3-Contractors-Agreement (1).docx

CONTRACTOR'S AGREEMENT

Project Name: [[ Construction Project Name ]] Project Number: [[ Construction Project Number ]]

Notice:

THIS CONTRACTOR'S AGREEMENT, made and entered into on [[ Start Date ]] by and between SALT LAKE COMMUNITY COLLEGE, hereinafter referred to as "SLCC", and [[ Name (Primary Second Party) ]], incorporated in the State of [[ State/Province (Primary Second Party) ]] and authorized to do business in the State of Utah, hereinafter referred to as "Contractor", whose address is [[ Street Line 1 (Primary Second Party) ]], [[ City/Town (Primary Second Party) ]] [[ State/Province (Primary Second Party) ]], [[ Postal Code (Primary Second Party) ]].

WITNESSETH: WHEREAS, SLCC intends to have Work performed at [[ Construction Location ]].

WHEREAS, Contractor agrees to perform the Work for the sum stated herein.

NOW, THEREFORE, SLCC and Contractor for the consideration provided in this Contractor's Agreement, agree as follows:

ARTICLE 1. SCOPE OF WORK. The Work to be performed shall be in accordance with the Contract Documents prepared by [[ Architect/Engineer ]] and entitled “[[ Name of Design File ]].”

The DFCM General Conditions (“General Conditions”) which are current as of the date of this Agreement and all Supplemental General Conditions (“also referred to as General Conditions”) on file at the office of DFCM and available on the DFCM website (https://dfcm.utah.gov/construction-management/#documents), are hereby incorporated by reference as part of this Agreement and are included in the specifications for this Project.

Anywhere in the DFCM General Conditions or other documents incorporated into this agreement by reference, the following terms will be defined as listed. “Division of Facilities Construction & Management,” “SLCC,” “Owner,” or “State of Utah” shall refer to Salt Lake Community College. “Project Manager,” “SLCC Project Manager,” or “Owner’s Representative” shall refer to ([[ Construction Project Manager ]]). “Director” shall refer to Brandon Thomas. “Executive Director” shall refer to Chris Martin. All other terms used in this Contractor's Agreement and in all other documents incorporated by reference shall be as defined in the General Conditions.

The Contractor Agrees to furnish labor, materials and equipment to complete the Work as required in the Contract Documents which are hereby incorporated by reference. It is understood and agreed by the parties hereto that all Work shall be performed as required in the Contract Documents and shall be subject to inspection and approval of SLCC or its authorized representative. The relationship of the Contractor to SLCC hereunder is that of an independent Contractor.

ARTICLE 2. CONTRACT SUM. SLCC agrees to pay and the Contractor agrees to accept in full performance of this Contractor's Agreement, the sum of $[[ Contract Amount ]], which sum also includes the cost of a 100% Performance Bond and a 100% Payment Bond as well as all insurance requirements of the Contractor. Said bonds have already been posted by the Contractor pursuant to State law. The required proof of insurance certificates have been delivered to SLCC in accordance with the General Conditions before the execution of this Contractor's Agreement.

ARTICLE 3. TIME OF COMPLETION AND DELAY REMEDY. The Work shall be Substantially Complete by [[ Substantial Completion Date ]]. Contractor agrees to pay liquidated damages in the amount of $[[ Liquidated Damages ]] per day for each day after expiration of the Contract Time until the Contractor achieves Substantial Completion in accordance with the Contract Documents, if Contractor's delay makes the damages applicable. The provision for liquidated damages is: (a) to compensate SLCC for delay only; (b) is provided for herein because actual damages cannot be readily ascertained at the time of execution of this Contractor's Agreement; (c) is not a penalty; and (d) shall not prevent SLCC from maintaining Claims for other non-delay damages, such as costs to complete or remedy defective Work.

No action shall be maintained by the Contractor, including its or Subcontractor or suppliers at any tier, against SLCC or State of Utah for damages or other claims due to losses attributable to hindrances or delays from any cause whatsoever, including acts and omissions of SLCC or its officers, employees or agents, except as expressly provided in the General Conditions. The Contractor may receive a written extension of time, signed by SLCC, in which to complete the Work under this Contractor's Agreement in accordance with the General Conditions.

ARTICLE 4. CONTRACT DOCUMENTS. The Contract Documents consist of this Contractor's Agreement, the Conditions of the Contract (DFCM General Conditions, Supplementary and other Conditions), the Drawings, Specifications, Addenda and Modifications. The Contract Documents shall also include the bidding documents, including the Notice to Contractors, Instructions to Bidders/Proposers and the Bid/Proposal, to the extent not in conflict therewith and other documents and oral presentations that are documented as an attachment to the contract.

All such documents are hereby incorporated by reference herein. Any reference in this Contractor's Agreement to certain provisions of the Contract Documents shall in no way be construed as to lessen the importance or applicability of any other provisions of the Contract Documents. In the event of any conflict between the Contractor’s Agreement and the DFCM General Conditions or Supplementary Conditions, the Contractor’s Agreement will take precedence.

ARTICLE 5. PAYMENT. SLCC agrees to pay the Contractor from time to time as the Work progresses, but not more than once each month after the date of Notice to Proceed, and only upon Certificate of the A/E for Work performed during the preceding calendar month, ninety-five percent (95%) of the value of the labor performed and ninety-five percent (95%) of the value of materials furnished in place or on the site. The Contractor agrees to furnish to SLCC invoices for materials purchased and on the site but not installed, for which the Contractor requests payment and agrees to safeguard and protect such equipment or materials and is responsible for safekeeping thereof and if such be stolen, lost or destroyed, to replace same.

Such evidence of labor performed and materials furnished as SLCC may reasonably require shall be supplied by the Contractor at the time of request for Certificate of Payment on account. Materials for which payment has been made cannot be removed from the job site without SLCC's written approval. Five percent (5%) of the earned amount shall be retained from each monthly payment. The retainage, including any additional retainage imposed and the release of any retainage, shall be in accordance with UCA 13-8-5 as amended. Contractor shall also comply with the requirements of UCA 13-8-5, including restrictions of retainage regarding subcontractors and the distribution of interest earned on the retention proceeds. SLCC shall not be responsible for enforcing the Contractor’s obligations under State law in fulfilling the retention law requirements with subcontractors at any tier.

ARTICLE 6. INDEBTEDNESS. Before final payment is made, the Contractor must submit evidence satisfactory to SLCC that all payrolls, materials bills, subcontracts at any tier and outstanding indebtedness in connection with the Work have been properly paid. Final Payment will be made after receipt of said evidence, final acceptance of the Work by SLCC as well as compliance with the applicable provisions of the General Conditions.

Contractor shall respond immediately to any inquiry in writing by SLCC as to any concern of financial responsibility and SLCC reserves the right to request any waivers, releases or bonds from Contractor in regard to any rights of Subcontractors (including suppliers) at any tier or any third parties prior to any payment by SLCC to Contractor.

ARTICLE 7. ADDITIONAL WORK. It is understood and agreed by the parties hereto that no money will be paid to the Contractor for additional labor or materials furnished unless a new contract in writing or a Modification hereof in accordance with the General Conditions and the Contract Documents for such additional labor or materials has been executed. SLCC specifically reserves the right to modify or amend this Contractor's Agreement and the total sum due hereunder either by enlarging or restricting the scope of the Work.

ARTICLE 8. INSPECTIONS. The Work shall be inspected for acceptance in accordance with the General Conditions.

ARTICLE 9. DISPUTES. Any dispute, PRE or Claim between the parties shall be subject to the provisions of Article 7 of the General Conditions. SLCC reserves all rights to pursue its rights and remedies as provided in the General Conditions.

ARTICLE 10. TERMINATION, SUSPENSION OR ABANDONMENT. This Contractor’s Agreement may be terminated, suspended or abandoned in accordance with the General Conditions.

ARTICLE 11. SLCC'S RIGHT TO WITHHOLD CERTAIN AMOUNT AND MAKE USE

THEREOF. SLCC may withhold from payment to the Contractor such amount as, in SLCC's judgment, may be necessary to pay just claims against the Contractor or Subcontractor at any tier for labor and services rendered and materials furnished in and about the Work. SLCC may apply such withheld amounts for the payment of such claims in SLCC's discretion. In so doing, SLCC shall be deemed the agent of Contractor and payment so made by SLCC shall be considered as payment made under this Contractor's Agreement by SLCC to the Contractor. SLCC shall not be liable to the Contractor for any such payment made in good faith. Such withholdings and payments may be made without prior approval of the Contractor and may be also be prior to any determination as a result of any dispute, PRE, Claim or litigation.

ARTICLE 12. INDEMNIFICATION. The Contractor shall comply with the indemnification provisions of the General Conditions.

ARTICLE 13. INSURANCE. For projects greater than $100,000, the insurance requirements outlined in the DFCM General Conditions, Article 10 shall govern. For projects less than $100,000, the insurance requirements outlined herein shall govern.

Prior to the Commencement Date Contractor shall purchase from and maintain in a company or companies licensed to do business in the State of Utah and rated “A-“ or better by the A. M. Best Company the following insurance coverage (or greater if required by law) with deductibles per claim/occurrence of not greater than $10,000: (a) Workers’ compensation—statutory limits; (b) Employer’s liability—$2,000,000; (c) Comprehensive Automobile Liability Insurance—combined single limits (covering bodily injury liability, death and property damage) of not less than $1,000,000 each occurrence and $2,000,000 annual aggregate and which names SLCC as an additional insured; and (d) General Liability Insurance written on a Commercial General Liability Coverage Form (provided on an “occurrence” form and not on a “claims made” form) which shall name SLCC as an additional insured by endorsement to the policy and which coverages shall include Broad Form Property Damage, Blanket Contractual Liability, Independent Contractor’s Liability, Products-Completed Operations (which shall be maintained without interruption by Contractor for a period of 2 years from the Completion Date), Personal and Advertising Injury and X, C and U (explosion, collapse and underground) hazards. The limits of Contractor’s General Liability Insurance shall be not less than $1,000,000 combined single limit (bodily injury, death and property damage combined) each occurrence, $2,000,000 general annual aggregate limit, $2,000,000 Products-Completed operations annual aggregate limit and $2,000,000 personal and advertising injury limit. Contractor shall require Contractor’s subcontractors to secure and maintain the same insurance coverages, with the same minimum deductibles, the same minimum limits of liability and for the same period of time as required of Contractor by this paragraph unless this requirement is waived in writing by SLCC. If Contractor employs, directly or indirectly, any “Design Professional(s)” as that term is defined in Utah Code § 13-8-7 as that term is defined in Utah Code § 13-8-7 in connection with this Project, Contractor shall require such Design Professional(s) to secure and maintain throughout the period of this Project and for a period of 3 years after the Completion Date professional liability insurance for errors or omissions in the design services provided by the Design Professional(s) with respect to this Project, procured from companies authorized to do business in the State of Utah and rated A- or better by the A. M. Best Company, with deductibles per claim of not greater than $100,000, and with limits of liability of not less than $1,000,000 per claim; $2,000,000 annual aggregate. If the professional liability insurance required by this Contract contains a design/build exclusion applicable to the design services required by the Contract Documents, the policy shall be endorsed to delete such exclusion for the Project. Contractor will supply SLCC with satisfactory evidence of the insurance required by this Contract prior to the Commencement Date. Should Contractor (or any subcontractor or Design Professional directly or indirectly employed by Contractor) fail to obtain and maintain the insurance required by this paragraph SLCC may, but shall not be obligated to, purchase such insurance, the cost of which shall be charged to Contractor and deducted from the Contract Price.

Contractor shall bear full responsibility for and shall pay on demand any and all damages suffered by SLCC and/or other parties indemnified pursuant to Article 12 which result from Contractor’s failure to comply with the insurance requirements of this Contract. Contractor shall bear the risk of damage and/or loss to Contractor’s materials, equipment and other property and, until acceptance of the Work by SLCC in writing, the Work, and no protection from damage and/or loss of the Work (including, without limitation, so called “builders risk”, “course of construction”, “inland marine” and/or similar property insurance) will be provided by SLCC.

Builder’s Risk Insurance. Contractor shall bear the risk of damage and/or loss to Contractor’s materials, equipment and other property and, until acceptance of the Work by SLCC in writing, the Work, and no protection from damage and/or loss of the Work (including, without limitation, so called “builders risk”, “course of construction”, “inland marine” and/or similar property insurance) will be provided by SLCC.

ARTICLE 14. SUCCESSORS AND ASSIGNMENT OF CONTRACT. SLCC and Contractor, respectively bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement, and to partners, successors, assigns and legal representatives of such other party with respect to all covenants, provisions, rights and responsibilities of this Contractor’s Agreement. The Contractor shall not assign this Contractor’s Agreement without the prior written consent of SLCC, nor shall the Contractor assign any moneys due or to become due as well as any rights under this Contractor’s Agreement, without prior written consent of SLCC.

ARTICLE 15. RELATIONSHIP OF THE PARTIES. The Contractor accepts the relationship of trust and confidence established by this Contractor's Agreement and covenants with SLCC to cooperate with SLCC and A/E and use the Contractor's best skill, efforts and judgment in furthering the interest of SLCC; to furnish efficient business administration and supervision; to make best efforts to furnish at all times an adequate supply of workers and materials; and to perform the Work in the best and most expeditious and economic manner consistent with the interests of SLCC.

ARTICLE 16. AUTHORITY TO EXECUTE AND PERFORM AGREEMENT. Contractor and SLCC each represent that the execution of this Contractor's Agreement and the performance thereunder is within their respective duly authorized powers.

ARTICLE 17. ATTORNEY FEES AND COSTS. Except as otherwise provided in the dispute resolution provisions of the General Conditions, the prevailing party shall be entitled to reasonable attorney fees and costs incurred in any action in the District Court and/or appellate body to enforce this Contractor's Agreement or recover damages or any other action as a result of a breach thereof.

ARTICLE 18. ANTI-BOYCOTT In accordance with Utah Code 63G-27-102, Contractor certifies that it is not currently engaged in an “economic boycott” nor a “boycott of the State of Israel” as those terms are defined in that Code section. Contractor also agrees not to engage in either boycott for the duration of this contract. If Contractor does engage in such a boycott, it shall immediately provide written notification to the public entity party to this contract.

IN WITNESS WHEREOF, the parties hereto have executed this Contractor's Agreement on the day and year stated hereinabove.

CONTRACTOR:

Signature:

Title:

Date:

SALT LAKE COMMUNITY COLLEGE:

Signature:

Title:

Date:

APPROVED AS TO FORM:

ATTORNEY GENERAL

July 10, 2017 By: MICHAEL J. KELLEY Asst Attorney General image1.png