Attachment E -Sample Construction Contract.docx

CONTRACT FOR CONSTRUCTION

THIS CONSTRUCTION CONTRACT (the “Contract”) is made and entered into on ______________ (the “Effective Date”) by and between the Town of Basalt, Colorado, a Colorado home-rule municipal corporation (“Owner”), and _________________________ (“Contractor”). For and in consideration of the promises, agreements, and other good and valuable consideration exchanged herein, the receipt and sufficiency of which is acknowledged, the Parties, by signing below, agree as stated herein.

The Project. The “Project” means the full and complete construction of the __________ at the following real property in the Town of Basalt _________________ (the “Property”) in strict conformance with the Plans and Specifications attached and incorporated hereto as Exhibit “A” (the “Plans and Specs”) by _Colorado Outdoor Environments_____________ (the “Irrigation Designer”) dated _____________. Contractor’s Bid for the Project dated __________ is attached and incorporated hereto as Exhibit “B” (the “Bid”). This Contract and the Plans and Specs and Bid appended hereto are intended to supplement one another; however, in case of conflict, this Contract shall control, then the Shop Drawings, then the Plans and Specs, and finally the Bid. The “Commencement Date” for the Project is ____________________________, or as otherwise mutually agreed in writing by the Parties. The “Completion Date” for the Project is __________________, or as otherwise mutually agreed in writing by the Parties. Contractor agrees to commence the Project on the Commencement Date and to achieve Final Completion (defined below) of the Project by the Completion Date, consistent with the Project Schedule (defined below) and subject to extensions pursuant to duly executed Change Orders (defined below). Owner, as the Owner of the Property, desires Contractor to perform the Project at the Property. Contractor agrees to perform the Project pursuant to this Contract.

Pre-Construction Conference. Prior to the Commencement Date, a pre-construction conference shall be held with the Town Engineer (“Owner Representative”) and Contractor present. Time and place of the conference will be determined by the Owner. The purpose of the conference will be to discuss the following items, without limitation, relating to the Project:

a. Project Schedule;

b. Construction staking, as applicable;

c. Plans and Specifications;

d. Shop Drawings;

e. Safety;

f. Procedures for Progress Payments and Final Payment;

g. Licensure, Permits, and Insurance;

h. Coordination with relevant utility companies;

i. Identifying staging areas and storage of materials;

j. Construction Management Plan; and

k. Contractor's compliance with this Contract.

Project Schedule. The “Project Schedule” means the schedule and sequence for construction and performance of the Project from the Commencement Date to the Completion Date. Contractor agrees and understands that time is of the essence. Contractor has satisfied itself that the Completion Date is sufficient for Contractor to reach Final Completion (defined below). The Project Schedule shall be provided by Contractor to Owner in the form of a Gantt Chart or similar and include a critical path schedule. Contractor must promptly notify Owner of any anticipated deviations or delays concerning the Project Schedule and critical path schedule. The Project Schedule and/or Completion Date shall not be modified without advance written consent by the Owner (which will not be unreasonably withheld), and any changes to the Project Schedule and/or Completion Date must be in a written Change Order to be valid.

Project Costs, Max Price. All costs for the Project (including without limitation, the costs of the management, administration, materials, labor, work, subcontractors, transportation, facilities, licenses, permits, insurance, premiums, deductibles, any fees, etc., and Contractor’s profit, etc.) will be billed on a [“ “Unit Bid”]basis; provided, however, that the Project and this Contract are subject to the maximum price not to exceed ____________________ (the “Max Price”). In accordance with C.R.S. § 24-91-103.6(2)(a), the amount of money appropriated by Owner for all costs of the Project is equal to or in excess of the Max Price. Contractor agrees and guarantees the actual final total costs charged by Contractor to Owner for full construction and completion of the Project will not exceed the Max Price (subject to reductions/additions pursuant to duly executed Change Orders in accordance with C.R.S. § 24-91-103.6(2)(b)), and Contractor shall bear the cost of and be responsible for all amounts incurred in complete performance of the Project that exceed the Max Price. All discounts obtained by Contractor in connection with the Project shall accrue to Owner and be applied as a credit. All trade discounts, rebates, and refunds, and all returns from sale of surplus materials and equipment, shall accrue to Owner and be applied as a credit.

Payments to Contractor. Owner will pay Contractor for its strict and proper performance of the Project by means of incremental Progress Payments (defined below) and a Final Payment (defined below). All Progress Payments to Contractor are subject to 5% retainage (the “Retainage”), and all Retainage shall be withheld until Final Payment is made. Each invoice and application for a Progress Payment and Final Payment shall be accompanied by all back up and supporting documentation and data substantiating the Contractor’s right to payment as the Owner may reasonably require, including without limitation, copies of time cards for Contractor’s employees engaged in the Project, subcontractor and supplier invoices, statements, any amounts required by suppliers for deposits for materials, and an itemization of all other costs, together with duly executed Waivers and Releases of Mechanics’ Liens (using the Progress Payment Lien Form and Final Payment Lien Form in the same form as attached hereto) from Contractor and from each subcontractor and vendor with an invoice incorporated into the payment application. The Owner shall determine whether the respective work is completed to the Owner’s satisfaction and shall make payment to the Contractor of all approved and undisputed amounts, less the Retainage. If Owner objects to any work for which the application for payment has been made (whether a Progress Payment invoice or the Final Payment invoice), Owner may, upon notice to Contractor, withhold from the payment up to one hundred percent of the amount which is necessary to correct the objectionable work, and Owner shall not be deemed in default of this Contract by reason of withholding payment under this Contract in good faith, and as such, Contractor must continue performance of the Project and may not stop work. Payments may be withheld on account of such things, including without limitation, (1) defective work not remedied, (2) claims filed by third parties, (3) failure of Contractor to make payments properly to subcontractors or others for labor performed, or materials, or equipment supplied to the Project in accordance with C.R.S. § 24-91-103, (4) reasonable evidence that Contractor cannot competently complete the Project, (5) damage to the Property caused by Contractor, (6) reasonable evidence that the Project will not be completed within the Completion Date, or (7) Contractor’s failure to strictly and satisfactorily perform the Project in accordance with this Contract and the Plans and Specs, in Owner’s reasonable determination. “Progress Payments” means the payments by Owner to Contractor during the Project Term according to this Contract. Contractor will invoice Owner for the performance of the Project on a monthly basis, with invoices to be submitted to Owner within the first 5-calendar days of the month for the work performed during the preceding month. Applications for payment may only request payment for work actually completed and/or costs actually incurred during the preceding month. Subject to the terms and conditions of this Contract, Owner will pay each Progress Payment to Contractor within 30-calendar days following receipt of such invoice. “Final Payment” means the final payment by Owner to Contractor at the time of Final Completion (defined below). Contractor shall submit the Final Payment invoice to Owner upon reaching Final Completion, together with all supporting documentation and other deliverables (including without limitation, manufacturer warranties; service/maintenance manuals; operational instructions; lien waivers; assignment of warranties; etc.). Final Payment shall be in accordance with C.R.S. § 38-26-107 and Final will include the remaining amounts due and payable by Owner to Contractor pursuant to this Contract, including the Retainage withheld from the Progress Payments. Unless Contractor provides written identification of unsettled claims known to Contractor at the time of making application for Final Payment, acceptance of Final Payment constitutes a waiver of such claims. Except to the extent required by C.R.S. § 38-26-107, acceptance of payment from Owner by Contractor, a subcontractor, and/or material supplier shall constitute a full and absolute waiver of claims and Liens by that recipient against Owner and/or the Property. Owner’s acceptance of the work, use or occupancy of the Project, and/or payment to Contractor does not constitute a waiver of any rights or claims, and Owner reserves all rights and claims. Prior to Final Payment, Owner shall publish a “Notice of Final Payment” in accordance with C.R.S. § 38-26-107 to guarantee that all parties to the Contractor, including without limitation, subcontractors and suppliers, have been paid. The Owner may require that the Contractor provide additional information to substantiate payment all such parties to the Contractor.

Construction of the Project. Contractor agrees to perform the management, administration, construction, and completion of the Project, and directly or through the use of Subcontractors and suppliers, perform and complete all the labor and supply all the materials, equipment, services, temporary utilities, transportation, licensure, permits, insurance, and other work and items related to and/or necessary construction and performance and completion of the Project. Contractor shall supervise, direct, and perform the work for the Project, using Contractor’s best skill and attention. Contractor will perform the Project in a prompt, continuous, and top quality workmanlike manner in strict conformance with the Project Schedule and Plans and Specs. Contractor shall coordinate with the Owner to schedule and hold regular meetings to review, discuss, and provide updates on the Project Schedule and progress with the performance of the Project. In addition to the regular meetings coordinated by Contractor, the Owner has the right to request meetings with the Contractor as frequently as Owner desires to discuss the Project and related items, which Contractor shall promptly cooperate, schedule, and participate. Owner may conduct periodic walk‑through inspections of the Project, and Owner may engage third parties to inspect the Project (giving due consideration to safety concerns). Owner agrees to give notice to Contractor as soon as practicable if Owner observes that any aspect of the Project has not been completed in strict conformity with the Plans and Specs and this Contract. Upon the giving of such notice, Contractor and Owner will reasonably cooperate in determining an appropriate course of action. The Owner may stop any work or any part of the work performed by Contractor if the methods or conditions are such that unsatisfactory work might result, or if improper materials or workmanship are being used. Work on the Project shall not resume until remedial action is taken by the Contractor and approval for resumption of work is given by the Owner. Any period of work stoppage for improper work will not entitle the Contractor to additional compensation or an extension of the Project Schedule.

Subcontractors. No part of this Contract or any interest therein shall be sub-let or transferred without the written consent of Owner. No such written consent shall in any way whatsoever release the Contractor from any obligation, either to the Owner or to the persons employed by the subcontractors. In all cases, the subcontractors are to be considered merely as foremen, employed by the Contractor, and all other foremen employees of the Contractor, are subject to discharge. If the Contractor shall desire to sublet any portion of the work performed under this Contract, Contractor shall make a written application to Owner for permission to sublet. Such written application shall state the portion of the work to be so sublet, the name of the person to whom Contractor proposes to sublet the work, the subcontractor's experience with similar projects, and the equipment and or materials the sub-contractor will be using. Owner is not to be understood as in any way assenting to the subletting of any portion of this Contract unless Owner's assent thereto is given in writing. By subletting any portion of this Contract without written consent, the Contractor shall forfeit all right to any estimate of payment for the work done by such subcontractor. Whenever the Owner shall notify the Contractor in writing that, in Owner's sole discretion, a foreman on the Project site is incompetent, disorderly or improperly performing the work on the Project, the Contractor shall forthwith remove such person and not employ such person on any part of the work without written consent from the Owner.

Compliance with Laws, Permits, Codes. Contractor agrees to perform and complete the Project in strict compliance with all laws, ordinances, rules, regulations of all applicable governmental authorities, codes and standards, including the requirements of the building code in effect, any conditions of surveys, building permit approvals, and/or site plan approvals by the applicable jurisdiction, any quasi-governmental design guidelines or covenants, and the conditions of any other permits relating to the Project. Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations, and lawful orders of public authorities having jurisdiction over the Project and the work, including all notices and compliance bearing on safety of persons and property and their protection from damage, injury, or loss. Contractor, and all its subcontractors and suppliers, shall apply for and obtain all necessary insurance, permits, and licenses for the Project, and shall pay all fees therefor and all other fees required by such governmental authorities. Contractor shall be responsible to Owner for the acts and omissions of the Contractor’s employees, subcontractors and their agents and employees, and other persons performing portions of the Project work under a subcontract entered into with the Contractor. At Final Completion of the Project, Contractor shall restore all property and improvements to their original condition if altered and/or damaged during the Project work.

Payment of Subs/Suppliers; Liens. Contractor shall promptly pay for all costs incurred in connection with, related to, or arising from Contractor’s performance of the Project. Contractor represents and warrants that title to all work, labor, materials, tools, and equipment furnished to the Project will pass to Owner upon Contractor’s receipt of payment for same, free and clear of all liens, claims, security interests or encumbrances (collectively “Liens”); and in connection therewith, Contractor will indemnify, defend, and hold harmless the Owner, at Contractor’s sole cost and expense, against any liens, filings, actions, lawsuits, or proceedings brought against the Owner and/or the Property as a result of Liens or claims for itself and for its subcontractors and suppliers, etc. Should any Liens or claims be filed of record against the Property, or should Contractor receive notice of any unpaid bill or charge in connection with construction of the Project, Contractor shall immediately either pay and discharge the same and cause the same to be released of record, or shall furnish Owner with the proper indemnity either by title policy or by corporate surety bond in the amount of 150% of the amount claimed pursuant to such Lien or claim.

Changes in the Work; Change Orders. Should the Owner at any time during the progress of the work request any modifications, alterations or deviations in, additions to, or omissions from this Contract or the Plans and Specs or Bid, it shall be at liberty to do so, and the same shall in no way affect or make void this Contract. Material or substantial additions, modifications, or changes to the materials, labor, Plans and Specs, the Completion Date, the Project Schedule, the Project costs, and/or the Max Price must be set forth in a change order that specifies in reasonable detail the additions, modifications, and changes (a “Change Order”) in order to be valid and enforceable. Owner has the right to order changes in the Project and to issue Change Orders to Contractor. No Change Order will be binding unless it is in writing, acknowledged by Owner and Contractor, and specifies the resulting additions, modifications, and/or changes. Notwithstanding anything elsewhere in the Contract to the contrary, in no event shall any changes in the Project with respect to the color or other aesthetic features of the Project be made without the written consent of Owner, even if any such change would be considered a minor change in the Project. As the changed work is performed, Contractor shall submit its costs for such work as included line items within its monthly invoice with an in-line notation identifying the associated Change Order, and such line items shall be billed in conformity with this Contract.

Extension of Time for Completion; Force Majeure. Time is of the essence of this Contract and Contractor shall substantially complete the work during the time provided for herein. However, the time during which Contractor is delayed in said work by (a) the acts of Owner or its agents or employees or those under Contract with or permission from Owner, or (b) the acts of God which Contractor could not have reasonably foreseen and provided against, or (c) unanticipated and unforeseeable weather that in fact delays the work, or (d) any strikes, boycotts or obstructive actions by employees or labor organizations and which are beyond the control of Contractor and which it cannot reasonably overcome, or (e) any delay caused in whole, or in part, by acts or omissions within the control of Owner pursuant to C.R.S. § 24-91-103.5, shall be added to the time for completion of the work by a fair and reasonable allowance which shall be documented in a Change Order (defined above). Contractor recognizes, however, that the site of the work is in the Rocky Mountains at a high elevation where inclement weather conditions are common and this fact has been considered by Contractor as an anticipated and foreseeable condition in preparing its Bid and agreeing to the Project Schedule and Completion Date.

Punch List. “Substantial Completion” of the Project shall mean the completion of all work that is part of the Project, as applicable, except for the Punch List (as defined below). Upon Substantial Completion of the Project, Contractor shall notify the Owner Representative in writing that the work will be ready for inspection on a given date as stated in the notice. Such notice shall be given at least 10 calendar days prior to the date stated for inspection. As a condition precedent to reaching Final Completion, Contractor will perform an inspection with the Owner to prepare a punch list naming all repairs and unfinished construction that needs to be corrected and completed before Final Completion (the “Punch List”). Contactor is responsible for all costs, materials, work, and/or labor related to or in connection with the Punch List, and costs of the Punch List will not be reimbursed or otherwise payable to Contractor. The Punch List items must be completed promptly and within a reasonable time frame.

Final Completion. The “Final Completion” means the date when the Project is completely finished in strict conformance with the Plans and Specs and accepted by the Owner, including Punch List items, and the Notice of Completion is signed by both Owner and Contractor.

Insurance.

a. The Contractor agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Contractor pursuant to the terms of this Contract. Such insurance shall be in addition to any other insurance requirements imposed by this Contract or by law. The Contractor shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to the terms of this Contract by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types.

b. Contractor shall procure and maintain, and shall cause any subcontractor and supplier of the Contractor to procure and maintain, the minimum insurance coverages listed in the Supplemental Conditions, if any. If the Supplemental Conditions do not set forth minimum insurance coverage, then the minimum coverage shall be as set forth below. Such coverage shall be procured and maintained with forms and insurance acceptable to Owner. All coverage shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Contractor pursuant to the terms of this Contract. Policies shall be on an “occurrence-basis” and shall name Owner as an “additional insured.” In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. Contractor understands and agrees Owner will hold Contractor responsible in the event any subcontractor fails to have insurance meeting such requirements. Owner reserves the right to approve variations in the insurance requirements applicable to subcontractors upon joint written request of subcontractor and Contractor if, in the Owner's sole discretion.

1. Workmen's Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence of qualified self-insured status may be substituted for the Workmen's Compensation requirements of this Section.

2. Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and TWO MILLION DOLLARS ($2,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall include coverage for explosion, collapse, and underground hazards. The policy shall contain a severability of interests’ provision.

3. Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Contractor's owned, hired and non-owned vehicles assigned to or used in performance of the services. The policy shall contain a severability of interests’ provision. If the Contractor has no owned automobiles, the requirements of this Section shall be met by each employee of the Contractor providing services to the Owner under this contract.

c. Insurance companies providing the coverages specified above must be authorized to do business under the laws of the State of Colorado and must be rated no less than “A-” by A.M. Best Company.

d. All insurance provided under this Contract shall provide for, and the Parties hereby agree to, a waiver of all subrogation rights of the insurer or insureds against Owner and its representatives, officers, agents, employees, even though such person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, or does or does not have an insurable interest. This waiver of subrogation waives and limits the right of the insurer who pays for a loss to seek to recover from Owner.

e. Except for any Contractor Liability insurance that may be required, the policy or policies required above shall be endorsed to include the Owner and the Owner officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the Owner, its officers or employees, or carried by or provided through any insurance pool of the Owner, shall be excess and not contributory insurance to that provided by Contractor. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Contractor shall be solely responsible for any deductible losses under any policy required above.

f. A certificate of insurance shall be completed by the Contractor's insurance agent, and the same shall be done for all of Contractor’s subcontractors and suppliers, as evidence that policies providing the required coverage, conditions, and minimum limits are in full force and effect, and Contractor shall deliver its and all its subs/suppliers insurance certificates to Owner for review and approval by Owner prior to commencement of the Project. No other form of certificate shall be used. The certificates shall identify this Contract and shall provide that the coverage afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the Owner. Certificates of Insurance for all renewal policies shall be delivered to Owner at least fifteen (15) days prior to a policy's expiration date except for any policy expiring on the expiration date of this Contract or thereafter.

g. Failure on the part of the Contractor to procure or maintain policies providing the required coverage, conditions, and minimum limits, and/or failure by Contractor to ensure the same for its subs/suppliers, shall constitute a material breach of contract upon which Owner may immediately terminate this Contract, or at its discretion Owner may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith; and all moneys so paid by Owner shall be repaid by Contractor to Owner upon demand, or Owner may offset the cost of the premiums against moneys due to Contractor from Owner.

h. Prior to commencing work under this Contract, Contractor shall furnish to the Owner certificates of insurance policies evidencing insurance coverage required by the Contract Documents. Contractor understands and agrees that the Owner shall not be obligated under this Contract until Contractor furnishes certificates of insurance. Owner reserves the right to request and receive a certified copy of any policy and any endorsement thereto.

Contractor shall obtain and maintain in full force and effect during the term of this Agreement in accordance with C.R.S. § 38-26-107, unless released as set forth below, Performance and Payment Bonds in the amount of 120% of the Max Price for which Owner, and/or its assigns, are beneficiaries.

l. All Bonds shall be in the form approved by Owner, except as provided otherwise by laws or regulations, and shall be executed by sureties named in the current list of “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies” published in Circular 570 (amended) by the Audit Staff, Bureau of Government Financial Operations, U.S. Treasury Department. All Bonds shall be signed by an agent and shall be accompanied by a certified copy of the agent’s authority to act. Owner reserves the right to exclude any Surety Company on any ground if it deems appropriate within reason.

m. If the surety on any Bond furnished by Contractor is declared bankrupt, becomes insolvent, has its right to do business terminated in any state where part of the work is located, or ceases to meet any of the requirements of the Contract Documents, Design/Builder shall within ten (10) business days thereafter substitute another Bond and surety, both of which must be acceptable to Owner.

n. Fees associated with any bonds and letters of credit will be a cost of the work and included as a cost of the Project.

Damage or Destruction. If the Project is destroyed or damaged by any accident or disaster, such as fire, storm, flood, landslide, earthquake, subsidence, theft or vandalism, then Owner shall have the option to cancel this Contract effective immediately.

Unforeseen Conditions. It is understood and agreed that Contractor, before incurring any other expenses or purchasing any other materials for the Project, shall proceed to inspect the work site and all visible conditions and that if, at the time of inspection therefor, the Contractor finds that the proposed work is at variance with the conditions indicated by the Plans and Specs and/or Bid, or should Contractor encounter physical conditions of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract or inherent in a work site located in the Rocky Mountains, Contractor shall so notify Owner, and Owner shall at that time have the right and option to immediately cancel and terminate this Contract or to instruct Contractor to continue the work and add the additional amount attributable to such unforeseen conditions to the payments due Contractor as set forth above. It is agreed that in the event of any cancellation by Owner in accordance with this Section, Contractor shall be paid the actual costs of the work done prior to the time of cancellation. In computing such costs, supervision time, office overhead and profit shall not be included in such costs to be refunded to Contractor by reason of such cancellation.

Warranty. Contractor warrants all materials and equipment will be new unless otherwise specified, and all work will be performed in a workmanlike manner, with excellent quality, and performed in strict conformance with the Plans and Specs and this Contract, and the work is free from defects in workmanship, to be determined by Owner’s reasonable discretion. This “Warranty” shall commence as of the Commencement Date and remain binding for two (2) years after Final Completion of the Project. Any work failing to conform to this Warranty is considered defective. Contractor agrees, at its sole expense to promptly repair or replace any defects in said materials and/or workmanship or remedy any failure of the work to conform with the Contract, Plans and Specs, and this Warranty. This Warranty excludes any damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. Contractor will cause all subcontractors and third-parties hired by Contractor to provide the same or better Warranty, and Contractor indemnifies Owner for any failure by Contractor to do so. In addition:

a. Notice. Owner must deliver written notice of a Warranty claim to Contractor to exercise its rights hereunder. Upon the receipt of a written Warranty notice from Owner, Contractor shall promptly repair and make good in accordance with the Contract any defects that may appear in the work. Owner agrees to accept a reasonable match in any repair or replacement item in the event the original item is no longer available.

b. Failure to Correct. In the event Contractor fails to timely correct incomplete, nonconforming, or defective work following Owner’s written notice, Owner shall have the right to correct or arrange for the correction of any defects or omissions in the work at Contractor’s sole cost and expense. Contractor shall bear all costs incurred by Owner in correcting such defective work, including, but not limited to, redesign costs materials, equipment, and all services provided by Owner’s personnel. Owner may withhold and offset all costs incurred during any such corrective work against any funds otherwise due or which may become payable to Contractor. If payments are not due Contractor or are not sufficient to cover such amount, Contractor shall immediately upon demand pay the difference to Owner.

c. Assignment of Warranties by Others. Contractor hereby passes through and assigns to Owner all manufacturers' product warranties applicable to components of the Project and all warranties by Contractor’s subcontractors and suppliers.

d. No Limitation. Nothing contained in this Warranty shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under this Contract. Establishment of the time period of commencing as of the Commencement Date and continuing for 365-days after Final Completion of the Project as described in this Warranty relates only to the specific obligation of the Contractor to correct the defective work under this Warranty agreement, and has no relationship to the time within which the obligation to comply with this Contract may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Contractor’s liability with respect to the Contractor’s obligations other than specifically under this Warranty.

Indemnification. To the fullest extent permitted by Colorado law, Contractor hereby covenants and agrees to indemnify, defend, save, and hold harmless the Owner, its officers, employees, and agents from any and all liability, loss, costs, charges, obligations, expenses, attorney’s fees, litigation, settlements, judgments, damages, claims, and demands of any kind whatsoever related to, arising from or out of, or in connection with Contractor’s performance of the Project, any breach of this Contract, negligent act, omission, or other tortious conduct of Contractor, its officers, employees, or agents in the performance or nonperformance of its obligations under this Contract or otherwise related to the Project.

Contractor's Failure to Perform; Termination. Should Contractor, at any time during the progress of the work, refuse or fail to supply sufficient material or workmen for the expeditious progress of said work or fail to strictly perform any other provisions of this Contract, Owner may, upon giving a “Notice to Cure” in writing to Contractor and upon Contractor's failure to remedy any such failure within 14 days from receipt of the Notice to Cure, as determined in Owner’s sole and reasonable discretion, terminate this Contract for cause, and Owner may provide the necessary material and workmen to finish the work and may enter upon the Property for such purpose and complete said work. The expense thereof shall be deducted from the payments remaining due to Contractor pursuant to this Contract, or if the total cost of the work to Owner exceeds the amount of such remaining payments, Contractor shall pay to Owner upon demand the amount of such excess in addition to any and all other damages to which Owner may be entitled. In the event of termination for cause, Owner may take possession of all materials, equipment and appliances belonging to Contractor upon or adjacent to the Property upon which said work is being performed and may use the same in the completion of said work. In addition, Owner may terminate Contractor and this Contract at any time solely for Owner’s convenience and without regard to any fault or failure to perform by Contractor or any other party by giving Contractor 30-days advance written notice of such termination. Upon receipt of a termination notice (whether for cause, convenience, or otherwise) and any instructions from Owner, Contractor shall wind-up and protect the Project and place no further orders and enter into no further subcontracts related to the Project and cease the Project on the termination date specified in the notice. In the event of termination for convenience, Owner will pay Contractor for the work actually completed (exclusive of amounts withheld for disputed amounts) as of the date of termination. In no event shall Contractor be entitled, nor shall Owner be responsible for, any anticipated profits, overhead, Contractor Compensation, consequential damages, or any other type of damages for termination. Termination shall not prejudice or be exclusive of any other legal rights which Owner may have against Contractor.

Owner’s Failure to Perform; Termination. Contractor may only stop work and terminate this Contract and its performance of the Project if payment from Owner of a Progress Payment (excluding amounts withheld for disputed amounts and Retainage) has not been paid to Contractor by the due date under this Contract. As a condition precedent to Contractor stopping work and terminating this Contract and its performance of the Project, Contractor must give 30-days’ advance written notice of its intent to stop work and terminate for cause to Owner, and Owner has a right to cure the payment default, with the right to do so under protest and with the option of paying into an escrow account until the payment dispute is resolved. If Owner so cures the payment default within the 30-day cure period, then Contractor may not stop work or terminate this Contract, and must proceed diligently with the performance and completion of the Project.

Liquidated Damages. It is acknowledged that the Contractor’s failure to achieve Final Completion by the Completion Date (as adjusted pursuant to duly executed Change Orders) will cause Owner to incur substantial economic damages and losses of types and in amounts which are impossible to compute and ascertain with certainty as a basis for recovery by the Owner of actual damages, and that liquidated damages represent a fair, reasonable and appropriate estimate thereof. Accordingly, in lieu of actual damages for such delay, the Contractor agrees that liquidated damages may be assessed and recovered by the Owner as against Contractor and its Surety (if applicable), in the event of delayed completion and without the Owner being required to present any evidence of the amount or character of actual damages sustained by reason thereof; therefore Contractor shall be liable to the Owner for payment of liquidated damages for such delay in the amount of $ .00 for each day that Final Completion is delayed beyond the Completion Date (as adjusted pursuant to duly executed Change Orders). Such liquidated damages are intended to represent estimated actual damages and are not intended as a penalty, and Contractor shall pay them to Owner without limiting Owner’s right to terminate this Contract for default as provided elsewhere herein.

Licensure; Permits; Insurance. Contractor hereby represents and warrants to Owner that Contractor is duly licensed as a general contractor in the State of Colorado, and if applicable, in the County of Garfield. Contractor represents and warrants that Contractor and all of Contractor’s subcontractors have the necessary licenses, permits, and insurance to practice and perform all work contemplated hereby and will remain so licensed and insured at all times relevant to the work and the Project.

Safety. All work on the Project shall be in conformance with Applicable Safety Codes. The “Applicable Safety Codes” shall mean the latest editions, including all amendments, revisions and additions thereto, of the Federal Department of Labor, Occupational Safety and Health Administration's Occupational Safety and Health Standards and Safety and Health Regulations for Construction, of the State of Colorado, Department of Labor and Employment, and of the Town of Basalt. In the case of conflict between the Applicable Safety Codes, the more stringent standard shall apply. Appropriate first aid facilities and supplies shall be kept at the Project site. The Contractor shall be solely responsible for safety on the Project site. Contractor agrees it will make best efforts and precautions for the safety of and protection from damage, injury or loss to laborers on the site and other persons who may be affected thereby, all construction, materials and equipment to be incorporated therein, and other property at the Property.

Clean Up. During construction of the Project, Contractor will keep the premises clean and free from accumulation of waste material, debris and trash and Contractor shall use best management practices for dust suppression and to reduce the tracking of dirt and mud onto public rights-of-way. Contractor shall provide a trash dumpster if necessary and haul directly to a legally designated landfill as needed. Trash shall not be permitted to be stored on the Project site and trash shall be prevented from blowing off the Project site. The Project site and all affected areas shall be dressed-up and finish graded to the satisfaction of the Town at during construction of the Project. No separate measurement or payment will be made for clean-up and dress-up of the Project site, or haul of materials from the Project site. Such work shall be considered incidental to the related scope of work and any associated costs shall be the Contractor's responsibility. Upon Final Completion of the Project, Contractor will remove from the premises all trash, implements, and surplus materials, and leave the Project site "broom swept" and otherwise in a condition allowing immediate occupancy by Owner. All street and traffic signs disturbed by the construction activity shall be reset (or replaced if damaged) in their original location, or in a location directed by the Owner Representative.

Conditions and Information. Contractor represents it has visited the Project site, become familiar with local conditions under which the work is to be performed and correlated personal observations with requirements of this Contract and its incorporated documents. Contractor warrants and represents it has carefully studied and compared the Plans and Specs with each other and with the permit requirements. Before commencing activities, Contractor shall (1) take field measurements and verify the surveys, set-backs, code requirements, and field conditions; (2) carefully compare this and other information known to the Contractor with the Plans and Spec; and (3) promptly report errors, inconsistencies or omissions discovered to the Owner. Contractor represents and warrants that Contractor has closely reviewed the Plans and Specs and accepts the design insofar as to the capability of being constructed.

Project and Financial Records. Contractor shall keep full and detailed accounting as are necessary for proper financial management under this Contract, including without limitation a schedule of values for the Project. Contractor shall maintain a complete set of all books and records prepared or used by Contractor with respect to the Project (“Construction Account”). Contractor shall maintain all invoices and other supporting documentation relating to the funds that were deposited to and disbursed from the Construction Account. Upon Owner’s request, Contractor shall provide such accounting, the schedule of values, the Project Schedule, the Construction Account bank statements, and all of its files, records, subcontracts, invoices from subcontractors and suppliers, insurance certificates (Contractor’s and its subcontractor’s), books, correspondence, instructions, drawings, plans, schematics, inspections, reports, receipts, vouchers, memoranda, and all other similar documentation and data relating to the Project. Contractor shall preserve all such records for a period of four years after the Final Completion or longer where required by law or as required elsewhere in the Contract Documents.

Independent Contractor. It is expressly acknowledged and understood by the parties that nothing in this Contract shall result in, or be construed as establishing an employment relationship. The Contractor shall be, and shall perform as, an independent the Contractor who agrees to use his best efforts to perform the Project on behalf of the Owner. No agent, employee, or servant of the Contractor shall be, or shall be deemed to be, the employee, agent or servant of the Owner. The Owner is interested only in the results obtained under the Contract Documents. The manner and means of conducting the work are under the sole control of the Contractor. None of the benefits provided by the Owner to its employees including, but not limited to, worker's compensation insurance and unemployment insurance, are available from the Owner to the employees, agents or servants of the Contractor. The Contractor shall be solely and entirely responsible for its acts and for the acts of the Contractor's agents, employees, servants and subcontractors during the performance of the Contract.

THE CONTRACTOR, AS AN INDEPENDENT CONTRACTOR, SHALL NOT BE ENTITLED TO WORKERS' COMPENSATION BENEFITS AND SHALL BE OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONEYS EARNED PURSUANT TO THE CONTRACT.

Authority. The Contractor will have no right, authority, or power to bind the Owner, and the Contractor will not be considered an agent of the Owner in the design, construction, erection, or operation of the Project.

Amendments. No amendment, change, Change Order, or modification of this Contract will be valid or binding unless the same is in writing and signed by authorized representatives of the Parties.

Assignment. This Contract is for the personal services of Contractor. Contractor shall not transfer or assign this Contract or its rights and responsibilities under this Contract and any attempt to do so shall be void and constitute a material breach of this Contract.

Assigns and Successors. This Contract shall be binding on, and shall inure to the benefit of, Owner and Contractor and their respective successors and assigns.

Counterparts, Effectiveness. This Contract may be executed in multiple parts and by any number of counterpart signature pages, and may be exchanged by electronic or any other means, all of which taken together constitute one and the same original Contract with the same effect as if each of the signatures were originals affixed to the same instrument. This Contract becomes effective only upon its full execution, but after full execution, is effective as of the Effective Date. Facsimile, electronic, or scanned signatures shall be deemed original signatures for all purposes.

Entire Contract. This Contract contains the entire agreement between Owner and Contractor respecting the matters set forth herein and supersedes all prior Contracts between Owner and Contractor respecting such matters. All addenda, attachments, and exhibits referenced in this Contract are incorporated into the Contract by this reference.

Governing Law, Venue, Jurisdiction, Costs, & Attorneys’ Fees. This Contract is entered into in the state of Colorado, and all disputes arising hereunder are governed by and construed exclusively in accordance with the laws of the State of Colorado that would be applicable to Colorado residents who sign a contract in Colorado for a transaction located in Colorado. In the event of any dispute regarding this Contract or its enforcement or interpretation, the Parties acknowledge and agree that the laws of the State of Colorado shall exclusively apply and that exclusive venue for any such dispute shall be in the county in which the Property is located. The Parties consent to personal jurisdiction in said county and submit to the exclusive jurisdiction and venue of such courts regardless of the location of their residence. If the Owner is the substantially prevailing party in any legal action brought hereunder, it shall be entitled to recover from the non-prevailing party its reasonable costs of enforcement of this Contract, collection of amounts due under this Contract, and the cost of legal and equitable actions and claims in connection with this Contract, including reasonable attorney’s fees for same. If Owner has to enforce a judgment, it shall collect from the judgment debtor all costs and attorneys’ fees incurred in enforcing the judgment.

Notices. All notices, demands, requests, instructions, approvals, and claims must be in writing. All notices required hereunder shall be either hand delivered, sent via email, or by mail with tracking information, or as otherwise required by law. Notices shall be deemed effective upon hand delivery or upon email transmission to the other Party, or, if sent via mail, then on the date of delivery as specified in the tracking information, or if sent as required by law, then on the date as specified by law. Notices shall be delivered to the following recipients:

CONTRACTOR:

OWNER:

Town Manager 101 Midland Avenue Basalt, CO 81621

With a copy to:

Jeffrey J. Conklin Karp Neu Hanlon, P.C.

201 14th Street, Suite 200 P.O. Drawer 2030 Glenwood Springs, CO 81602

Severability. A determination by a court of competent jurisdiction that any part of this Contract is illegal or unenforceable will not cancel or invalidate the remainder of such part or this…