Exhibit A Design-Build Agreement with GMP.docx

STANDARD DESIGN/BUILD AGREEMENT

FOR THE {---Project Name---}

THIS AGREEMENT is entered into {---Contract Effective Date---}, by and between {---Company Name---} (hereinafter, “Design/Builder”), a {---Vendor Enitity Type---}organized pursuant to the laws of the State of {---Vendor State of Organization---} and located at {---Vendor Street1---} {---Vendor City---}, {---Vendor State/Province---} {---Vendor Postal Code---} and the CITY OF WESTMINSTER (hereinafter, “City” or “Owner”), a home-rule municipal corporation organized pursuant to the laws of the State of Colorado, located at 4800 West 92nd Avenue, Westminster, Colorado, 80031, collectively, the “Parties,” and is as follows:

The Parties agree that, in any section in which the Design/Builder prepares any document for “the approval of the City,” such approval does not mean that City is responsible for the accuracy, thoroughness, or judgment contained in the document. The City does not waive the right to hold the Design/Builder responsible for the accuracy, thoroughness, or judgment expressed in the document, as it is expressly agreed by the Parties that the City is relying on the expertise of the Design/Builder

ARTICLE I

GENERAL PROVISIONS AND DEFINITIONS

1.1 General Intent. The intent of the Parties is to provide for the design and completed installation of {---Description---} at {---Location of Project---} (the "Improvements"). The Improvements are to be constructed using a design/build approach, free of defects in design and constructed in a workmanlike manner. The design and construction of the Improvements (the “Work”) is to be completed for the Contract Sum established by this Agreement. The Parties intend that the chronology by which the Improvements shall be constructed is as follows:

.1 Submission of a Proposal, Preliminary Design and any Minimum Performance Standards for the Improvements by Design/Builder in response to the City’s Request for Proposal;

.2 City will issue Notice of Award;

.3 Design/Builder shall execute the Agreement, with a basis for compensation for Preliminary Services.

.4 Submission by the City to Design/Builder of the Notice to Proceed with the Preliminary Services.

.5 Design/Builder shall provide Preliminary Services and provide the City with a Guaranteed Maximum Price (GMP) Proposal that will establish the commercial terms for the Final Design and Construction Phase via contract amendment, including but not limited to the GMP and Scheduled Substantial Completion Date.

.6 If GMP Proposal is accepted by the City, Design/Builder shall provide fully executed bonds in the form required by the City, and insurance certificates; and shall deliver them to the City;

.7 Pre-Design/Build meeting held to submit proposed schedule of values and schedule of payments to the City, and issuance of Notice to Proceed with Construction Phase Services;

.8 Submission of Final Project Design Drawings and Specifications and Construction Documents by Design/Builder, and approval thereof by the City;

.9 Preconstruction conference and submission of estimated progress and payment schedules;

.10 Commencement of construction of the Work;

.11 Substantial Completion of construction of the Work; and

.12 Final acceptance of the Work by the City and Final Payment for Design/Builder.

1.1.1 The Contract Documents consist of this Agreement, the Request for Proposals, the Instructions to Proposers, Notice of Award, Notice to Proceed, Special Conditions, Addendum, Specifications, Change Orders, Insurance Certificates, Tax-Exempt Certificates, the Design/Builder's Proposal, Preliminary Design, and Minimum Performance Standards to be attached as Attachment 1, the Project Design Drawings and Specifications to be attached as Attachment 2, the Construction Documents to be attached as Attachment 3, the completed and executed Payment and Performance Bonds in substantially the same form as provided by the City to be attached as Attachment “4,” and any Modifications issued after execution of this Agreement. A Modification is a Change Order or a written amendment to this Agreement signed by both Parties. These form the Agreement and are as fully a part of the Agreement as if attached to this Agreement or repeated herein.

1.1.2 The Project is the total design and construction of the Improvements for which the Design/Builder is responsible under this Agreement, including all of the technical, administrative, professional design, construction, and other labor, all supplies and materials, equipment, printing, vehicles, local travel, office space and facilities, testing and analyses, calculations, and any other facilities or resources necessary to provide such design and construction.

1.1.3 The Work comprises the completed construction of the Project and, unless otherwise provided in the Contract Documents, the Design/Builder shall provide and pay for all labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for the proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work.

1.1.4 Underground Utilities means any below ground line, structure, facility or installation used by a utility or service provider including, but not limited to, telephone company lines, cable and conduit; cable television lines, cable and conduit; internet lines, cable and conduit; sewer lines and water lines, including individual sewer and water service lines; stormwater lines; gas lines; electrical lines, cables and conduit; and traffic signal lines, cable and conduit.

1.2 Further Intent. It is the further intent and agreement of the Parties that:

1.2.1 The completed Improvements shall meet the Minimum Performance Standards and Project Design Drawings and Specifications prepared by Design/Builder and approved by the City.

1.2.2 The Design/Builder shall be solely and exclusively responsible for the proper design and workmanlike construction of the Improvements.

1.3 Service of Process. Design/Builder's registered agent for service of legal process in the State of Colorado is {---DesignBuilders Registered Agent Name---}, whose address is {---DesignBuilders Registered Agent Address---}. Such agent for service shall be maintained at a minimum for a period of two (2) years following the Date of Substantial Completion of the Improvements. Design/Builder shall provide the City with immediate written notice of any change to its registered agent.

1.4 Execution, Correlation and Intent.

1.4.1 The Parties hereby acknowledge that this Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The Parties agree that signature pages may be executed via ink signature or electronic mark and the executed signature pages may be delivered using pdf or similar file type transmitted via electronic mail, cloud-based server, e-signature technology or other similar electronic means. Further, the Parties acknowledge and agree that the original of this Agreement, including the signature page, may be scanned and stored in a computer database or similar device, and that any printout or other output readable by sight, the reproduction of which is shown to accurately reproduce the original of this Agreement, may be used for any purpose as if it were the original, including proof of the content of the original writing.

1.4.2 It is the intent of the City and Design/Builder that the Contract Documents include all items necessary for the proper execution and completion of the Work. The Contract Documents are complementary, and what is required by any one shall be as binding as if required by all. Work not covered in the Contract Documents will not be required unless it is consistent with and is reasonably inferable from the Contract Documents as being necessary to produce the intended results. Words and abbreviations which have well-known technical or trade meanings are used in the Contract Documents in accordance with such recognized meanings.

1.5 Ownership and Use of Documents.

1.5.1 All drawings and specifications prepared during the design, development and construction phases, but which are not included in the Contract Documents incorporated into the Agreement between the City and the Design/Builder (drawings and specifications prepared by Design/Builder, but excluded from the Project prior to the establishment of the Contract Sum) shall remain the property of the Design/Builder.

1.5.2 All other drawings and specifications prepared pursuant to this Agreement (drawings and specifications which become a part of the Contract Documents incorporated into the Agreement between the City and Design/Builder) shall be the joint property of the City and Design/Builder, provided, however, the rights of ownership shall be limited as follows:

1.5.3 The City may utilize the drawings and specifications with respect to construction, maintenance, repair and modification of the Project.

1.5.4 The City may utilize the drawings and specifications with respect to another project if: (a) the City engages the Design/Builder to perform design/build services with respect thereto at a fee to be negotiated, or (b) the City engages another licensed design/builder with respect to said project and agrees to hold the Design/Builder harmless and indemnify the Design/Builder from any claims arising out of City’s subsequent use of said drawings and specifications.

1.5.5 Design/Builder may utilize any of the constituent parts of the drawings and specifications on any other project, except for any unique or distinctive architectural components or effects which taken independently or in combination would produce a project with substantially similar and distinctive features.

1.5.6 Design/Builder shall provide the City with a complete set of as-built drawings and specifications depicting the project as modified during construction in both electronic and print form.

1.5.7 Submission or distribution of the drawings and specifications to meet official regulatory requirements or for other purposes in connection with the Project is not to be construed as publication in derogation of the Design/Builder’s rights.

ARTICLE II

SCOPE OF WORK

2.1 The intent of the Parties is to provide for the design and completed installation of {---Description---} at {---Location of Project---} (the "Work"). The Work is to be constructed using a design/build approach, free of defects in design and constructed in a workmanlike manner.

2.1.1 The Work will be performed under two phases, and shall consist of the following:

2.1.2 Preliminary Services. Design-Builder will perform the Preliminary Services set forth in Appendix A - [Insert title of Design/Builder’s Preliminary Services document]. For the avoidance of doubt:

2.1.2.1 No Construction at the Site is included as part of the Preliminary Services.

2.1.2.2 As set forth more fully in Article 5 and 11, the Preliminary Services includes Design-Builder providing Owner with a Guaranteed Maximum Price (GMP) Proposal that will establish the commercial terms for the Final Design and Construction Phase via contract amendment, including but not limited to the GMP and Scheduled Substantial Completion Date. Design-Builder acknowledges that Owner is under no obligation to accept such GMP Proposal, and that Owner shall have, among other things, the right to terminate this Agreement in accordance with Article 14.

2.1.3 Final Design and Construction. Design-Builder shall perform all final design and construction services, and provide all material, equipment, tools and labor, necessary to complete the Work described in and reasonably inferable from the Contract Documents.

2.2.1 Perform and prosecute the Work using methods and equipment that are accepted as prudent electrical, mechanical and civil engineering practice and operations;

2.2.2 Design and operate all equipment lawfully and with safety, dependability, efficiency and economy in each case using qualified and competent and, where necessary, licensed personnel;

2.2.3 Provide all construction materials, equipment, and supplies;

2.2.4 Arrange for complete handling, storing, insuring, transporting and delivery of all materials, equipment and construction equipment, including inspection, expediting, shipping, unloading, receiving, customs clearance and claims;

2.2.5 Obtain, to the extent permitted by law, waivers of lien from all subcontractors, vendors and suppliers as of the date of Final Payment under paragraph 11.10;

2.2.6 Provide as-built drawings of the completed Improvements in both electronic and print form, and copies of all reports, studies and test results performed in connection with the Work along with a set of mylar reproducible sheets;

2.2.7 Designate a contact person reasonably acceptable to the City who will have full responsibility for the prosecution of the Work and will act as a single point of contact and agent in all matters on behalf of Design/Builder; provided that Design/Builder shall not change the contact person or any other key member of Design/Builder's project staff without the prior written consent of the City which shall not be unreasonably withheld;

2.2.8 Remove from the Site and maintain the Site free of waste material and rubbish, and clear the Site of temporary structures, surplus material, equipment and tools prior to the date of final acceptance;

2.2.9 Provide such data, reports, certifications, opinions of counsel and other documents or assistance as may be reasonably requested by the City, provided, however, that the provision of this information shall not in any manner diminish Design/Builder's rights or obligations under any other provision of this Agreement.

2.2.10 Cooperate with the City in the review of the design and construction of the Work, the conduct of inspections and other matters relating to the Work; and

2.2.11 In the event of a dispute under this Agreement, grant to the City all audit rights with respect to all documentation pertaining to such dispute which the City shall reasonably request.

2.3 This Agreement and Other Contract Documents. The term "this Agreement" includes all the provisions of this document and all other Contract Documents, including all Attachments, Appendices, Amendments, Supplements and Modifications thereto, including all Change Orders approved in accordance with the terms of this Agreement. The Contract Documents are intended to describe Design-Builder’s responsibility to complete the Work and perform all obligations required by the Contract Documents within the Contract Time(s) for the Contract Price and to describe Owner’s responsibility for payment and related duties. The Contract Documents are intended to be complementary and interpreted in harmony so as to avoid conflict. In the event inconsistencies, conflicts, or ambiguities between or among the Contract Documents are discovered after execution of the Agreement, or after Owner’s acceptance of the GMP Proposal, Design-Builder and Owner 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 below.

2.3.1 The Contract Documents listed below in the order of precedence are comprised of the following:

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

2.3.3 The GMP Proposal Amendment executed in accordance with Article 11.6 herein;

2.3.4 This Agreement, including the Addenda to the Request for Proposal, the Request for Proposal, the Statement of Qualifications, the Design-Builder’s Proposal dated date of D-B's proposal, and all associated exhibits and supplemental proposal information but excluding, if applicable, the GMP Exhibit;

2.3.5 The General Conditions of Contract; and

2.3.6 Construction Documents prepared and approved in accordance with Article 5 including any exhibits, appendixes, or attachments submitted by the Design-Builder.

2.4 Site. The term "Site" means the property on which the Improvements are to be constructed, located at {---Location of Project---} Westminster, Colorado, and all structures and grounds appurtenant or reasonably related thereto.

2.5 Strict Privity of Contract. Nothing in this Agreement shall be construed as creating any contractual relationship of any kind between the City and any subcontractor, consultant or vendor retained by the Design/Builder, or any other person other than the Design/Builder.

2.6 No Third Party Beneficiaries. Nothing in this Agreement shall be construed as creating any third party beneficiary rights or status to any third party and the City and Design/Builder expressly disclaim any intent to create any such third party beneficiary rights or status by this Agreement.

2.7 No Discrimination. In connection with the execution of this Agreement, the Design/Builder shall not unlawfully discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, sex, immigration status, gender identity or expression, sexual orientation, national origin, or disability. Such actions shall include, but not be limited to the following: employment; upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Design/Builder represents that it will require a similar affirmation of nondiscrimination in any contract it enters into with a subcontractor as part of the execution of this Agreement.

2.8 ADA Compliance. To the extent applicable under federal law, Design/Builder shall ensure the Project complies with Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq., by incorporation into the Project, where appropriate, the 2010 ADA Standards for Accessible Design published by the U.S. Department of Justice, dated September 15, 2010, as may be amended from time to time.

ARTICLE III

CITY

3.1 The City shall designate a representative authorized to act on the City's behalf with respect to the Project. The City or such authorized representative shall promptly render decisions as needed to avoid delay in the orderly progress of the Work.

3.2 The City may appoint an on-site project representative to observe the Work and to have such other responsibilities as the City and Design/Builder agree in writing from time to time. The appointment of such representatives is for the exclusive benefit of the City and not the Design/Builder.

3.3 The City shall cooperate with the Design/Builder in securing building and other permits, licenses and inspections.

3.4 Design-Builder and City, prior to execution of the Agreement (and again at the time of acceptance of the GMP Proposal by City in accordance with Article 11.6 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 City will discuss and resolve any identified conflicts or ambiguities prior to City’s acceptance of the GMP Proposal. Nothing herein shall be construed as creating any duty on the part of the City to observe or discover defects in the Work.

3.5 The City shall furnish required information and services and shall promptly render decisions pertaining thereto to avoid delay in the orderly progress of the design and construction.

3.6 The City shall, at the request of the Design/Builder and upon execution of this Agreement, provide a certified or notarized statement of funds available for the Project and their source.

3.7 The City shall communicate with Design/Builder's contractors and subcontractors only through the Design/Builder.

3.8 Unless otherwise provided in the Contract Documents, the City shall not be responsible to provide water, heat, and utilities necessary for the performance of the Work. Design/Builder has inspected the Site and has determined the existing utilities are adequate for the performance of the Work as contemplated by this Agreement, or has made arrangement to provide the necessary utilities at Design/Builder’s sole expense.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES REGARDING

DESIGN/BUILDER'S KNOWLEDGE AND CAPACITY

4.1 Warranties of Knowledge and Capacity. In addition to all other representations, warranties and covenants set forth in this Agreement, the Design/Builder represents, warrants and agrees that:

4.1.1 It has the required authority, ability, skills and capacity to, and shall perform the Work in a manner consistent with this Agreement.

4.1.2 It has inspected the Site and surrounding locations, including both surface and subsurface conditions, to the extent it deems necessary in accordance with prudent engineering practices, for performing its obligations under this Agreement, and is familiar with the physical requirements of the Work and accepts them for such performance.

4.1.3 It has knowledge of all of the legal requirements and business practices in the State of Colorado that must be followed in performing the Work and the Work shall be performed in conformity with such requirements and practices. The Improvements can and shall be built in conformity with all relevant building codes.

4.1.4 Substantial Completion of the Improvements and all Work can be achieved by the Guaranteed Completion Date and for the Contract Sum.

4.1.5 Design/Builder is a corporation duly organized, validly existing and in good standing under the laws of the State of its incorporation and has all requisite power to own its properties and assets and carry on its business as now conducted or proposed to be conducted and Design/Builder is duly qualified, registered to do business and in good standing in the State of Colorado and in all other jurisdictions where necessary in light of the business and properties it conducts and owns and intends to conduct and own.

4.1.6 The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action and do not and will not (a) require any consent or approval of the board of directors or any shareholders of Design/Builder or any other person that has not been obtained and each such consent and approval that has been obtained is in full force and effect or (b) result in a breach of or a default under the certificate of incorporation or bylaws of Design/Builder or any indenture, loan, or credit agreement or other material agreement or instrument to which Design/Builder is a party or by which its properties and assets may be bound or affected.

4.1.7 This Agreement constitutes the legal, valid and binding obligations of Design/Builder enforceable in accordance with its terms.

ARTICLE V

DESIGN OF PROJECT

5.1 Qualifications. Design services shall be performed by qualified architects, engineers and other professionals.

5.2 Liability for Design Errors. The Design/Builder shall be responsible to the City in contract and tort for acts and omissions of the Design/Builder's employees, subcontractors, agents, and parties in privity of contract with the Design/Builder for all design elements of the Project, including the design of the Improvements.

5.3 Minimum Performance Standards. The standard of care for all design professional services performed to execute the Work shall be the care and skill ordinarily used by members of the design profession practicing under similar conditions at the same time and locality of the Project.

5.3.1 Owner enters into this Agreement relying on Design-Builder's special and unique abilities to perform the Services and the Work. Design-Builder accepts the relationship of trust and confidence established between it and the Owner by this Agreement. Design-Builder's Services as provided through the Work under this Agreement shall be of at least the standard and quality prevailing among recognized professionals of expert knowledge and skill engaged in the Design-Builder's same profession under the same or similar circumstances. Design-Builder will further the interests of Owner according to Owner's requirements and procedures, according to the high professional standards required herein. Design-Builder and Owner agree that Design-Builder is not responsible for breach of fiduciary duty. Additionally, Design-Builder shall not be responsible for acts and decisions of third parties, including governmental agencies, other than Design-Builder’s subcontractors or vendors, that impact project completion and/or success.

5.3.2 Design-Builder's Work shall include detailed independent verification of data prepared or supplied by Owner. Design-Builder will, nevertheless, call to Owner's attention anything in any drawings, plans, sketches, instructions, information, requirements, procedures, or other data supplied to Design-Builder (by the Owner or any other party) that Design-Builder knows, or reasonably should know, is unsuitable, improper, or inaccurate for Design-Builder's purposes.

5.4 Alternative Approaches. The Design/Builder shall review with the City alternative approaches to the design and construction of the Improvements.

5.5 Proposal and Preliminary Design. Not later than {---DesignBuilders Proposal and Preliminary Design Due Date---}, the Design/Builder shall prepare and submit to the City a Proposal, Preliminary Design for the Work, and a proposed schedule for completion of the Improvements at the time the GMP proposal is submitted. The Proposal and Preliminary Design Documents consist of the proposal, preliminary design drawings, outline specifications and other documents attached hereto as Attachment "1." The Preliminary Design Documents constitute the Minimum Performance Standards and fix and describe the general size, quality and character of the entire Work, its architectural, structural, mechanical, electrical, and instrumentation and control systems, and the materials and such other elements of the Work intended to be incorporated into the Project Design Drawings and Specifications and Construction Documents.

5.5.1 Quality Control/Quality Assurance. Design/Builder shall prepare and submit to the City a quality control/quality assurance plan that indicates the requirements for review by the Project Coordinator, testing, and documentation.

5.6 Project Design Drawings and Specifications and Construction Documents. Upon acceptance of the GMP Proposal Design/Builder shall commence the Final Design and Construction Services based on the Preliminary Design Documents, the Design/Builder shall prepare and submit draft Project Design Drawings and Specifications and Construction Documents for review and approval by the City in hard copy and in an electronic/digital format acceptable to the City.

5.6.1 The Project Design Drawings and Specifications and Construction Documents as approved by the City are attached to this Agreement as Attachments 2 and 3, respectively. 3. In addition, the Project Design Drawings and Specifications and Construction Documents shall be provided to the City in an electronic/digital format acceptable to the City.

5.6.2 The Project Design Drawings and Specifications and Construction Documents and are intended to include technical drawings, schedules, diagrams and specifications, setting forth in detail the requirements for construction of the Improvements, including:

5.6.3 The Design/Builder warrants that the Project Design Drawings and Specifications and Construction Documents are free of defects, reasonably sufficient to permit the construction of the Improvements to proceed without the need of any interpretation or speculation of the intent or requirements of the Project Design Drawings and Specifications and Construction Documents, and that the Project Design Drawings and Specifications and Construction Documents if followed as directed shall result in the construction and installation of the Improvements in a workmanlike manner, free of defects, and able to meet or surpass the Minimum Performance Standards.

5.6.4 Nothing herein shall be construed as in any way limiting the Design/Builder's ability to make changes to the Project Design Drawings and Specifications and Construction Documents in the course of constructing the Project as Design/Builder in its sole and exclusive judgment shall deem necessary to meet the Minimum Performance Standards. Any such proposed changes that will change the overall cost of the Work shall be reviewed with the City prior to their implementation and shall be reflected in a duly authorized Change Order executed pursuant to Article VIII of this Agreement.

5.6.5 No review or approval by the City of the Proposal, Preliminary Design Documents or the Project Design Drawings and Specifications and Construction Documents shall in any way relieve or reduce Design/Builder's responsibility for the content and adequacy of such documents.

5.7 Notice to Proceed.

5.7.1 Design-Builder shall commence the Preliminary Services upon Design-Builder’s receipt of Owner’s Notice to Proceed with Preliminary Services. Owner will issue Notice to Proceed with Preliminary Services within five (5) days after the Effective Date of the Agreement, unless the Parties mutually agree otherwise in writing.

5.7.2 Design-Builder shall commence the Final Design and Construction Services upon Design-Builder’s receipt of Owner’s Notice to Proceed with Final Design and Construction Services. Owner will issue a Notice to Proceed with Final Design and Construction Services within five (5) days after the Effective Date of the GMP Proposal Amendment, unless the Parties mutually agree otherwise in writing.

ARTICLE VI

CONSTRUCTION

6.1 Supervision and Direction of Work; Sole Responsibility of Design/Builder. The Design/Builder shall supervise and direct the Work, using his best skill and attention. He shall be solely responsible for all construction means, methods, techniques, sequences and procedures, and for all safety precautions and programs that may be reasonably required in connection with the Project, and for coordinating all portions of the Work under this Agreement. The Design/Builder shall be responsible for and shall coordinate all construction means, methods, techniques, sequences and procedures.

6.1.1 The Design/Builder shall be responsible to the City in tort and contract for the acts and omissions of its employees, subcontractors, sub-subcontractors and their agents and employees, and other persons performing any of the Work under a contract with the Design/Builder.

6.1.2 The Design/Builder shall not be relieved from its obligations to perform the Work in accordance with the Contract Documents either by the activities or duties of the City in its administration of the Agreement, or by inspections, tests or approvals required or performed by persons other than the Design/Builder.

6.1.3 The Design/Builder shall locate all existing Underground Utilities prior to performing any work. If utility locate services are provided in the field by utility owners, Design/Builder nonetheless remains solely responsible to determine the actual location of all Underground Utilities, as the Design/Builder is solely responsible for locating all existing underground installations, including Underground Utilities and their service connections. The Design/Builder shall use its own information and shall not rely upon any information shown or not shown on the plans or on field locates provided by the utility owner concerning existing Underground Utilities, facilities, structure, or installations. Known Underground Utilities and other underground structures are shown on the Preliminary Design only to the extent such information has been made available to or discovered by the City. It is expected that there may be discrepancies and omissions in the location and quantities of actual Underground Utilities and other underground structures and those shown. This information is shown for the convenience of the Design/Builder, but is not guaranteed to be either correct or complete, and all responsibility for the accuracy and completeness thereof is expressly disclaimed by the City. Contractor is responsible for, at no additional cost to the City, potholing all existing Underground Utilities to be crossed or that may otherwise affect their means and methods for constructing the Project prior to beginning any Work. Any delay, additional work, or extra cost to the Design/Builder caused by existing Underground Utilities, facilities, structures or installations shall not constitute a claim for extra work, additional payment, or damage.

6.1.4 Design/Builder shall not be relieved of obligations to perform the Work in accordance with this Agreement by tests, inspections, or approvals performed by persons other than Design/Builder.

6.2 Provision of Labor and Materials. Unless otherwise provided in the Contract Documents, the Design/Builder shall provide or cause to be provided and shall pay for design services, labor, materials, equipment, tools, construction equipment and machinery, transportation and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work.

6.3 Work Force. The Design/Builder shall at all times enforce strict discipline and good order among its employees, agents and subcontractors and shall not employ on the Work any unfit person or anyone not skilled in the task assigned to him.

6.4 Progress Reports. The Design/Builder shall keep the City reasonably informed of the progress and quality of the Work by holding periodic meetings and updating the project schedule.

6.5 Taxes. All sales of construction and building materials to contractors and subcontractors for use in the building, erection, alteration or repair of structures, highways, roads, streets and other public works owned and used by the City are exempt from State and RTD sales and use taxes and from Westminster use tax.

6.5.1 The Design/Builder shall deliver and execute an "Application for Exemption Certificate" prepared by the City which shall be submitted for approval of the Department of Revenue, State of Colorado. This certificate will serve as an indication to the City that the Design/Builder has acquired the necessary exemption for State and RTD sales and use taxes.

The Design/Builder also agrees to make the same requirement, as contained above, of the subcontractor or subcontractors on this project. Westminster use tax will be due on construction tools and equipment used on the Project if municipal use tax was not paid on the full purchase price of these items. Construction equipment which had a purchase price of $2,500 or more must be declared. All books and records pertaining to the Project that will allow the accurate determination of any tax due must be retained and be kept available for inspection by the City for three years after the completion of the Project. The City's Finance Department shall provide reasonable assistance to Design/Builder in acquiring the State of Colorado and RTD tax-exemptions contemplated by this paragraph.

6.6 Equipment Installation. Experienced manufacturer's representatives shall be used to supervise the installation of equipment. Any special tools or equipment which may be required for first class work shall be provided by the Design/Builder.

6.7 Materials Standards. In the absence of detailed specifications, all materials shall conform to the more stringent of the latest standards of the American Society for Testing Materials available as of the date of execution of this Agreement by Design/Builder and any other applicable standards. Any reference to standard specifications in any of the Contract Documents shall always imply the latest edition of such standard specifications or specifications available as of the date of execution of this Agreement by Design/Builder unless otherwise indicated.

6.8 Safety. The Design/Builder shall be responsible for initiating, maintaining and providing supervision of safety precautions and programs in connection with the Work.

6.8.1 The Design/Builder shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to:

6.8.2 The Design/Builder shall give notices and comply with applicable laws, ordinances, rules, regulations and orders of public authorities bearing on the safety of persons and property and their protection from damage, injury of loss.

6.8.3 The Design/Builder shall be liable for damage or loss to property at the Site caused in whole or in part by the Design/Builder, a contractor or subcontractor of the Design/Builder or anyone directly or indirectly employed by either of them, or by anyone for whose acts they may be liable.

6.8.4 The Design/Builder shall protect, shore, brace, support and maintain all underground pipes, conduits, drains, and underground construction uncovered or otherwise affected by the construction work performed by him.

6.8.5 The Design/Builder shall erect and maintain, as required by existing conditions and progress of the Work, all reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent utilities.

6.8.6 When the use or storage of explosives or other hazardous materials or equipment is necessary for the execution of the Work, the Design/Builder shall exercise the utmost care and shall carry on such activities under the supervision of properly qualified personnel.

6.8.7 The Design/Builder shall designate a responsible member of his organization at the Site whose duty shall be the prevention of accidents. This person shall be the Design/Builder's superintendent unless otherwise designated by the Design/Builder in writing to the City.

6.8.8 The Design/Builder shall not load or permit any part of the Work to be loaded so as to endanger its safety, or the safety of any nearby personnel or property.

6.8.9 In any emergency affecting the safety of persons or property, the Design/Builder shall act, at his discretion, to prevent threatened damage, injury or loss. Any additional compensation or extension of time claimed by the Design/Builder on account of emergency work shall be determined as provided in Articles VII, VIII, and/or X.

6.9 Warranty of Title. As of the date of Final Payment, Design/Builder warrants that it owns and has good and marketable title to all materials, equipment, tools and supplies furnished by it and its subcontractors and vendors that become part of the Work or are purchased for the City for the operation, maintenance or repair thereof, free and clear of all liens. As of the date of Final Payment, title to all of said materials, equipment, tools and supplies which shall have been delivered to the Site shall pass to the City upon payment by the City to Design/Builder of invoiced amounts pertaining thereto. Notwithstanding any such passage of title, Design/Builder shall retain sole care, custody and control of said materials, equipment, tools and supplies and shall exercise due care with respect thereto until the date of final acceptance. Such transfer of title shall in no way affect the City's rights as set forth in any other provision of this Agreement. For the purpose of protecting the City's interest in all materials, equipment, tools and supplies with respect to which title has passed to the City but which remain in possession of another party, Design/Builder shall take or cause to be taken all steps reasonably necessary under the laws of the appropriate jurisdiction(s) to protect the City's title and to protect the City against claims by other parties with respect thereto.

6.10 Orderly Progression of Work. Design/Builder shall at all times schedule and direct its Work so that it provides an orderly progression of the Work to completion within the specified time for completion.

6.11 Superintendent. The Design/Builder shall employ a competent superintendent and necessary assistants who shall be in attendance at the Site during the progress of the Work. The superintendent shall represent the Design/Builder and all communications given to the superintendent shall be as binding as if given to the Design/Builder, provided, however, that all communications concerning any change to the Scope of the Work, the drawings or specifications for the Project, or any Minimum Performance Standards shall be in writing in order to be binding on the Design/Builder. Further, all oral communications given to the superintendent in connection with non-substantial or non-material aspects of the Work shall be as binding as if given to Design/Builder.

6.12 Estimated Progress and Payment Schedule. The Design/Builder, at the pre-design/build conference, shall prepare and submit for the City's information an estimated progress schedule for the Work. The Design/Builder shall prepare and submit an estimated progress payment schedule to the City. The progress schedules shall be related to the entire Work to the extent required by the Contract Documents, and shall provide for expeditious and practicable execution of the Work. The pre-design/build conference shall be scheduled at the time the Notice to Proceed with Design is issued.

6.13 Records. The Design/Builder shall maintain at the Site for the City one record copy of all Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order and marked currently to record all changes made during construction, and approved Shop Drawings, Product Data and Samples. These shall be available for inspection by the City at all times and shall be delivered to the City in hard copy and in an electronic/digital format acceptable to the City upon completion of the Work.

6.13.1 Throughout the progress of construction, the Design/Builder shall maintain a careful up-to-date record of all changes on the drawings during actual construction. Upon completion of the Work, and prior to final acceptance by the City, the Design/Builder shall file with the City one set of complete drawings with all changes and Design/Builder's field construction notes neatly and legibly recorded thereon. Such information may be used to prepare record drawings for the City. Such drawings shall include all lines, piping, and underground construction installed by Design/Builder.

6.14 Manuals. Design/Builder shall furnish the City with three (3) copies of all operator's instructions, service and parts manuals, and all other literature received by Design/Builder from the manufacturer or supplier of equipment furnished under the Agreement. All operator's instructions, service and parts manuals, and all other such literature shall be bound in three (3) permanent binders satisfactory to the City.

6.15 Manufacturer's Warranties. Copies of any manufacturer's warranty or certificate as may be required by the Contract Documents shall be submitted to the City prior to Final Payment and final acceptance of the Work by the City.

6.16 Fitting of Parts. The Design/Builder shall be responsible for all cutting, fitting or patching that may be required to complete the Work or to make its several parts fit together properly.

6.17 Waste and Rubbish. The Design/Builder at all times shall keep the premises free from accumulation of waste materials or rubbish caused by his operations. At the completion of the Work he shall remove all his waste materials and rubbish from and about the Project as well as all his tools, construction equipment, machinery and surplus materials.

6.18 Patents and Royalties. The Design/Builder shall protect, defend, indemnify, and save harmless the City, and each of its officers, agents, servants, and employees, from liability of any nature or kind, including cost and expense for, or on account of, any patented or unpatented invention, process, article, or appliance manufactured or used in the performance of the Agreement, including its use by the City, or the City's officers, agents, servants, or employees, unless otherwise specifically stipulated in the Contract Documents.

6.18.1 If the Design/Builder uses any design, device or materials covered by letters patent or copyright, he shall provide for such use by suitable agreement with the owner of such patented or copyrighted design, device or material. It is mutually agreed and understood that, without exception, the prices shall include all royalties or costs arising from the use of such design, device or materials, in any way involved in the Work. The Design/Builder or his Surety shall protect, defend, indemnify, and save harmless the City from any and all claims for infringement by reason of the use of such patented or copyrighted design, device, or materials or any trademark or copyright in connection with Work agreed to be performed under the Agreement, and shall indemnify the City for any cost, expense, or damage which it may be obliged to pay by reason of such infringement at any time during the prosecution of the Work or after completion of the Work.

6.18.2 The Design/Builder shall pay royalties and license fees.

6.19 Extension of Agreement Requirements to Subcontractors. By an appropriate agreement, written where legally required for validity, the Design/Builder shall require each subcontractor, to the extent of the Work to be performed by the subcontractor, to be bound to the Design/Builder by the terms of the Contract Documents, and to assume toward the Design/Builder all the obligations and responsibilities which the Design/Builder, by these Documents, assumes toward the City. Said agreement shall preserve and protect the rights of the City under the Contract Documents with respect to the Work to be performed by the subcontractor so that the subcontracting thereof will not prejudice such rights, and shall allow to the subcontractor, unless specifically provided otherwise in the Design/Builder-subcontractor agreement, the benefit of all rights, remedies and redress against the Design/Builder that the Design/Builder, by these Documents, has against the City. Where appropriate, the Design/Builder shall require each subcontractor to enter into similar agreements with his sub-subcontractors. The Design/Builder shall make available to each proposed subcontractor, prior to the execution of the subcontract, copies of the Contract Documents to which the subcontractor will be bound by this section, and identify to the subcontractor any terms and conditions of the proposed subcontract which may be at variance with the Contract Documents. Each subcontractor shall similarly make copies of such documents available to his sub-subcontractors.

6.20 Warranty. The Design/Builder warrants to the City that all materials and equipment furnished under this Agreement shall be of good quality and new unless otherwise required or permitted by the Contract Documents, and that all Work shall be of good quality, free from faults and defects and in conformance with the Contract Documents. All Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. If required by the City, the Design/Builder shall provide satisfactory evidence as to the kind and quality of materials and equipment furnished. This warranty shall not be a bar to future rejection if they are subsequently found to be defective, inferior in quality or uniformity, to the material or equipment specified, or are not as represented to the City.

6.20.1 Within one year after the date of final acceptance of the Work or within such longer period of time as may be prescribed by law or by the terms of any applicable special warranty required by the Contract Documents, the Design/Builder shall make all needed repairs arising out of defective workmanship or materials, or both, which in the judgment of the City shall become necessary during such period. If within ten (10) days after the mailing of a notice in writing to the Design/Builder or his agent, the Design/Builder shall neglect to make, or undertake with due diligence to make the aforesaid repairs, the City is hereby authorized to make such repairs at the Design/Builder’s expense. In case of an emergency, the Design/Builder will be notified and shall correct and make repairs within the necessary time constraints. Failure of the Design/Builder to respond to the notification shall result in the City making the necessary repairs at the Design/Builder’s expense. This obligation shall survive termination of this Agreement.

6.20.2 Should the City claim by written communication before the warranty period expires that certain defects exist and that these require repair or replacement, the warranty period and applicable surety shall be automatically extended for as long as these defects remain unremedied.

6.21 Title. The Design/Builder warrants that title to all Work, materials and equipment covered by an Application for Payment will pass to the City either by incorporation in the construction or upon the receipt of payment by the Design/Builder, whichever occurs first, free and clear of all liens, claims, security interests or encumbrances; and that no Work, materials or equipment covered by an Application for Payment will have been acquired by the Design/Builder, or by any other person performing Work at the site or furnishing materials and equipment for the Project, subject to an agreement under which an interest therein or an encumbrance thereon is retained…