8 - 2025 Slurry Seal, Chip Seal - Short Form Agreement.docx

2025-08-29 AGREEMENT For

2025 GYPSUM STREET RENOVATIONS-CHIPSEAL & SLURRY SEAL

This Agreement is made as of this ____ day of __________, 2025, between the Town of Gypsum, Colorado (Gypsum), a home rule municipal corporation organized pursuant to Article XX of the Colorado Constitution and Gypsum’s Home Rule Charter effective October 21, 1982, with a mailing address of PO Box 130, Gypsum, Colorado 81637-0130, and Awarded Bidder, a Colorado company, with a mailing address of Awarded Bidder’s Address (“Contractor” and together with Gypsum, the “Parties” or either of the Parties, a “Party”).

In consideration of the mutual covenants, agreements, conditions and undertakings hereinafter set forth, Gypsum and Contractor agree as follows:

Scope of Work. Contractor shall perform all work in accordance with the Contract Documents as identified in Section 18 for 2025 Gypsum Street Renovations – Chipseal & Slurry seal including furnishing all construction plans and methods, construction management, labor, equipment and materials (generally referred to as the “Project”), and shall complete the Project, including any additional work authorized pursuant to Section 17, in accordance with the terms of this Agreement and the Contract Documents.

Contract Price. Gypsum shall pay Contractor for the performance of work and completion of the Project the total price of X Million, X Hundred XX Thousand, X Hundred XX and XX Cents ($x,xxx,xxx.xx) (the “Contract Price”), subject to certain adjustments as herein provided, in accordance with the bid proposal submitted by Contractor. The Contract Price may be adjusted (i) for changes in the Contract Documents or for extensions of time to complete performance, if approved by Gypsum and Contractor as specified in Section 17; (ii) for any additional work authorized pursuant to Section 17; and (iii) for certain changes in quantities, if bid on a unit-price basis in the bid proposal. All unit quantities requiring an adjustment of the Contract Price shall be verified by Project Manager (as defined in Section 16).

Progress Payments. Gypsum will make progress payments no less than monthly for properly submitted requests on account of the Contract Price in accordance with partial payment applications prepared by Contractor for work performed during the last monthly period and approved by Project Manager and Gypsum. Contractor shall submit partial payment applications for the last completed work period to Project Manager by noon on Tuesday the week before the second and/or fourth Tuesday of each month when requests are made. Gypsum shall authorize progress payments for the amount approved by Project Manager and Gypsum under such partial payment applications for approval and payment by the Town Council on the second and fourth Tuesday of each month. Progress payments shall not constitute final acceptance of the work. Gypsum may withhold progress payments if: (i) Contractor’s performance is inadequate or defective and not remedied in accordance with Project Manager’s directions; (ii) Contractor does not make prompt and proper disbursements to subcontractors on receipt of progress payments from Gypsum; (iii) Contractor does not promptly pay for materials, labor or equipment furnished on the Project; (iv) claims or liens are filed on the Project; or (v) in Project Manager’s opinion, Contractor’s performance is not progressing satisfactorily or completion of the Project is jeopardized or delayed.

Retainage. An amount equal to five percent (5%) of the Contract Price shall be retained by Gypsum at the rate of 10% on the first half of the work performed. Gypsum shall pay the remaining amount of each progress payment to Contractor without retaining additional funds if, in the opinion of Project Manager and Gypsum, satisfactory progress is being made on the Project. Such retainage of the Contract Price shall be held by Gypsum until the Project is completed and finally accepted by Gypsum in accordance with the provisions hereof. Gypsum shall pay the full amount of such retainage to Contractor within sixty (60) days of final completion and acceptance, except to the extent of any claims filed pursuant to Section 38-26-107, C.R.S. Any release of retainage to Contractor or a subcontractor prior to final payment shall, in addition to any other requirements of the Contract Documents, require written approval from the surety furnishing bonds pursuant to Section 13.

Final Payment.

Upon completion of the Project and Contractor’s submittal of notice thereof to Project Manager and Gypsum, Project Manager shall inspect the Project and reject any portion of performance not in conformity with the Contract Documents. Defective materials, equipment or work shall be remedied immediately by Contractor before final payment. Gypsum shall make final payment to Contractor within thirty (30) days after (i) final acceptance of performance by Gypsum as specified in Section 6 and (ii) receipt of Project Manager’s confirmation to Gypsum that the Project has been completed satisfactorily. Final payment shall not, however, be due until Contractor has delivered to Gypsum a complete release of all claims or liens against the Project and has produced satisfactory receipts, waivers or lien releases indicating final and total payment to all subcontractors and persons who have furnished materials, labor and equipment on which a lien or claim might potentially be filed in form acceptable to Gypsum. Gypsum shall, no later than ten (10) days before final payment is made, publish a notice of final payment at least twice in a legal newspaper of general circulation in any county where the work was contracted for or performed pursuant to Section 38-26-107, C.R.S.

By making final payment, Gypsum waives all claims against Contractor, except those expressly declared to Contractor in writing or those arising out of: (i) defective performance appearing after final acceptance; (ii) performance in patent noncompliance with Contract Documents, unless expressly waived by Gypsum; (iii) outstanding claims of any nature, including but not limited to claims for property damage or personal injury arising during the construction period or liens or claims against the Project; or (iv) Contractor’s failure to execute any warranty, guarantee or bond or to provide insurance or other indemnification required by the Contract Documents. By accepting final payment, Contractor waives all claims against Gypsum, except those expressly declared to Gypsum in writing received by Gypsum prior to final payment.

Final Acceptance.

Final acceptance of the Project shall follow inspection and approval of Contractor’s performance by Project Manager, along with inspection by Gypsum Public Works, appropriate manufacturers’ representatives and governmental officials pursuant to local, State and federal requirements as necessary. Gypsum shall have the right to determine the acceptability of Contractor’s performance and conformance with the Contract Documents, which determination shall be conclusive and binding upon Contractor. Final acceptance by Gypsum is subject to the provisions of Section 5 and in no manner affects or releases any warranty or guarantee with Contractor or manufacturers or suppliers of Project equipment or materials.

When presented for final acceptance, the Project shall be delivered to Gypsum in complete compliance with the Contract Documents free from any lien, claim or encumbrance, whether in existence or subsequently established by law, statute, ordinance or otherwise. Notwithstanding the foregoing, nothing in the Contract Documents shall give Contractor or any subcontractor, laborer, supplier, manufacturer or other person or entity, either expressly or by implication, any right to assert a lien, claim or encumbrance against the Project.

Commencement and Completion of Performance; Liquidated Damages.

Contractor shall commence performance as soon as the weather conditions allow for excavation to begin. The project completion deadlines are as stated, regardless of start time. The Notice to Proceed is expected to be given within two business days of receipt of the Contractor’s proper paperwork submittal. Unless an extension of time is granted by Gypsum as hereinafter set forth, Contractor shall substantially complete the Project no later than October 24, 2025 and shall 100% complete the Project on or before October 31, 2025. For purposes of this Agreement, (i) “Substantial Completion” shall be the time at which the Project (or a specified part thereof) has progressed to the point where, in the opinion of Project Manager, the Project (or a specified part thereof) is sufficiently complete in accordance with the Contract Documents, so that the Project (or a specified part thereof) can be utilized by Gypsum for the purposes for which it is intended; and (ii) “100% Completion” shall be the time at which Gypsum accepts the Project upon confirmation from Project Manager and Contractor that the Project is totally complete in accordance with Contract Documents.

If Contractor fails to perform the Project within the above-referenced performance deadlines or any extension thereof (the “Performance Deadlines”), Contractor shall pay to Gypsum as liquidated damages (and not as a penalty) for ordinary and general damages and inconvenience (exclusive of any special damages such as, by way of example and not limitation, any liabilities to third parties) the sum of:

These liquidated damages are based upon Gypsum’s evaluation of its likely losses in the event the Performance Deadlines are not met. The liquidated damages herein established are agreed to by Contractor after full discussion of the implication of this Section. The failure to perform the work and complete the Project by the Performance Deadlines will cause significant damage to Gypsum. Gypsum and Contractor agree that such actual damages caused by Contractor’s failure to meet the Performance Deadlines would reasonably likely include, without limitation, the costs for additional construction management and other Gypsum representative/employee time; the costs for third-party consultants’ time; inefficiency and inconvenience damages to Gypsum’s business operations; damages to Gypsum’s reputation with third-parties (including governmental entities with regulatory jurisdiction over Gypsum), as well as other potential actual damages to Gypsum reasonably associated with the subject matter of this Agreement. Contractor acknowledges that the liquidated damages established herein are a reasonable pre-estimate of the detriment Gypsum will suffer in the event Contractor fails to perform the work and complete the Project by the Performance Deadlines and, after a full discussion of the implications of this section, further acknowledges that it would be impractical and extremely difficult to estimate precisely the damages that Gypsum might suffer by reason of Contractor’s failure to perform the work and complete the Project by the Performance Deadlines. The liquidated damages established herein are intended to be and are cumulative and shall be in addition to any other remedy enforceable at law under this Agreement. Liquidated damages do not include any sums of money to reimburse Gypsum for extra costs which Gypsum may become obligated to pay on other contracts, which are delayed or extended because of Contractor’s failure to perform the work and complete the Project by the Performance Deadlines. Should Gypsum incur such other additional costs because of delays or extensions to other contracts resulting from Contractor’s unexcused failure or delay in performance, Gypsum will assess any such extra costs against Contractor in addition to the liquidated damages provided for herein.

No extension of time to complete performance shall be granted under normal circumstances. Extensions of time to complete performance may be authorized by Gypsum in its sole discretion for any actual period of delay on an occurrence basis for: (i) adverse weather or climatic conditions not reasonably anticipated; (ii) major labor disputes; (iii) acts of God; (iv) detrimental acts of Gypsum; (v) acts of another contractor in the performance of related work under a separate contract with Gypsum; (vi) delays resulting from the intervention of governmental agencies in the performance of work on the Project, if not caused by Contractor or its subcontractors; or (vii) other extraordinary circumstances beyond Contractor’s reasonable control. Foreseeable weather delays and delays or failures in delivery of equipment or materials shall not constitute cause for an extension of time to complete performance or for an adjustment to the Contract Price. Any request for an extension of time to complete performance shall be submitted in writing to Project Manager for Gypsum’s approval within ten (10) days after such occurrence and shall be accompanied and supported by a schedule analysis based on the critical path method, which shows how and where the delay occurred on the then-critical path and its effect on any milestone date or the date of Substantial Completion. The decision of Gypsum shall be conclusive and binding upon Contractor.

Default. Gypsum may give written notice of grounds for default to Contractor at any time if: (i) Contractor fails to perform in an adequate or specified manner or proceeds in willful violation of the Contract Documents or terms of this Agreement, as determined by Project Manager or Gypsum; (ii) Project Manager advises Gypsum that performance of work on the Project is being delayed unnecessarily or that Contractor is executing its responsibilities in bad faith or contrary to the intent of this Agreement; (iii) performance is not fully completed within the period of time specified for completion under Section 7; (iv) work to be performed by Contractor is assigned without Gypsum’s consent; (v) Contractor is insolvent or files for bankruptcy; (vi) Contractor makes a general assignment of assets for the benefit of creditors; (vii) a receiver is appointed for Contractor; or (viii) other serious and reasonable cause exists which jeopardizes completion of the Project. If Contractor does not remedy or otherwise correct the grounds for default within such period of time as specified by Gypsum, Gypsum may terminate this Agreement and direct Contractor to discontinue any further work on the Project, and Contractor shall immediately stop all work on the Project and forfeit all rights under this Agreement. Gypsum, in its discretion, may complete the Project, or may request the surety of Contractor to complete the Project, or may contract with others to complete the Project at the expense of Contractor and its surety. Any increase in costs over the Contract Price and any special damages incurred by Gypsum as a consequence of such default, including reasonable attorneys’ fees, shall be paid and satisfied in full by Contractor and its surety.

Termination. At any time Gypsum may, without cause and without prejudice to any other right or remedy hereunder, elect to terminate this Agreement. In such event, Gypsum shall give written notice of Project termination to Contractor at least five (5) days in advance of the Project termination date. Such notice may include specific instructions as to work to be completed and other winding-up matters. In the absence of any contrary instructions, Contractor shall place no further orders or subcontracts, shall terminate all orders and subcontracts to the extent they relate to terminated work, and shall stop work on the date and in accordance with directions specified in the notice. Contractor shall cooperate with Gypsum to transfer all of Contractor’s rights and interests in any orders, subcontracts or work as directed by Gypsum. Gypsum shall pay Contractor for the performance of all work through the Project termination date and for such additional amounts as, in the opinion of Project Manager, are reasonable to compensate Contractor for the termination of this Agreement. Final payment to Contractor shall be made in accordance with Section 5.

Taxes, Licenses, Permits, Regulations and Illegal Aliens.

In all operations connected with the Project, Contractor shall pay all fees, charges and taxes imposed by law, except for sales and use taxes from which Gypsum or the Project are exempt, and shall obtain all licenses and permits necessary for completion of the Project, including payment of all fees, unless otherwise specified by the Contract Documents or Project Manager. Contractor shall comply with all laws, ordinances, codes, rules and regulations of all governmental authorities, whether local, State or federal, relating to the performance of work on the Project and particularly for compliance with those laws concerning the environment, stormwater management permits, workmen’s compensation, safety and health, labor, immigration and equal employment opportunity. Gypsum shall, upon request, furnish Contractor with a copy of its certificate of sales and use tax exemption. Gypsum shall not reimburse Contractor for any sales or use taxes paid to the State or any county or municipality from which Gypsum or the Project are exempt.

Contractor certifies that Contractor shall comply with the provisions of Section 8-17.5-101 et seq., C.R.S. Contractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement or enter into an agreement with a subcontractor that knowingly employs or contracts with an illegal alien. Contractor represents, warrants and agrees that it (i) has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under this Agreement through participation in either the E-Verify Program or the Department Program described in Section 8-17.5-101, C.R.S. Contractor shall not use either the E-Verify Program or the Department Program procedures to undertake pre-employment screening of job applicants while the public contract for services is being performed. If Contractor obtains actual knowledge that a subcontractor performing work under this Contract knowingly employs or contracts with an illegal alien, Contractor shall: (i) notify the subcontractor and Gypsum within three (3) days that Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (ii) terminate the subcontract with the subcontractor if within three (3) days of receiving such notice, the subcontractor does not stop employing or contracting with the illegal alien, unless the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. Contractor shall comply with all reasonable requests made in the course of an investigation by the Colorado Department of Labor and Employment. If Contractor fails to comply with any requirement of Section 8-17.5-102(2), C.R.S., Gypsum may terminate this Agreement for breach, and Contractor shall be liable for actual and consequential damages to Gypsum. If Contractor participates in the Department Program, Contractor shall provide the affirmation required under Section 8-17.5-102(5)(c)(II), C.R.S., to District.

Contractor, if operating as a sole proprietor, hereby swears or affirms under penalty of perjury that Contractor (i) is a citizen of the United States or legal permanent resident or otherwise lawfully present in the United States pursuant to federal law, (ii) shall comply with the provisions of Section 24-76.5-101 et seq., C.R.S., and (iii) shall produce one of the forms of identification required by Section 24-76.5-103, C.R.S., prior to the performance of any of its other obligations hereunder.

Indemnification. Subject to Section 13-21-111.5(6), C.R.S., Contractor shall indemnify, defend and hold Gypsum, and its officers, directors, employees, agents, engineers and attorneys, harmless from and against all costs, claims, damages, judgments, losses and expenses of every nature, including reasonable attorneys’ fees, arising at any time from any act or omission of Contractor, its employees, subcontractors and their employees, and all other persons directly or indirectly involved in or performing work for Contractor on the Project (other than Gypsum and any other third party while under the control or supervision of Gypsum).

Insurance. During the term of this Agreement, Contractor shall: (i) maintain all insurance required by the State Workmen’s Compensation Act or any other employee benefit law; (ii) provide broad form general liability and property damage insurance in the minimum amount of $1,000,000 for bodily injury, death or damage to property of any person, and $2,000,000 for bodily injury, death or damage to property of more than one person, or such other greater amounts as may be specified in the Contract Documents for injuries, death or damages which may arise out of or result from Contractor’s acts or omissions in performing the Project work, designating Gypsum and Project Manager as “additional insureds” thereunder; and (iii) unless otherwise waived by Gypsum in writing, furnish builders risk insurance for protection against damage, explosion, fire, vandalism, theft and other dangers ordinarily included under such coverage, including loss of use resulting therefrom, to the full insurable value of all property, structures, equipment and material of Gypsum within Contractor’s control, designating Gypsum as “loss payee” thereunder. Contractor shall file certificates of insurance coverage satisfactory to Gypsum prior to commencement of performance. Such certificates shall provide that coverages afforded thereunder shall not be cancelled until at least thirty (30) days’ prior written notice has been given to Gypsum.

Performance, Payment and Warranty Bond. Prior to commencement of performance, Contractor shall provide to Gypsum a general performance, payment and warranty bond executed by Contractor and an acceptable corporate surety, or collateral approved by Gypsum, in the full amount of the Contract Price, including provisions for any adjustment of the Contract Price in accordance with the terms of this Agreement. Such bond shall expressly guarantee: (i) faithful performance of this Agreement and completion of the Project in complete compliance with the Contract Documents; (ii) repair and replacement, if required, or payment of the costs of all defective equipment, materials and work performed on the Project or as provided under any warranty, guarantee or other Contract Document for the full warranty and guarantee period; and (iii) payment to all persons performing labor and furnishing materials, supplies, tools and equipment in connection with the Project. Contractor shall obtain such bond on Gypsum’s behalf separate and apart from any similar bond or surety or warranty agreement entered into independently between Gypsum and any manufacturer or supplier. Gypsum may, in its discretion, require that the bond guaranteeing payment to all persons performing labor and furnishing materials, supplies, tools and equipment in connection with the Project be separate from the bond guaranteeing performance and warranting the work. Notwithstanding anything contained within the bonds to the contrary, such bonds are required, in part, by and shall comply with the minimum requirements of Section 38-26-106, C.R.S.

Warranties and Guarantees. Contractor hereby represents, warrants and guarantees to Gypsum all workmanship, equipment and materials on or made a part of the Project and its structures for a period of two (2) years following Final Completion of the Project. Such warranty and guarantee shall be construed to include, but is not limited to, representations that all workmanship, equipment and materials are of good quality, free from any defects or irregularities, and in strict conformity with the Contract Documents. If any defect in workmanship, equipment or materials arises, Contractor shall remedy or otherwise correct such defect without cost to Gypsum within such reasonable period of time as specified by Gypsum in writing. If Contractor fails to repair such defect within such period of time as is specified by Gypsum, Gypsum may repair such defect or contract for such repairs at the expense of Contractor and its surety. The performance bond specified in Section 13 shall remain in full force and effect during the period of this warranty and guarantee, including any period necessary to remedy or otherwise correct any defects. Contractor shall provide such warranty and guarantee on Gypsum’s behalf separate and apart from other warranties, guarantees and surety agreements entered into independently between Gypsum and any manufacturer or supplier.

Subcontractors, Suppliers and Others. Contractor shall, prior to commencement of performance, submit a list of all major subcontractors, suppliers, and other individuals or entities to be engaged to work on the Project for Gypsum’s reasonable acceptance (either in writing or by failing to make written objection thereto within ten (10) days after such submission). Contractor shall not substitute any subcontractor, supplier, or other individual or entity previously accepted by Gypsum without Gypsum’s prior written consent, which shall not be unreasonably withheld. Gypsum’s acceptance of any such subcontractor, supplier, or other individual or entity so identified may be withheld or revoked on the basis of reasonable objection after due investigation. In such event, Contractor shall submit an acceptable replacement for the rejected subcontractor, supplier, or other individual or entity, and the Contract Price may be adjusted by any reasonable difference in the cost occasioned by such replacement, and an appropriate Change Order will be issued. No acceptance by Gypsum of any such subcontractor, supplier, or other individual or entity, whether initially or as a replacement, shall constitute a waiver of any right of Gypsum or Project Manager to reject defective work. All contracts between Contractor and subcontractors shall conform explicitly to all applicable provisions of this Agreement and the Contract Documents. Contractor shall be responsible and held liable for any bonding, insurance, warranties, indemnities, progress payments and completion of performance of or to such subcontractors, suppliers, or other individuals or entities. Upon receipt of progress and final payments from Gypsum, Contractor shall disburse the same immediately to subcontractors, suppliers, and other individuals and entities without any requirement of Gypsum to supervise the same. No contractual relationship shall exist between Gypsum and any subcontractor, supplier, or other individual or entity because of the subcontracting of any part of the Project work.

Project Manager. Official authority for the administration of all performance under this Agreement is hereby delegated to Gypsum’s engineer or project manager, who is Robert Salazar, Public Infrastructure Manager, and is referred to herein as the “Project Manager,” unless otherwise provided in the Contract Documents. Throughout the construction period, Project Manager, or such other duly authorized representative of Gypsum, may inspect the Project and shall consult with Contractor in regard to any inquiries, directions or interpretations of the Contract Documents.

Appropriations; Change Orders. This Agreement is subject to Section 24-91-103.6, C.R.S., and in accordance therewith:

Gypsum represents that it has appropriated money equal to or in excess of the Contract Price for the work.

Gypsum shall not issue any Change Order or other directive (other than a clarification) requiring additional compensable work to be performed that will cause the aggregate amount payable under this Agreement to exceed the amount appropriated for the original Contract Price and any subsequent appropriations, unless:

Contractor is given written assurance by Gypsum that lawful appropriations to cover the costs of the additional work have been made and are available prior to performance of the additional work; or Such additional work is covered by the following remedy-granting provision: Contractor may request, in writing, a letter from Gypsum explaining the expected sources of funding for the additional work. In the event Gypsum does not provide such written assurance reasonably satisfactory to Contractor within five (5) days of Contractor’s request, Contractor may stop work until such time as Gypsum provides satisfactory assurances. Contractor’s acceptance of a Change Order in accordance with any assurances provided under this paragraph shall not limit or restrict Contractor from making a claim under the Contract Documents for an adjustment in the Contract Price or the Performance Deadlines or otherwise for expenses or damages directly attributable to Contractor’s stoppage of the work as permitted hereunder.

For any Change Order or other directive (other than a clarification) that requires additional compensable work to be performed, Gypsum shall reimburse Contractor for Contractor’s costs on the periodic basis set forth in the Contract Documents for all additional directed work performed until the Change Order is finalized. In no instance shall the periodic reimbursement be required before Contractor has submitted an estimate of cost to Gypsum for the additional compensable work to be performed.

Contract Documents. The Contract Documents comprise the entire agreement and contract between Gypsum and Contractor and consist of (i) this Agreement and any exhibit or addendum hereto; (ii) any documents furnished to Contractor by or at the request of Gypsum in connection with the Project, including but not limited to notice to bidders, instructions to bidders, bid bond form, bid proposal, performance, payment and maintenance bonds, notice of award, [EJCDC Standard General Conditions of the Construction Contract, Form C-700, 2007 Edition, notice to proceed, specifications, plans, drawings and special conditions, and any addendum to such documents; and (iii) any modifications, change orders or other such revisions approved by the Parties in writing or duly authorized after the execution of this Agreement.

Report of Differing Conditions. If Contractor believes that any technical data on which Contractor is entitled to rely is inaccurate, or any physical condition differs materially from that indicated, reflected or referred to in the Contract Documents, Contractor shall promptly, after becoming aware of such condition and before performing any further work in connection with the Project, notify Project Manager and Gypsum in writing about such inadequacy or difference.

Amendment. This Agreement may be amended, from time to time, by agreement between the Parties. No amendment, modification or alteration of this Agreement shall be binding upon the Parties unless the same is in writing and approved by the duly authorized representatives of each Party. No document executed subsequent to this Agreement shall be interpreted to amend, modify or alter the terms of this Agreement, unless express reference to amending the terms of this Agreement is made in such document.

Colorado Labor. If the Project is financed in whole or in part by funds of the State or any county, school district or municipality of the State, Colorado labor shall be employed to perform at least eighty percent (80%) of the work, unless such requirement is waived by the Town of Gypsum in accordance with Section 8-17-101(1), C.R.S. “Colorado labor” means any person who is a resident of the State at the time of the Project. A “resident of the State” is a person who can provide a valid Colorado driver’s license, a valid State-issued photo identification, or documentation that he or she has resided in Colorado for the last thirty (30) days.

Severability. If any term, section or other provision of this Agreement shall, for any reason, be held to be invalid or unenforceable, the invalidity or unenforceability of such term, section or other provision shall not affect any of the remaining provisions of this Agreement.

Waiver. No waiver by either Party of any right, term or condition of this Agreement shall be deemed or construed as a waiver of any other right, term or condition, nor shall a waiver of any breach hereof be deemed to constitute a waiver of any subsequent breach, whether of the same or of a different provision of this Agreement.

Remedies. None of the remedies provided to either Party under this Agreement shall be required to be exhausted or exercised as a prerequisite to resort to any further relief to which such Party may then be entitled. Every obligation assumed by, or imposed upon, either Party shall be enforceable by any appropriate action, petition or proceeding at law or in equity, including specific performance. This Agreement shall be construed in accordance with the laws of the State of Colorado and particularly those relating to governmental contracts.

Counterparts; Electronic Signatures; Electronic Records. This Agreement may be executed in multiple counterparts, each of which shall constitute an original, but all of which shall constitute one and the same document. The Parties consent to the use of electronic signatures and agree that the transaction may be conducted electronically pursuant to the Uniform Electronic Transactions Act, § 24-71.3-101 et seq., C.R.S. This Agreement and any other documents requiring a signature may be signed electronically by either Party. The Parties agree not to deny the legal effect or enforceability of this Agreement, solely because it is in electronic form or because an electronic record was used in its formation. The Parties agree not to object to the admissibility of this Agreement in the form of an electronic record, a paper copy of an electronic document, or a paper copy of a document bearing an electronic signature on the grounds that it is an electronic record or an electronic signature or that it is not in its original form or is not an original.

Entirety. This Agreement and all other Contract Documents constitute the entire agreement between the Parties concerning the subject matter herein, and all prior negotiations, representations, contracts, understandings or agreements pertaining to such matters are merged into and superseded by this Agreement and the other Contract Documents.

Conflicting Provisions; Grant Requirements Control; Interpretation. In the event any provision of this Agreement conflicts with any provision of any other Contract Document, then the provisions of this Agreement shall govern and control such conflicting provisions. If the Project is financed in whole or in part by a federal or State grant, any provision of the Contract Documents that is in conflict with the terms of such grant shall be inapplicable. Subject to the foregoing provisions of this Section, to the extent the Parties need guidance on a matter that is not addressed by the Contract Documents, such matter shall be governed by the pertinent provisions, if any, contained in the General Conditions.

Assignment. Contractor shall not, at any time, assign any interest in this Agreement to any person or entity without the prior written consent of Gypsum. The terms of this Agreement shall inure to and be binding upon any successors and assigns of the Parties.

Time. Unless otherwise expressly provided, any reference herein to days shall mean calendar days. All times stated in this Agreement are of the essence.

Notice. Any notice required hereunder shall be in writing delivered to the applicable Party at the address set forth at the beginning of this Agreement or as changed pursuant to the provisions of this Section.

Section Headings. The section headings in this Agreement and any other Contract Documents are inserted for convenience and are not intended to indicate completely or accurately the contents of the sections which they introduce, and shall have no bearing on the construction of the sections which they introduce.

No Third Party Beneficiaries. The Parties to this Agreement do not intend to extend any benefits to any person not a Party to this Agreement. No person or entity, other than the Parties to this Agreement, shall have any rights, legal or equitable, to enforce or rely on any provision of this Agreement.

Duly Authorized Signatories. By execution of this Agreement, the undersigned each individually represent that he or she is duly authorized to execute and deliver this Agreement and that the subject Party shall be bound by the signatory’s execution of this Agreement.

IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year first above written.

TOWN OF GYPSUM

By:

Mayor

ATTEST:

By:

Town Clerk

The foregoing Agreement was acknowledged before me this ____ day of ____________, 2025, by Steve Carver as Mayor and Polly Keene as Town Clerk of the Town of Gypsum.

My commission expires:

Notary Public

CONTRACTOR

By:

Name:

Title:

The foregoing Agreement was acknowledged before me this ____ day of _________, 2025, by _______________ as __________________ of _____________________, Contractor.

Witness my hand and official seal.

My commission expires:

Notary Public