the policy or Tail shall be kept in place for eight (8) years.

8.9 Additional Provisions.

8.9.1.1 For Commercial General Liability, the policies must provide the following:

a. That this Agreement is an Insured Contract under the policy;

b. Defense costs are outside the limits of liability;

c. A severability of interests or separation of insureds provision (no insured

vs. insured exclusion); and;

d. A provision that coverage is non-contributory with other coverage or self-insurance provided by the City.

8.9.1.2 For claims-made coverage: The retroactive date must be on or before the contract date or the first date when any goods or services were provided to the City, whichever is earlier.

8.9.1.3 Contractor shall advise the City in the event any general aggregate or other aggregate limits are reduced below the required per occurrence limits. At their own expense, and where such general aggregate or other aggregate limits have been reduced below the required per occurrence limit, the Contractor will procure such per occurrence limits and furnish a new certificate of insurance showing such coverage is in force.

8.10 Indemnification:

8.10.1 To the fullest extent permitted by law, the Contractor hereby agrees to defend, indemnify, reimburse and hold harmless City, its appointed and elected officials, agents and employees for, from and against all liabilities, claims, judgments, suits or demands for damages to persons or property arising out of, resulting from, or related to the work performed under this Agreement that are due to the negligence or fault of the Contractor or the Contractor’s agents, representatives, subcontractors, or suppliers (“Claims”). This indemnity shall be interpreted in the broadest possible manner consistent with the applicable law to indemnify the City.

8.10.2 Contractor’s duty to defend and indemnify City shall arise at the time written notice of the Claim is first provided to City regardless of whether suit has been filed and even if Contractor is not named as a Defendant.

8.10.3 Contractor will defend any and all Claims which may be brought or threatened against City and will pay on behalf of City any expenses incurred by reason of such Claims including, but not limited to, court costs and attorney fees incurred in defending and investigating such Claims or seeking to enforce this indemnity obligation. Such payments on behalf of City shall be in addition to any other legal remedies available to City and shall not be considered City’s exclusive remedy.

8.10.4 Insurance coverage requirements specified in this Agreement shall in no way lessen or limit the liability of the Contractor under the terms of this indemnification obligation. The Contractor shall obtain, at its own expense, any additional insurance that it deems necessary for the City’s protection.

8.10.5 This defense and indemnification obligation shall survive the expiration or termination of this Agreement.

9.0 STANDARD OF CARE: The Contractor agrees that all of the work performed and services rendered by the Contractor and its subconsultants under this Agreement shall be performed in accordance with the standards of care, skill and diligence provided by competent professionals who perform work or render services of a similar nature to the work or services described in this Agreement.

10.0 COMPLIANCE WITH LAWS AND REGULATIONS:

10.1 Laws and Regulations. The Contractor shall be responsible for the compliance of all activities undertaken by it pursuant to this Agreement with all applicable laws and regulations, including without limitation the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. In the performance of its services, the Contractor shall assist the Design Consultant(s) as may be necessary to fully comply with such laws and regulations or receive governmental approvals for the Project. The Contractor further agrees to perform all services for the Project in strict compliance with all applicable laws, statutes, codes, ordinances, rules and regulations, and industry standards in effect at the time of the execution of this Agreement until all services called for under this Agreement have been completed and accepted by the City.

Notwithstanding the foregoing, the City agrees that it is not the Contractor’s responsibility to assure that the drawings and specifications are in accordance with applicable laws, statutes, ordinances, building codes, rules and regulations.

10.2 Governmental Authorities. The Contractor shall perform all of its duties, obligations and services, hereunder in a manner that complies with the City's directions to the Contractor and/or the City's obligations under law to consult with, solicit advice from and involve in the City's decision-making process, all applicable governmental or quasi-governmental authorities having jurisdiction over the Project and the surrounding area, including, but not limited to, the State of Colorado and any agency or department thereof, and the City, and any agency or department thereof.

10.3 Licensing Requirements. The Contractor shall comply, at its own expense, with all laws and regulations, including, but not limited to, licensing requirements pertaining to its professional status and that of its employees, partners, associates, consultants under subcontract and others employed to render the services called for by this Agreement.

11.0 OWNERSHIP OF DOCUMENTS; CONFIDENTIAL INFORMATION:

11.1 Ownership of Documents. The data used in compiling, and the results of, any tests, surveys or inspections at the Site, as well as all photographs, drawings, specifications, studies, audits, reports, models and other items of like kind prepared by the Contractor, its employees and consultants, excluding proprietary systems such as estimating programs, shall be the property of the City whether the Project for which they are made is executed or not, but the Contractor shall be permitted to retain reproducible copies of all of the foregoing documents for the information and reference, and the originals of all of the foregoing documents including all electronic format copies shall be delivered to the City promptly upon completion thereof. All work products prepared by the Contractor under this Agreement, when delivered to and accepted by the Project Manager, shall become the property of the City and the City shall have unlimited ownership rights. Further, the Contractor agrees to allow the City to review any of the procedures used in performing the work and services hereunder, and to make available for inspection the field notes and other documents used in the preparation for and performance of any of the services and work performed hereunder. With respect thereto, the Contractor agrees to and does hereby grant to the City an exclusive royalty-free license to all data which the Contractor may cover by copyright.

11.2 City Information. The Contractor understands and agrees that, in performance of this Agreement, the Contractor may have access to private or confidential information which may be owned or controlled by the City and that such information may contain proprietary or confidential details, the disclosure of which to third parties may be damaging to the City. The Contractor agrees that all information disclosed by the City to the Contractor shall be held in confidence and used only in performance of the Agreement. The Contractor shall exercise the same standard of care to protect such information as a reasonably prudent Contractor would to protect its own proprietary data.

11.3 Contractor Information. The Parties understand that all the material provided or produced under this Agreement may be subject to the Colorado Open Records Act, C.R.S. 24-72-201, et seq., and that in the event of a request to the City for disclosure of such information, the City shall advise the Contractor of such request in order to give the Contractor the opportunity to object to the disclosure of any of its proprietary or confidential material. In the event of the filing of a lawsuit to compel such disclosure, the City will tender all such material to the court for judicial determination of the issue of disclosure and the Contractor agrees to intervene in such lawsuit to protect and assert its claims of privilege against disclosure of such material. The Contractor further agrees to defend, indemnify and save and hold harmless the City, its officers, agents and employees, from any claim, damages, expense, loss or costs arising out of the Contractor’s intervention to protect and assert its claims of privilege against disclosure under this Section including, but not limited to, prompt reimbursement to the City of all reasonable attorney fees, costs and damages that the City may incur directly or may be ordered to pay by such court.

11.4 Patent, Copyright and Trade Secret Indemnity. Notwithstanding any other provision hereof, the Contractor shall save, defend and hold harmless the City from all loss, damage, or liability for, or by reason of, any actual or alleged infringement of any United States Patent, Copyright, or Trade Secret disclosure arising out of the Contractor’s performance under this Agreement.

12.0 CONTRACT DOCUMENTS: The following documents are attached hereto and/or incorporated herein and made a part of this Agreement:

Exhibit A - Request for Qualifications and Request for Proposal (Incorporated by Reference)

Exhibit B - Contractor’s Proposal

Exhibit C - Key Personnel

Exhibit D - Basic Services

Exhibit E - ACORD Certificate of Insurance

Exhibit F –

Exhibit G – Project Site

13.0 ORDER OF PRECEDENCE: In the event of an irreconcilable conflict between a provision of Sections 1 through 17 and the listed attachments, or between provisions of any attachments, such that it is impossible to give effect to both, the order of precedence to determine which provision shall control to resolve such conflict, is as follows:

Sections 1 through 16

Exhibit B

Exhibit

14.0 TIME IS OF THE ESSENCE: The parties agree that in the performance of the terms, conditions and requirements of this Agreement by the Contractor, time is of the essence.

15.0 DISPUTES: All disputes of any nature whatsoever regarding the Agreement, including but not limited to those involving damages or time extensions for delay, equitable adjustments, or other claims for compensation by the Contractor, including but not limited to disputes going to the breach or default of this Agreement, shall be submitted to non-binding mediation before seeking any remedy in any other forum. The mediator shall be a trained mediator having experience related to municipal construction projects. The Parties shall jointly select the mediator from a list of mediators proposed by the Parties. If the Parties are unable to agree on a mediator, the Parties shall submit three mediator names each and the mediator shall be selected by random drawing at which the Project Manager and the contractor are present. No discussions or statements of the mediator may be admitted as evidence in any subsequent litigation, nor may the mediator be called to testify in any litigation. The costs of the mediator shall be shared equally by the Parties. Mediation in accordance with this section shall be a condition precedent to filing any lawsuit relating to any dispute. If any dispute, mediation or litigation arises out of this contract, the Contractor shall continue the Work in accordance with the terms and conditions of the Agreement during the time such dispute, mediation or litigation is pending except as expressly provided in the Contract Documents.

16.0 MISCELLANEOUS PROVISIONS:

16.1 Taxes and Licenses. The Contractor shall promptly pay, when they are due, all taxes, excises, license fees and permit fees of whatever nature applicable to the work and services which it performs under this Agreement and shall take out and keep current all required municipal, county, state or federal licenses required to perform its services under this Agreement. The Contractor shall furnish the Manager, upon request, duplicate receipts or other satisfactory evidence showing or certifying to the proper payment of all required licenses and/or registrations and taxes. The Contractor shall promptly pay all owed bills, debts and obligations it incurs performing work under this Agreement and shall not allow any lien, verified claim, mortgage, judgment or execution to be filed against land, facilities or improvements owned or beneficially owned by the City as a result of such bills, debts or obligations.

16.2 Status of Contractor. The status of the Contractor shall be that of an independent contractor retained on a contractual basis to perform preconstruction services for limited periods of time and it is not intended, nor shall it be construed, that the Contractor, or any member of its staff or any consultant, is an employee, officer or agent of the City for any purpose whatsoever.

16.3 Rights and Remedies Not Waived. Payment by the City shall not constitute a waiver of any breach of covenant or default which may then exist on the part of the Contractor. No assent, expressed or implied, to any breach of the Agreement shall be held to be a waiver of any later or other breach.

16.4 Subject to Local Laws, Jurisdiction, Venue. Each and every term, provision or condition in this Agreement is subject to and shall be construed in accordance with the provisions of Colorado law, the Charter of the City of Commerce City and the ordinances, regulations, and/or fiscal rules, enacted and/or promulgated pursuant thereto. The Charter and Revised Municipal Code of the City of Commerce City, as the same may be amended from time to time, are hereby expressly incorporated into this Agreement as if fully set forth herein by this reference. Venue for any action or proceeding arising out of, or relating in any way to this Agreement, or the breach thereof, shall be in the Adams County, Colorado.

16.5 Conflict of Interest. The Contractor agrees that no official, officer or employee of the City shall have any personal or beneficial interest whatsoever in the services or property described herein.

16.6 Waiver of C.R.S. 13-20-802 et. seq. With respect solely to the City, the Contractor specifically waives all the provisions of Chapter 8 of Article 20 of Title 13, Colorado Revised Statutes (also designated C.R.S. 13-2-802 et seq.) relating to design defects in the Project under this Agreement.

16.7 No Third-Party Relationship. Nothing contained in this Agreement shall create a contractual relationship with, an obligation to, or a cause of action in favor of any third party as against either the City or the Contractor.

16.8 Taxes, Charges and Penalties. The City shall not be liable for the payment of taxes, late charges, or penalties of any nature.

16.9 Notices. Any notices, demands, or other communications required or permitted to be given by any provision of this Agreement shall be given in writing, delivered personally or sent by registered mail, postage prepaid and return receipt requested, addressed to the parties at the addresses set forth herein or at such other address as either party may hereafter or from time to time designate by written notice to the other party given in accordance herewith. Notice shall be considered received on the day on which such notice is actually received by the party to whom it is addressed, or the third (3rd) day after such notice is mailed, whichever is earlier. Unless changed in writing, such notices shall be mailed to:

To the Contractor: ____________________________

To the City: Public Works Director

8602 Rosemary Street Commerce City, Colorado 80022

With a copy of any such notice to:

City Attorney’s Office

7887 E 60th Avenue Commerce City, Colorado 80022

16.10 Survival of Certain Contract Provisions. All terms and conditions of this Agreement, together with the exhibits and attachments hereto, which, by reasonable implication, contemplate continued performance or compliance beyond the termination of this Agreement (by expiration of the term or otherwise), shall survive such termination and shall continue to be enforceable as provided herein. Without limiting the general applicability of the foregoing, the Contractor’s obligations for the provision of insurance and to indemnify the City shall survive for a period equal to any and all relevant statutes of limitation, plus the time necessary to fully resolve any claims, matters, or actions begun within that period.

16.11 Paragraph Headings. The captions and headings set forth herein are for convenience of reference only and shall not be construed so as to define or limit the terms and provisions hereof.

16.12 Severability. If any provision, term, or part of this Agreement, except for the provisions of this Agreement requiring prior appropriation and limiting the total amount to be paid by the City, is held to be invalid, illegal, unenforceable, or in conflict with any law of the State of Colorado, the validity, legality, and enforceability of the remaining portions or provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term or provision held to be invalid.

16.13 Construction of Terms. The language in this Agreement shall be construed according to its customary meaning within the building industry in the Denver metropolitan area. Whenever used, the singular numbers shall include the plural, and the plural the singular, and the use of any gender shall be applicable to all genders.

16.14 Agreement as Complete Integration; Amendments. This Agreement is intended as the complete integration of all understandings between the parties. No prior or contemporaneous addition, deletion or other amendment shall have any force or effect, unless embodied herein in writing. No subsequent novation, renewal, addition, deletion or other amendment hereto shall have any force or effect unless embodied in a written amendatory or other agreement executed by the parties and signed by the signatories to the original Agreement. This Agreement and any amendments shall be binding upon the parties, their successors and permitted assigns.

16.15 Electronic Signatures and Electronic Records. Contractor consents to the use of electronic signatures by the City. The Agreement, and any other documents requiring a signature hereunder, may be signed electronically by the City in the manner specified by the City. The Parties agree not to deny the legal effect or enforceability of the Agreement solely because it is in electronic form or because an electronic record was used in its formation. The Parties agree not to object to the admissibility of the Agreement in the form of an electronic record, or a paper copy of an electronic document, or a paper copy of a document bearing an electronic signature, on the ground that it is an electronic record or electronic signature or that it is not in its original form or is not an original.

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Exhibits A through G

Exhibit A Request For Qualifications/Proposal

INCORPORATED BY REFERENCE

Exhibit B - Proposal

DocuSign Envelope ID: 604046DB-9F17-4C9C-8B0D-73EEB21618C7 DocuSign Envelope ID: 350D8542-1ACD-4F76-8FA7-3FB852812288 DocuSign Envelope ID: 5075F292-FF66-4773-B865-62620C0A7E90

Exhibit C

Key Personnel

DocuSign Envelope ID: 604046DB-9F17-4C9C-8B0D-73EEB21618C7 DocuSign Envelope ID: 350D8542-1ACD-4F76-8FA7-3FB852812288 DocuSign Envelope ID: 5075F292-FF66-4773-B865-62620C0A7E90

Exhibit D

Basic Services

DocuSign Envelope ID: 604046DB-9F17-4C9C-8B0D-73EEB21618C7 DocuSign Envelope ID: 350D8542-1ACD-4F76-8FA7-3FB852812288 DocuSign Envelope ID: 5075F292-FF66-4773-B865-62620C0A7E90

Exhibit E

ACORD

Certificate of Insurance

Exhibit F

Project Site