2-Exhibit F - PCMC Construction Agreement.pdf

Construction Agreement | pg. 1

Template Updated 3-26 CONTRACT#_____________

CONSTRUCTION AGREEMENT

This Construction Agreement (“Agreement”) is between PARK CITY MUNICIPAL CORPORATION, a Utah municipal corporation (“PCMC”), and _________________________________________, a ________________ (insert state of incorporation) ______________________ (insert either “corporation” or “limited liability company”) (“Contractor”).

PURPOSE: For the project known as (the “Project”), located at . The Project consists of

The parties agree as follows:

SECTION 1. SCOPE OF WORK. Contractor shall furnish all labor, materials and equipment to complete the Project, consisting of the work described in the Information for Bidders as the Basic Bid, as specifically set out in the contract specifications, which is made a part hereof by reference.

The Project will be bound by the specifications referenced herein, according to the Invitation for Bids, the Instructions for Bidders, the General Project Requirements and Specifications, the Bid of the Contractor, Bid Bond, Drawings, Notice of Award and Notice to Proceed (collectively referred to as the “Contract Documents”), all of which are incorporated herein by reference and on file in the Engineering Department. To the extent that this Agreement conflicts in any way with a proposed form agreement which may have been submitted as part of the bid specifications, this Agreement shall control.

If any of the work performed by Contractor in any phase of the Project does not meet PCMC standards as outlined in the bid documents and specifications, then Contractor shall immediately repair or correct the work at no additional cost to PCMC.

A. Subcontractors. No part of this Agreement shall be subcontracted by the Contractor without prior written approval by PCMC through the Project Manager/Engineer. The Contractor shall be fully responsible to PCMC for the acts and omissions of its subcontractors and of persons either directly or indirectly employed by them as it is for the acts and omissions of persons directly employed by it.

If written approval is granted to subcontract a part of this Agreement, the Contractor shall require each subcontractor that physically performs services within Utah to submit an affidavit to the Contractor stating that the subcontractor has used E-Verify, or an equivalent program, to verify the employment status of each new employee.

Harrison.Holley Text Box

EXHIBIT F - PCMC CONSTRUCTION AGREEMENT

Construction Agreement | pg. 2

The Contractor shall, within 10 days of submittal of request for final payment, include an affidavit showing satisfactory evidence that all claims of subcontractors, laborers and material men who supplied services or materials to the Project have been fully paid, discharged, or waived. The Contractor shall submit lien waivers for each pay release.

If PCMC reasonably believes that Contractor has failed to pay Subcontractors, materialmen, or laborers for work on the Project within a reasonable time of when payment is due, then PCMC may, after having notified the Contractor, either pay unpaid bills or withhold from the release of Contractor's payment bond for this Project, a sum of money deemed reasonably sufficient to pay any and all such lawful claims until satisfactory evidence is furnished that all liabilities have been fully discharged and a 10% fee for administering such claims.

B. Standards of Workmanship. Contractor shall demonstrate workmanship equal to or better than current industry standards for this Project. Where PCMC specifications exist, (for example, asphalt, concrete, irrigation, sprinkling system and landscaping), they shall provide the benchmark for determination of acceptability.

C. Inspection and Testing. All materials and equipment used in the construction shall be subject to inspection by the Project Manager/Engineer. If laws, ordinances, rules or regulations of any public authority having jurisdiction require any work to specifically be inspected, tested, or approved by someone other than Project Manager/Engineer, the Contractor shall give the Project Manager/Engineer timely notice of readiness.

Inspections, tests or approvals by PCMC or appropriate authorities will not relieve the Contractor from obligations to perform the work in accordance with the requirements of the Contract Documents and/or provisions. The Project Manager/Engineer and other designated persons will at all times have access to the work. All work shall ultimately be inspected for final acceptance by the Project Manager/Engineer within a reasonable time upon receipt of notice from the Contractor that work is complete and ready for final inspection.

During construction, the work will be inspected and observed by the Project Manager/Engineer or his designated representative. All work that is deficient or does not meet specifications shall be removed and replaced with proper material at Contractor's expense.

D. Warranty. Contractor warrants that all materials and supplies used in the construction of the Project shall be new, except as otherwise agreed to in writing by PCMC's Representative. All materials, equipment, parts and labor and any necessary corrections to the Project shall be guaranteed for a period of at least one year following the date of substantial completion of the Project under the terms of the performance bond or as provided in the project specifications and construction documents, whichever is longer.

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E. Adopted Codes. All work shall be completed at a minimum in accordance with all building, electric and energy codes adopted by PCMC.

SECTION 2. PERFORMANCE AND PAYMENT BONDS. Contractor shall furnish to PCMC payment and performance bonds in a form approved by the City Attorney’s Office guaranteeing Contractor's payment and performance, in the amount, for each separately, of 100% of the Agreement Amount.

{OPTIONAL}: At City’s discretion, Contractor shall also furnish a warranty bond on AIA Form A313, or as satisfactory to the City.

The Surety furnishing these Bonds must be listed in the latest revision of the “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies” as published in Circular 570 (as amended) by the Financial Management Service, Surety Bond Branch, U.S. Department of the Treasury. The amount of the bond issued shall not exceed the single bond limit as stated in Circular 570.

The Surety shall be licensed and in good standing with the State of Utah and shall have at least an A- policyholder’s rating and a Class VII financial rating in the latest issue of Best's Key Rating Guide.

SECTION 3. INSURANCE. At its own cost and expense, Contractor shall maintain the following mandatory insurance coverage to protect against claims for injuries to persons or property damage that may arise from or relate to the performance of this Agreement by Contractor, its agents, representatives, employees, or Subcontractors for the entire duration of this Agreement or for such longer period of time as set forth below. Prior to commencing any work, Contractor shall furnish a certificate of insurance as evidence of the requisite coverage. The certificate of insurance must include endorsements for additional insured, waiver of subrogation, primary and non-contributory status, and completed operations.

A. Commercial General Liability Insurance. Contractor shall maintain commercial general liability insurance on a primary and non-contributory basis in comparison to all other insurance, including PCMC’s own policies of insurance, for all claims against PCMC.

The policy must be written on an occurrence basis with limits not less than $2,000,000 per occurrence and $3,000,000 aggregate for personal injury and property damage.

Coverage shall include but not be limited to: blanket contractual; products/completed operations; explosion, collapse and underground (XCU) if specifically requested; and employer's practices. Upon request of PCMC, Contractor must increase the policy limits to at least the amount of the limitation of judgments described in Utah Code § 63G-7- 604, the Governmental Immunity Act of Utah (or successor provision), as calculated by the state risk manager every two years and stated in Utah Admin. Code R37-4-3 (or successor provision).

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B. Automobile Liability Coverage. Contractor shall maintain automobile liability insurance with a combined single limit of not less than $2,000,000 per accident for bodily injury and property damage arising out of the ownership, maintenance, and use of owned, hired, and non-owned motor vehicles. This policy must not contain any exclusion or limitation with respect to loading or unloading of a covered vehicle.

C. Workers’ Compensation Insurance and Employer’s Liability. Contractor shall maintain workers’ compensation insurance with limits not less than the amount required by statute, and employer’s liability insurance limits of at least $1,000,000 each accident, $1,000,000 for bodily injury by accident, and $1,000,000 each employee for injury by disease. The workers’ compensation policy must be endorsed with a waiver of subrogation in favor of “Park City Municipal Corporation” for all work performed by the Contractor, its employees, agents, and Subcontractors.

D. Builder’s Risk Insurance (Course of Construction) (at PCMC’s discretion).

Contractor shall maintain Builder’s Risk (Course of Construction) insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions. Such coverage shall name “Park City Municipal Corporation” as an additional insured.

E. Contractor’s Pollution Liability (at PCMC’s discretion). Contractor shall maintain Contractors Pollution Liability insurance, on an occurrence basis, with limits of $1,000,000 per occurrence and $2,000,000 aggregate, covering third-party injury and property damage claims, including clean-up costs, as a result of pollution conditions arising from the Contractor’s operations and completed operations. This coverage must include an Over the Road Pollution enhancement. The insurance shall be maintained for no less than three years after final completion.

F. Insured Parties. Each policy and all renewals or replacements, except those policies for Workers Compensation and Employer’s Liability, must name PCMC (and its officers, agents, and employees) as additional insureds on a primary and non-contributory basis with respect to liability arising out of work, operations, and completed operations performed by or on behalf of Contractor.

G. Waiver of Subrogation. Contractor waives all rights against PCMC and any other additional insureds for recovery of any loss or damages to the extent these damages are covered by any of the insurance policies required under this Agreement. Contractor shall cause each policy to be endorsed with a waiver of subrogation in favor of PCMC for all work performed by Contractor, its employees, agents, and Subcontractors.

H. Quality of Insurance Companies. All required insurance policies must be issued by insurance companies qualified to do business in the state of Utah and listed on the United States Treasury Department's current Department of Treasury Fiscal Services List 570, or

Construction Agreement | pg. 5 having a general policyholders rating of not less than "A-" in the most current available A.M. Best Co., Inc.'s, Best Insurance Report, or equivalent.

I. Cancellation. Should any of Contractor’s required insurance policies under this Agreement be cancelled before the termination or completion of this Agreement, Contractor must deliver notice to PCMC within 30 days of cancellation. PCMC may request and Contractor must provide within 10 days certified copies of any required policies during the term of this Agreement.

J. Additional Coverage. Notwithstanding anything to the contrary, if Contractor has procured any insurance coverage or limits (either primary or on an excess basis) that exceed the minimum acceptable coverage or limits set forth in this Agreement, the broadest coverage and highest limits actually afforded under the applicable policy(ies) of insurance are the coverage and limits required by this Agreement and such coverage and limits must be provided in full to the additional insureds and indemnified parties under this Agreement. The parties expressly intend that the provisions in this Agreement will be construed as broadly as permitted to be construed by applicable law to afford the maximum insurance coverage available under Contractor’s insurance policies.

K. No representation. In specifying minimum Contractor’s insurance requirements, PCMC does not represent that such insurance is adequate to protect Contractor from loss, damage or liability arising from its work. Contractor is solely responsible to inform itself of types or amounts of insurance it may need beyond these requirements to protect itself.

SECTION 4. AGREEMENT AMOUNT, ACCEPTANCE OF WHOLE, ADDITIONS. PCMC shall pay Contractor a total sum not to exceed $(numerically) (“Agreement Amount”) for all work and materials expended to complete this Project, which shall include the cost of all bonds, insurance, and all charges, fees, permits (including water and sewer fees, unless waived), expenses or assessments of whatever kind or character that are or may be necessary to complete this Project, including any additive alternates listed within the scope of work described in Section 1.

SECTION 5. PERMITS AND FEES. As set out in Section 4 above, the Agreement Amount includes the price of all normally applicable fees and permits. PCMC may, at its discretion, arrange for the waiver of certain fees, permits and expenses.

SECTION 6. TERMS OF PAYMENT. PCMC shall pay for services provided hereunder according to and in an aggregate amount not to exceed the Agreement Amount or as detailed in an attached payment schedule (if attached, will be Attachment A) and only upon Contractor's request on forms approved by and submitted to the Project Manager. PCMC shall make payment within 30 days thereafter. Requests for a more rapid payment may be considered if a discount is offered for early payment. At no time shall the aggregate amount of money paid to the Contractor in proportion to the Agreement Amount be greater than the proportion of the work performed at that point to the total Project work. No payment shall be made for any service rendered by the Contractor except for services set forth and identified in this Agreement. PCMC reserves the right

Construction Agreement | pg. 6 to withhold payment in whole or part from the Contractor for non-compliance with the provisions of the Contract Documents.

A. Retainage. PCMC may, in its sole discretion (1) retain 5% of the value of all work done and materials or equipment supplied as part security for the fulfillment of the Agreement by the Contractor; or (2) retain the final payment of up to 5% of the total Project amount. As work nears completion and solely at PCMC's discretion, PCMC may reduce the retainage to an amount more in line with the work remaining. PCMC reserves the right to retain all amounts previously withheld or due, including any liquidated damages, until all services specified herein are complete. Any money withheld pursuant to this section shall be placed in an interest bearing account and the interest shall also be payable to the Contractor upon final payment.

Before final payment is made, the Contractor must submit evidence satisfactory to PCMC that all payrolls, material bills, subcontracts and all outstanding indebtedness in connection with the Project have been paid for.

PCMC may withhold a reasonable amount of the payment bond sufficient to cover any outstanding indebtedness or monies owed or claimed by any person who supplied work or materials to the Project plus 10% of such indebtedness as PCMC's cost of administering such claims until Contractor supplies a release satisfactory to PCMC, signed by all persons who have supplied labor or materials to the Project or, at PCMC's option if no claim is made, until 105 days after the date on which any person performed the last of the labor or supplied the last of the material for the Project and upon written request from the Contractor.

The Contractor shall supply to the Project Manager/Engineer within a reasonable time after his/her request a signed statement verifying all the suppliers, subcontractors, and other persons who have supplied labor or materials to the Project.

B. Final Payment. Acceptance by the Contractor of the final payment from PCMC shall release PCMC of all claims, demands and liability of the Contractor, its officers, agents, employees and subcontractors, whether communicated or not by the Contractor, except with respect to those matters referred to in writing delivered to the Contractor and approved in a signed writing by the Project Manager.

SECTION 7. COMPLETION TIME. The work on this Project shall commence within 10 days of receipt of the Notice to Proceed and shall be completed by . Work stoppage due to inclement weather conditions and other factors must be approved in writing by the Project Manager. Inclement weather shall not otherwise constitute cause for delay. Unless otherwise agreed by PCMC by change order, no damages shall become due to Contractor for PCMC-caused delay. A change order for delay will generally be accepted for delay so excessive and unreasonable that it is beyond the scope of the Agreement or delay attributed to direct, Construction Agreement | pg. 7 active or willful interference by PCMC. The change order must be based upon actual damages sustained by the Contractor which are directly attributed to the delay.

In the event that Contractor fails to complete all of the work required herein within the time limit set out above, then for each partial or complete day during which the work remains uncompleted thereafter, the Contractor agrees to pay PCMC $___________ (______) - Contractor Initials) which the parties believe, due to the difficulty of actually assessing the damages PCMC will suffer in the event of such a delay, is a fair estimate of the loss PCMC will suffer. The parties agree that the daily liquidated damages provided for herein is reasonable and fair and is not a penalty. TIME

IS OF THE ESSENCE IN THIS AGREEMENT.

SECTION 8. ADDITIONAL WORK/CHANGE ORDERS. PCMC may enlarge or reduce the work to be performed by Contractor hereunder by written notification to Contractor, including changes to the plans and specifications. PCMC shall pay Contractor for any additional work so requested, and shall reduce the payment to the Contractor for any reduction in labor, materials, overhead and profit margin resulting from the reduction in the work. Except as PCMC shall so notify the Contractor in writing, it is understood and agreed by the parties hereto that no money will be paid to the Contractor for any new or additional labor or materials furnished unless a written modification is agreed to in a document signed by both parties.

The value of any work covered by a change order or of any claim for increase or decrease in the Agreement Amount shall be determined by one or more of the following methods in order of precedence listed below:

A. An agreed lump sum; or in the event the parties cannot agree; then

B. The unit rate for the work bid by the Contractor, if applicable, or in the event there was no such rate bid; then

C. The actual cost for: (1) labor; (2) materials; (3) supplies; (4) equipment; (5) direct overhead (not to exceed 5% of the sum total of items 1–4, unless approved by PCMC);

and (6) other services necessary and approved by PCMC to complete the work. In the event of a net increase in the Agreement Amount for a change order as a whole, PCMC shall allow a payment to the Contractor of an additional 10% of the actual cost of the work, not including direct overhead or bond costs, to cover the cost of general overhead and profit. The Contractor may also charge PCMC for actual cost of the net increase in bond costs as a result of the overall change to the Agreement Amount. PCMC specifically reserves the right to request documentation, including, but not limited to, payroll stubs, bond bills, and invoices, to validate the Contractor’s calculations.

SECTION 9. DISPUTES. Except as otherwise provided in this Agreement, any disputes concerning a question of fact arising under this Agreement which are not disposed of by agreement shall be decided by PCMC. The decision of PCMC shall be final and conclusive unless, within 30 days from the date of receipt of such decision the Contractor shall mail or otherwise furnish PCMC a written

Construction Agreement | pg. 8 signed appeal addressed to the Project Manager/Engineer. In connection with any appeal proceeding under this clause, the Contractor will be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Contractor will proceed diligently with the performance of this Agreement and in accordance with PCMC's decision. The decision of PCMC shall be final and conclusive but shall not be arbitrary or unreasonable. Although this Agreement has been drafted by PCMC, the Contractor expressly agrees that any ambiguity herein shall be resolved in favor of PCMC.

SECTION 10. DEFAULT, REMEDY AND TERMINATION. PCMC may terminate this Agreement upon the occurrence of one or more of the following events:

A. If Contractor or any subcontractor should substantially violate any of the provisions of this Agreement;

B. If Contractor substantially fails to perform any part of this Agreement;

C. If Contractor repeatedly fails or becomes unable to perform the services under this Agreement as required herein, or substantially fails to provide services under this Agreement for a period of 72 hours;

D. If Contractor (1) shall become insolvent in a bankruptcy case; (2) shall be generally not paying its debts as they become due, or within a reasonable time thereafter; (3) shall suffer, voluntarily or involuntarily, the entry of an order by any court or governmental authority authorizing the appointment of or appointing of a custodian (as that term is defined in 11 U.S.C. §101(11)), receiver, trustee, or other officer with similar powers with respect to it or any portion of its property which remains undismissed for a period of 90 days; (4) shall suffer, voluntarily or involuntarily, with or without judicial or governmental authorization, any such custodian, receiver, trustee, or other officer with similar powers to take possession of any part of its property which third party remains in possession for an excess of 90 days; (5) shall suffer, voluntarily or involuntarily, the filing of a petition respecting an assignment for the benefit of creditors which is not dismissed for a period of 90 days; (6) shall be dissolved; (7) shall become the subject of any proceeding, suit, or action at law or in equity under or relating to any bankruptcy, reorganization or arrangement of debt, insolvency, readjustment of debt, receivership, liquidation, or dissolution law or statute or amendments thereto to be commenced by or against it or against any of its property which remains undismissed for a period of 90 days; (8) shall voluntarily suspend substantially all of its business operations; (9) shall be merged with, acquired by, or otherwise absorbed by any individual, corporation, or other business entity or organization of any kind except for any individual corporation or other business entity or organization which is controlled by, controlling, or under common control with the Contractor; or (10) shall take action for the purpose of any of the foregoing.

After serving 10 days written notice on the Contractor and its surety of its intention to terminate the services of Contractor, and if within 10 days after serving such notice, the violation is not

Construction Agreement | pg. 9 corrected to PCMC's reasonable satisfaction, PCMC then may take over the work and prosecute it to completion by contract or by any other method it may deem advisable at the expense of the Contractor. The Contractor and the bonding company shall be liable to PCMC for any reasonable cost occasioned by PCMC in excess of the amount agreed to for the service herein.

The Contractor shall be entitled to a hearing before a PCMC hearing officer upon the issue of termination if it submits a written request therefore within seven days of the service of the notice of PCMC's intent to terminate. The Contractor shall be entitled to be heard at such hearing on the issue of termination. The Contractor shall not bring an action against PCMC, its officers, agents or employees arising out of or relating to the termination of this Agreement before the decision is issued by PCMC's hearing officer(s).

Waiver of any default shall not be deemed to be a waiver of any subsequent default. Waiver of any provision of this Agreement shall not be construed to be modification of the terms of this Agreement, unless stated to be such in writing, signed by PCMC's authorized representative.

The Contractor shall continue the performance of this Agreement to the extent not terminated under the provisions of this section.

The rights and remedies of PCMC provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement.

SECTION 11. INDEMNIFICATION.

A. Definitions. In this Agreement, the following definitions apply:

(1) “Indemnifiable Losses” means the aggregate of Losses and Litigation Expenses.

(2) “Litigation Expense” means any reasonable out-of-pocket expense incurred in defending a Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements.

(3) “Loss” means any amount awarded in, or paid in settlement of, any Proceeding, including any interest but excluding any Litigation Expenses.

(4) “Proceeding” means any investigation, claim, judicial, administrative, or arbitration action or lawsuit, or other cause of action of every kind or character, brought by third parties against PCMC, its agents, employees, or officers, that arises out of this Agreement or the performance of this Agreement by Contractor or its Subcontractors or subconsultants of any tier, or anyone acting under Contractor’s direction or control, including after the expiration or termination of this Agreement.

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B. Indemnification. Contractor shall indemnify PCMC and its agents, employees, and officers against all Losses arising out of a Proceeding, to the extent caused by or resulting from the Contractor’s breach of contract, negligence, recklessness, or intentional misconduct, or the negligence of Contractor’s Subcontractor. If such Losses are caused by or result from the concurrent negligence of the PCMC or its agents, employees, and officers, this indemnity provision shall be valid and enforceable to the extent of the Contractor’s breach of contract, negligence, recklessness, or intentional misconduct; or negligence of Contractor’s Subcontractor.

C. Reimbursement of Litigation Expenses. Contractor shall reimburse PCMC for all Litigation Expenses to the extent they were incurred due to Contractor’s breach of contract, negligence, recklessness, or intentional misconduct; or the negligence of Contractor’s Subcontractor.

D. Waiver. Contractor expressly agrees that the indemnification provision herein constitutes the Contractor’s waiver of immunity under Utah Code § 34A-2-105 for the purposes of this Agreement. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement.

No liability shall attach to PCMC by reason of entering into this Agreement except as expressly provided herein.

E. No Limitation. The indemnification obligations of this Agreement shall not be reduced by a limitation on the amount or type of damages, compensation, or benefits payable by or for the Contractor or Subcontractor under workers’ compensation acts, disability benefits acts, or other employee benefit acts.

F. Interpretation. The parties intend that the indemnity and defense provisions in this Article shall be interpreted so as to be enforceable to the fullest extent permitted by law, but nothing herein shall be interpreted to violate public policy.

G. Environmental Indemnity. Contractor shall indemnify PCMC, its agents, employees, and officers for any Indemnifiable Losses from a Proceeding arising out of Contractor’s violation of federal, state, or local environmental laws or regulations, and shall include but not be limited to all cleanup and remedial costs, diminution in value of property, and any fines or fees imposed as a result.

SECTION 12. GOVERNING LAW, JURISDCTION AND VENUE. These general conditions shall be construed in accordance with and enforced under the laws of the State of Utah. Any action of law, suit in equity, or judicial proceeding for the enforcement of the Agreement, or any provisions thereof, shall be instituted and maintained only in any of the courts of competent jurisdiction in Summit County, Utah.

SECTION 13. ASSIGNMENT. The Contractor shall not assign nor transfer any interest in this Agreement without the prior written consent of PCMC, provided however, that claims for

Construction Agreement | pg. 11 compensation due or to become due the Contractor from PCMC under this Agreement may be assigned to a bank, trust company, or other financial institution without such approval. Written notice of any such assignment shall be promptly furnished to PCMC.

SECTION 14. SAFETY AND TRAFFIC CONTROL. Contractor shall take all reasonable precautions to protect the safety of pedestrians, school children, motorists, and others who may use or come near to the Project site, including, but not limited to, compliance with the Manual of Uniform Traffic Control Devices.

SECTION 15. SAFETY AND PROTECTION OF THE WORK. Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Project work. Contractor shall provide reasonable protection to prevent damage, injury or loss to employees on the Project work and all other persons who may be affected thereby, materials and equipment, whether on or off the site, and other property at the work site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. In addition, the Contractor shall give all notices and comply with all applicable laws, ordinances, rules, regulations and lawful orders of any public authority bearing on the safety of persons or property or their protection from damage, injury or loss.

The Contractor shall erect and maintain, as required by the existing conditions and progress of the work, all reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, setting safety regulations, and notifying owners and user of adjacent utilities.

The Contractor shall promptly remedy all damage or loss to any property referred to in this section caused in whole or in party by the Contractor, any subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable and for which the Contractor is responsible, except for acts or omissions by PCMC or anyone directly or indirectly employed by it, or by anyone for whose acts it may be liable, and not attributable to the fault or negligence of the Contractor. Contractor shall remove from the site all cuttings, debris, equipment and unused material.

SECTION 16. SEVERABILITY; WAIVERS. In the event that any provision of this Agreement shall be ruled invalid and unenforceable, the remaining provisions shall be valid and binding upon the parties. One or more waivers by either party of any provision, term, or covenant shall not be construed by the other party as a waiver of a subsequent breach of the same provision by the other party.

SECTION 17. ENTIRE AGREEMENT. This Agreement represents the entire integrated agreement between PCMC and Contractor and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written modification signed by both parties.

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SECTION 18. COMMENCEMENT OF WORK. Contractor will commence work as required by the specifications within 10 calendar days after receiving the Notice to Proceed.

SECTION 19. UTILITIES. The right is reserved to the owners of public utilities and franchises to enter upon the street or work site for the purpose of making repairs or changes of their property that may become necessary by the work. PCMC shall also have the privilege of entering upon the street or work site for the purpose of repairing culverts, storm drains, water system repairs or adjustments, and any and all other necessary PCMC work.

The Contractor takes the whole risk, responsibility and expense with respect to the location of utilities, and in working with utility owners about locating, moving, repairing, and modifying utilities. All utility locations shown on the plans and specifications are approximate and are marked on the plans, if at all, only for convenience. PCMC makes no representation about the location of any such utilities, and Contractor is encouraged to contact utility companies and owners about the location of all utilities that may be impacted by or impact the Project work.

SECTION 20. HOURS AND DAYS OF WORK. All work performed by the Contractor, its subcontractors, materialmen, agents and employees shall be performed during work hours of 7:00 a.m. to 9:00 p.m. Monday through Saturday unless otherwise specified in a Conditional Use Permit or Construction Mitigation Plan. In individual Construction Mitigation Plans, the Building Official may further reduce the hours or days of work for special events or as other circumstances may reasonably warrant. When work is prohibited, no exterior construction, excavation or delivery of supplies and concrete are allowed. Interior work, however, may be allowed Monday through Sunday, with no limitation on hours for the following types of construction:

A. Interior work on individual single-family home construction or addition projects not involving materials or supply deliveries.

B. Construction of decks, patios, landscape walls less than four feet in height, and fences on individual single-family lots.

C. Non-mechanized exterior painting on individual single-family residences.

D. Non-mechanized landscaping on individual single-family residences.

E. Survey work not involving grading or use of power equipment to cut vegetation.

F. Extended Hours Special Permit. The Building Official may authorize extended hours for construction operations or procedures which, by their nature, require continuous operation, or modify or waive the hours of work on projects in generally isolated areas where the extended hours do not impact upon adjoining property occupants. In such cases, the Building Official shall issue a special permit identifying the extended hours. Contractor shall display the special permit on site.

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G. Special Event Regulations. The Building Official and/or Police Chief may, at their discretion, restrict construction activity, including governmental or special improvement agencies, in order to assure the public safety during special events within Park City.

Special events shall include, but not be limited to, the Art Festival, Film Festival, ski events, and holiday events.

SECTION 21. CONSTRUCTION MITIGATION PLAN. Contractor shall submit a Construction Mitigation Plan to be approved by the City Engineer or his/her designee, for all building permits as required by Park City Code and regulations. This plan shall be written and shall address, to the satisfaction of the City Engineer, all requirements of applicable Park City Code and regulations.

SECTION 22. TOILET FACILITIES AND CONTAINERIZED TRASH SERVICE REQUIRED.

A. The Contractor shall obtain and maintain on the site a container of suitable size and design to hold and confine trash, scraps, and other construction related refuse created or accumulated on the site. All such construction refuse shall be maintained in a closed container at all times, until transferred to the landfill. Containers may be placed in setback areas, provided that the placement of the container does not obstruct the view of motorists on adjoining streets and thereby create traffic hazards. Contractor shall not permit accumulated debris, litter, or trash on the construction site to blow or scatter onto adjoining properties, including the public street, or to accumulate on the site outside of the container, or in transit to the landfill or dump. The owner or Contractor shall service the container as frequently as needed to prevent trash from over-flowing.

B. The Project site shall have permanent toilets, or an approved temporary toilet facility positioned in a location approved by the Building Department, at the rate of one toilet per fifteen on-site employees (1-15 employees = one toilet, 16-30 employees= two toilets and so on).

SECTION 23. OBEY LAWS.

A. The Contractor shall obey all laws, ordinances and regulations of the United States, the State of Utah, and PCMC in performing this Agreement.

B. The Contractor shall register and participate in E-Verify, or an equivalent program.

The Contractor agrees to verify employment eligibility through E-Verify, or an equivalent program, for each new employee that is employed within Utah, unless exempted by Utah Code § 63G-12-302.

SECTION 24. NONDISCRIMINATION.

Contractor shall not discriminate against any employee or applicant for employment because of race; ethnicity; color; pregnancy, childbirth, or pregnancy-related conditions; age, if the

Construction Agreement | pg. 14 individual is 40 years of age or older; religion; national origin; disability; sexual orientation;

gender identity; or military status.

A. Contractor shall implement an employment nondiscrimination policy, if Contractor does not already have such a policy, to effectuate the prohibition in this section; and

B. Contractor shall incorporate the foregoing non-discrimination provisions in all subcontracts or assignments under this Agreement and take action as required to ensure full compliance with the provisions of this non-discrimination policy.

SECTION 25. THIRD-PARTY RIGHTS. Nothing herein is intended to confer rights of any kind in any third party. No member, officer, or employee of PCMC shall have any interest, direct or indirect, in this Agreement or the proceeds thereof.

SECTION 26. PROJECT MANAGER/ENGINEER. The Project Manager/Engineer for this Project is , or such other person designated by the City Engineer or Public Works Director to the Contractor orally or in writing. The Project Manager/Engineer will serve as PCMC’s Representative for the project.

SECTION 27. NOTICES. For a notice or other communication to a party under this Agreement to be valid, it must be addressed using the information specified below for that party or any other information specified by that party in a notice delivered in accordance with this section.

To PCMC: Park City Municipal Corporation

P.O. Box 1480 Park City, UT 84060-1480 Attn: City Attorney’s Office PCMC_Notices@parkcity.gov

With a copy to:

PCMC’s Representative pursuant to Section 26.

PCMC’s City Recorder at michelle.kellogg@parkcity.gov

Construction Agreement | pg. 15

To Contractor: [Name] [Address Line 1] [Address Line 2] [Email address]

Each party is signing this Agreement on the date stated opposite that party’s signature.

PARK CITY MUNICIPAL CORPORATION, a Utah municipal corporation

Date: ________________________ By: ________________________________ Adam Lenhard, City Manager

Attest:

City Recorder’s Office

Approved as to form:

City Attorney’s Office

[CONTRACTOR]

Utah Contractor License # Tax ID #

Date: ________________________ By: ________________________________

[insert name of individual signing] [insert title of individual signing] An authorized signer