Attachment F - Sample Construction Contract.pdf

Construction Contract, July 2025

CONSTRUCTION CONTRACT

(_____________________Project Description)

THIS CONSTRUCTION CONTRACT (this “Contract”), dated for reference purposes only this

_______ day of ________________, 20** is entered into by and between GARFIELD COUNTY, COLORADO (the “County”), a political subdivision of the State of Colorado, through an authorized representative of the BOARD OF COUNTY COMMISSIONERS (the “BOCC”), and ***************** (the “Contractor”) whose principal place of business is ********************, in accordance with the applicable provisions of the Garfield County Procurement Code.

RECITALS

A. The County distributed an Invitation to Bid (“IFB”) for the construction or repair work to be completed on PROJECT NAME (Project No ______________ as more specifically set forth in the bid documents, addenda and attachments, including all plans and specifications collectively referred to as the “Bid Documents”.

B. The Contractor submitted the offer determined to be the lowest responsive and responsible bidder whose offer complies with all of the requirements prescribed.

C. The BOCC is authorized to acquire and contract for these services by Colorado Revised Statutes §30-11-101, et seq.

D. If this Contract is funded in whole or in part by State or Federal funds the parties may be subject to reporting requirements to the applicable State or Federal agency and any grant documents will be included as an attachment to this Contract.

AGREEMENT

NOW, THEREFORE, for and in consideration of the covenants and conditions set forth herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the County and the Contractor agree as follows:

1. CONTRACT DOCUMENTS. The “Contract Documents” shall consist of the following documents and shall include all terms and conditions specified in the Solicitation and in Contractor’s accepted offer upon which this Contract was awarded, which is incorporated herein for all purposes. The following order of priority shall control:

a. This Contract.

b. The Bid documents attached hereto as Exhibit A.

c. The Contractors Bid, Proposal and additional terms and conditions attached hereto as Exhibit B.

d. The Insurance Requirements, attached hereto as Exhibit C.

e. Any change orders and contract amendments, as applicable.

f. Any Grant documents, as applicable.

2. THE WORK.

a. Statement of Work. The Contractor shall furnish and pay for all the labor, equipment, materials, tools, water, heat, utilities, transportation, facilities, services, and supervision necessary for proper execution, for the complete and timely performance of everything described or reasonably implied from the Contract Documents (the “Work”) whether temporary or permanent and whether or not incorporated or to be incorporated into the Work. The Contractor warrants that it is fully qualified to perform the Work in accordance with the professional standards of the industry and shall perform the Work in a first-class, efficient manner to the satisfaction of the County and in strict accordance with the provisions of this Contract.

b. Knowledge of the Work. Before submitting a bid, the Contractor has become fully informed regarding the Work and any materials or equipment required, including the amount or quantity thereof. No adjustment or modification shall be allowed for any misunderstanding of the Work or of equipment or material requirements, or of the provisions contained in this Contract and in the other Contract Documents. The selection of materials and equipment for the Work shall be in accordance with the Contract Documents and the laws of Colorado.

c. Supervision and Construction Procedures. The Contractor shall supervise and direct the

Work using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences, and procedures for coordinating and all portions of the Work under this contract, unless otherwise indicated by the County. The Contractor shall be solely responsible for jobsite safety. If Contractor determines that the means, methods, techniques, sequences, and procedures are not safe, the Contractor shall give timely notice written notice to the County Representative and other person(s) necessary and shall not proceed with that portion of the Work without further written instructions.

d. Access and Inspection. The County and its representatives shall at all times have access to the Work. The Contractor shall provide proper facilities for access to and for inspection of the Work for the purpose of determining compliance with this Contract and quality of workmanship and material. All materials, equipment and supplies used in the performance of the Work shall be subject to adequate inspection and testing in accordance with generally accepted standards. The County Representative may order those portions of the Work be uncovered, exposed, or made available for observation, inspection or testing at no additional cost. The Contractor shall provide all labor, tools, materials, equipment and supplies necessary to comply with the request of the County Representative. If any portion of the Work is determined to be defective, the Contractor shall bear all costs involved in bringing the Work into compliance with the Contract, including without limitation the cost to replace any materials, to re-perform or to reconstruct. The Contractor shall remove from the work site all work or materials rejected by the County for failure to comply with the Contract whether incorporated in the Work or not at no additional cost to the County.

e. Site Clean-Up. The Contractor shall maintain the work site free from accumulation of waste materials or rubbish caused by the performance of the Work. The Contractor shall remove all rubbish, tools, construction equipment, machinery, and surplus material from the work site when not needed. If the Contractor fails to maintain the work site in an appropriate condition, the County may, after providing notice to the Contractor, perform any necessary clean-up and charge the clean-up costs to the Contractor.

f. Protection of Property. All existing finishes, structures, utilities, services, roads, trees, shrubbery, etc. located on County or adjacent property shall be protected against damage or interrupted services at all times by the Contractor during the term of the Work. The Contractor shall be responsible for repairing or replacing any and all property which is damaged by reason of the Contractor’s operation on the property to the satisfaction of the County.

g. Utilities. The Contractor shall fully comply with the provisions of Article 1.5 of Title 9 of the Colorado Revised Statutes including, but not limited to, providing notice to all utility companies, pipeline owners, or other parties affected either directly or indirectly by the Work. Unless otherwise provided in the Contract Documents, the Contractor shall be responsible for communicating, coordinating, and any costs associated with utilities, as necessary. The Contractor shall cooperate with utilities and the County as provided in the Contract Documents and as required by law. The Contractor shall be responsible for determining the exact location of utilities that may interfere with construction of the Work by exploratory excavation sufficiently in advance of beginning construction in an area so that potential conflicts may be resolved. The Contractor will consider in the Contract Price all of the utility appurtenances within the project; and the Contractor shall not make a claim for delay or additional compensation due to any relocation operations by utilities.

h. Traffic Control. The Contractor shall furnish and maintain all signs, barricades, lights, two-way radios, flaggers, and Traffic Control personnel as necessary to control traffic and provide for the safety of the public, in accordance with the Manual on Uniform Traffic Control Devices and the Colorado Supplement, current edition.

3. AUTHORIZED REPRESENTATIVES.

a. The County designates ______________, as the “County Representative.” The Contractor shall designate a “Contractor Representative” and a “Project Manager.” The Contractor Representative shall have the authority to bind the Contractor. The Project Manager shall be present at the work site as necessary to assure the Contractor’s satisfactory performance. The Project Manager shall also be responsible for advising the County Representative of the status of the Work and for assuring frequent and effective communication with the County and agrees to comply promptly and fully with the reasonable requests and directives issued by the County Representative from time to time. In the event the County Representative is not satisfied with the management, supervision or other performance of the Contractor Representative or the Project Manager, the County Representative may require that the Contractor designate another individual to serve as the Contractor Representative or the Project Manager. The County must approve a substitute Contractor Representative or Project Manager and, in the event no substitute is acceptable, the County may terminate this Contract.

Failure of County’s on-site representative to call to the attention of the Contractor any defective work or deviations from the Contract Documents shall not constitute acceptance of such work by the County or relieve the Contractor of its obligation to perform the Work in strict accordance with the Contract Documents.

4. PERIOD OF PERFORMANCE.

a. Notice of Award. Within seven (7) calendar days of receipt of the notice of award the Contractor shall provide the County with an executed contract, acceptable bonds, and certificates of insurance. A Notice to Proceed will be issued upon County approval of the bonding and insurance. The Contractor shall perform no Work until the County Representative issues a Notice to Proceed.

b. Contract Time. The Contractor shall commence work under the Contract on or before the 15th day following Contract execution or the 30th day following the date of award, whichever comes later, or per the selected start date allowed in the special provisions. If the Contractor fails to provide a Certificate of Insurance or the appropriate bonds by this date, the Contract Time shall commence, and work will not be allowed pending the receipt of these documents. This will be considered a non-excusable delay, and no time extension will be granted. The Contractor shall complete the Work and fulfill all its other obligations no later than _____________________. All time limits are of the essence in this Contract.

c. The contractor promptly after being awarded the Contract shall prepare and submit a Contractor’s construction schedule and update schedule at appropriate intervals not longer than once per month or as mutually agreed upon.

6. PRICE AND PROGRESS PAYMENTS. The County shall pay the Contractor the not-to-exceed price of _____________________________________ Dollars ($_____________________) (the “Contract Price”) based upon the prices set forth in the Contractor’s Bid Schedule and in accordance with the following schedule:

a. Before the first application for payment, the Contractor shall submit to the County

Representative a schedule of values prepared in such form and supported by such data to substantiate the work completed to ensure it can be matched against the pay applications and invoices.

b. If the Contractor is satisfactorily performing the Contract, and provided the required schedule updates have also been submitted and approved, the County shall make partial payments at the end of each calendar month or as soon thereafter as practicable of ninety-five percent (95%) of the Contract Price based on the calculated value of the Work completed (the “Partial Payments”) and shall retain five percent (5%) of the amount due to the Contractor (the “Retained Amount”) until the Work is complete. If applicable, the Contractor shall make payments to its subcontractors in accordance with C.R.S. §24-91- 103.

c. The County shall hold the Retained Amount until Final Acceptance (as defined in

Paragraph 7 below). If the Contractor has completed the Work in a manner finally acceptable to the County, the County may authorize payment of the Retained Amount upon written request by invoice of the Contractor (the “Final Payment”). Before the Final Payment is made, the County and the Contractor, as applicable, shall comply with Paragraph 7.b. titled Final Completion and Payment of this Contract.

d. The Contractor shall, as soon as practicable after the end of the week during performance of the Work, meet with the County to review and finalize an itemized summary of the Work performed stating the percentage of the Work that has been completed and the type of services performed. The County shall not be required to pay disputed items until the dispute is resolved. Payment of any invoice shall not act as a waiver of the County’s right to recover in full any overpayment revealed by any subsequent audit or inspection.

No air travel, car rental, entertainment, education expenses, meals, or similar or related costs shall be payable without prior approval of the County.

e. The Contractor shall maintain complete and accurate records of time spent and materials used for performance of the Work, together with any invoices, timecards, or other supporting data reasonably requested. All records, data and documentation shall be retained by the Contractor for a period of not less than three (3) years after completion of the Work, and shall be subject to review, inspection and copying by the County upon reasonable notice. Incorrect payments to the Contractor due to omission, error, fraud, or defalcation may be recovered from the Contractor by deduction from subsequent payments due the Contractor under this Contract or other contracts between County and Contractor.

7. SUBSTANTIAL COMPLETION AND PAYMENT.

a. Substantial Completion. Substantial Completion is the stage in the progress of the work when the work or designated portion thereof is sufficiently complete in accordance with the contract documents so that the County can occupy or utilize the work for its intended use. When the Contractor considers that the work, or a portion thereof which the County agrees to accept separately, is substantially complete, the Contractor shall prepare and submit to the County a comprehensive list of items to be completed or corrected prior to Final Payment. Failure to include an item on such list does not alter the responsibility of the Contractor to complete all work in accordance with the contract documents. Upon receipt of the Contractor's list, the County will inspect to determine whether the work or designated portion thereof is substantially complete. If the

County’s inspection discloses any item, whether or not included on the Contractor's list, which is not sufficiently complete in accordance with the contract documents so that the County can occupy or utilize the work or designated portion thereof for its intended use, the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct such item upon notification by the County. In such case, the Contractor shall then submit a request for another inspection by the County to determine Substantial Completion. When the work or designated portion thereof is substantially complete, the Contractor will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the County and Contractor for security, maintenance, heat, utilities, damage to the work and insurance, and shall fix the time within which the Contractor shall finish all items on the list accompanying the Certificate. Warranties required by the contract documents shall commence on the date of Substantial Completion of the work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. The Certificate of Substantial Completion shall be submitted to the County for their written acceptance of responsibilities assigned to them. Upon acceptance, the County shall make payment of retainage applying to such work or designated portion thereof that is substantially complete. Payment shall be adjusted for work that is incomplete or not in accordance with the requirements of the contract documents.

b. Final Completion and Payment. Upon receipt of written notice that the work is ready for final inspection and acceptance, the County will promptly make such inspection and determine if the work is acceptable under the contract documents and if the contract has been fully performed. If the County agrees that the contract has been fully performed, they will notify the Contractor in writing of their approval and intent to advertise a notice of final settlement in accordance with C.R.S. § 38-26-107. The County shall condition publication and final settlement upon receipt of a duly executed Consent of Surety Letter. Such final settlement shall be advertised as provided by statute at least twice, the last publication appearing at least ten (10) days prior to the date of final settlement. On the date of final settlement (or such later date as may be permitted by statute if claims are asserted or litigation is commenced alleging nonpayment of finds due for labor, materials, supplies, etc.), Final Payment shall be made in full. The publication requirements of this paragraph shall only apply to contracts where the Purchase Order is $50,000 or greater.

c. The Contractor shall also deliver to the County all statements to support state sales and use tax refunds and any as-built drawings. The Contractor shall provide the County with a letter of approval for contract closure from any surety furnishing bonds for the Work provided on AIA Form G707 (Consent of Surety Letter) or equivalent form.

8. TIME EXTENSIONS AND COMPENSATION FOR DELAY.

a. Remedy. If the Contractor is delayed or disrupted in the performance of the Work, the Contractor’s exclusive remedy with respect to such delay or disruption shall be as stated in this Paragraph.

b. Time Extensions. Evaluation of all time extension requests shall be based upon the project schedule approved by the County prior to commencement of the Work.

c. Definitions. The following words shall have the meaning set forth below:

i. “Contractor Delay” is defined as delay on a particular date resulting from acts or omissions within the control of the Contractor or its subcontractors, agents, or suppliers, including any delay within their joint control.

ii. “No-Fault Delay” is defined as delay on a particular date resulting from events beyond the reasonable control of and without the fault or negligence of either the Contractor or the County or their agents, employees, contractors, subcontractors, sub-subcontractors, or suppliers.

iii. “County Delay” is defined as delay on a particular date resulting from acts or omissions within the control of the County, its agents, employees, or contractors, including the County’s Representative.

iv. “Concurrent Delay” is defined as the occurrence on a particular date of one or more instances of County Delay and Contractor Delay, County Delay and No-Fault Delay or Contractor Delay and No-Fault Delay.

d. Completion Date Adjustment. An adjustment in the Completion Date for delay on a particular date shall be made under this subparagraph if any delay on such date is classified as either County, No-Fault or Concurrent Delay. The adjustment in the Completion Date shall only be in proportion to the amount of the delay, which is attributable to County, or No-Fault Delay and such delay affects the projected Completion Date. No adjustment in the Completion Date shall be allowed for the portion of the delay that is attributable to Contractor Delay, including but not limited to, that portion of a Concurrent Delay which includes Contractor Delay.

e. Notice of Claim for Delay. For any day on which Contractor is prevented from performing the Work due to No-Fault Delay, County Delay or Concurrent Delay, Contractor shall submit a written claim of delay for that day to the County Representative. Such written claim of delay shall set forth the reason for the delay and shall be delivered on or before the seventh (7th) day following the day for which the delay is claimed. If the written claim of delay is not delivered timely, the claim shall be waived. The County Representative, upon consideration of the factors set forth herein, shall conclusively determine the existence of any delay. The County Representative shall, within seven (7) days after receipt of the written claim of delay, deliver a written response accepting or denying the claim. If no response is delivered to the Contractor within said seven (7) day period, the claim is denied.

f. Price Adjustment. An adjustment in Contract Price for delay on a particular date shall be made under this subparagraph only if such delay is classified as either County Delay or Concurrent Delay when such Concurrent Delay includes County Delay. The adjustment in Contract Price shall only be in proportion to the portion of the delay costs, which is directly attributable to County Delay. No adjustment in Contract Price shall be made for the portion of the delay costs, which is attributable to Contractor Delay, or No-Fault Delay, or that portion of a Concurrent Delay which includes Contractor Delay or No-Fault Delay or both.

g. Mitigation. An adjustment in Contract Price shall be made under this subparagraph only to the extent to which the Contractor can demonstrate that its time-related costs to complete the Work will be increased. The Contractor expressly acknowledges its obligation to minimize the cost impact of compensable delays. The Contractor shall, to the best of its ability, re-assign labor and equipment, commence unaffected portions of the Work, and otherwise minimize delay costs. In no event shall the County be liable for payment of delay costs, which could have been avoided or mitigated by any means reasonably available to the Contractor or for consequential damages.

9. DEFAULT AND DAMAGES. If the Contractor fails to comply with any provision of the Contract

Documents, the Contractor shall be liable for any and all damages, including without limitation, the cost of procuring similar supplies and services and all other costs and expenses incurred by the County because of such failure. If the Contractor fails or refuses to perform the Work on schedule, or to complete the Work in a timely and satisfactory manner, the County may terminate this Contract and the Contractor’s right to proceed hereunder. If the County terminates this Contract under this paragraph, the Contractor may, at the option of the County, be required to cease any or all Work provided for under this Contract and shall be liable for any additional cost to the County for services acceptable to the County from another contractor as well as any actual damages associated with such failure to perform. The cost to complete the Work or any portion thereof which remains unperformed at the time of such termination, together with any other damages, shall be deducted from any sum payable hereunder before Final Payment to the Contractor.

10. LIQUIDATED DAMAGES AND COUNTY DELAY DAMAGES.

a. Liquidated Damages. This clause is not applicable to this Contract.

11. CHANGES IN THE WORK. The County Representative, by written instructions issued to the Contractor, may extend the Start Date or the Completion Date or make such changes in the Work as may be necessary to accomplish the purposes intended to be provided under this Contract. The County Representative shall also have such further authority, if any, in accordance with the County purchasing policy to initiate or process change orders affecting the Contract Price or quantity of services to be performed. All other changes to this Contract must be made by contract amendments. The Contractor shall not commence any changed or increased work prior to receipt of a duly executed change order or contract amendment unless directed by the County in writing as provided herein. Except as provided below, the County shall have no duty or obligation whatsoever to compensate or to reimburse the Contractor for any additional work not specifically authorized as provided herein. In the event

(i) the County requires additional compensable work to be performed by the Contractor prior to the execution or other finalization of a change order or contract amendment, and (ii) the Contractor has submitted to the County an estimate of the cost for the additional compensable work, then the County shall reimburse the Contractor for the costs associated with such additional work on a periodic basis in accordance with the terms of this Contract.

12. ENTIRE AGREEMENT. This Contract contains the entire agreement of the parties relating to the subject matter hereof. The Contractor’s rights and obligations shall be solely governed by the terms and conditions of this Contract and the Contract Documents. The terms and conditions of any Contractor invoice, Contractor time sheet, or other form, including but not limited to indemnification, limitation of liability, or cancellation fees, shall be void and of no effect against the County notwithstanding any signatures on such form by a County employee. Any County employee’s signature on Contractor’s forms shall be effective only to establish receipt of services. This Contract may only be modified or amended by a writing signed by the authorized signatories of the parties.

13. TERMINATION. The County reserves the right to terminate this Contract, in whole or in part, with or without cause by written notice to the Contractor. In the event of termination, the Contractor shall incur no additional expenses and shall perform no further Work for the County under this Contract after the date of receipt of the notice of termination, unless otherwise specified by the County. The County shall pay the Contractor for all Work satisfactorily performed prior to receipt of the notice of termination and for other services required by the County to be completed prior to termination and satisfactorily performed.

14. APPROVAL OF SUBCONTRACTORS AND CONSULTANTS. The Contractor shall not employ any subcontractors or consultants without the prior written approval of the County Representative. Prior to commencing any Work, Contractor is responsible to ensure that each subcontractor or consultant has provided the appropriate insurance as required for the Contractor under this Contract. The Contractor shall be responsible for coordination of the Work and the acts and omissions of its agents, employees, subcontractors, consultants, and suppliers, and shall bind each to the terms of this Contract so far as are applicable. This Contract is voidable by the County if subcontracted by the Contractor without the express written consent of the County and the County may terminate this Contract if the Contractor assigns or subcontracts its performance of this Contract without the prior written consent of the County Representative, which may be denied or conditioned in the sole discretion of the County Representative.

15. CONSTRUCTION BY COUNTY OR BY SEPARATE CONTRACTORS. The County reserves the right to perform construction operations related to the project with its own personnel and award separate contracts in connection with other portions of the project. The County shall provide for coordination of the activities performed with its own personnel and of each separate Contractor. All Contractors and their representatives shall communicate with each other and the County to accommodate for construction schedules as deemed necessary after joint review.

16. INDEPENDENT CONTRACTOR STATUS, PAYMENT OF TAXES, AND UNEMPLOYMENT

INSURANCE. The Contractor is an independent contractor and is not an agent, servant, or employee of the County. The Contractor and its employees are not entitled to workers’ compensation benefits through the County. The Contractor is solely responsible for necessary and adequate workers’ compensation insurance and shall be responsible for withholding and paying all Federal and State taxes. The Contractor and its employees are not entitled to unemployment insurance benefits unless unemployment compensation coverage is provided by the Contractor or an entity other than the County. The Contractor hereby acknowledges full and complete liability for and timely payment of all Local, State and Federal taxes imposed including, without limitation, tax on self-employment income, unemployment taxes and income taxes.

17. INDEMNIFICATION, INSURANCE, AND BONDS.

a. Indemnification. The County cannot and does not agree to indemnify, hold harmless, exonerate, or assume the defense of Contractor or any other person or entity for any purpose. Contractor shall defend, indemnify and hold harmless the County, its commissioners, officials, officers, directors, agents, and employees from all claims, demands, suits, actions or proceedings, including workers’ compensation claims, in any way resulting from or arising out of this Contract, including those for professional negligence, except for those damages resulting from the sole negligence of the County’s commissioners, officials, officers, directors, agents and employees.

b. Insurance. The Contractor and its subcontractors shall purchase and maintain such insurance in a company or companies licensed to do business in the State of Colorado as will protect them from claims which may arise out of or result from operations under the Contract, whether such operations be by themselves or by any subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. The insurance required in this subparagraph shall be written for not less than the amounts set forth in Exhibit C, attached hereto. The Contractor shall provide certificates evidencing such coverage to the County Representative prior to commencing the Work and during the term of this Contract shall provide the County written evidence of continuing insurance coverage within three (3) business days of a request from the County. The Contractor shall provide the County no less than thirty (30) days’ prior written notice of any proposed change to, or cancellation of the insurance coverage. Any proposed change to the insurance coverage shall comply with the terms of this Contract. If requested by the County, the Contractor shall request from its insurance company an endorsement to the insurance policy for this Contract, in a form approved by the County Attorney’s Office, which will require the insurance company to provide the County with notice of cancellation of the policy. The Contractor shall promptly comply with all terms of the endorsement and shall pay the cost of the endorsement. Any deviations below the insurance standards set forth above must be approved by Garfield County Safety and Compliance.

c. Performance and Payment Bonds. Prior to commencing work, the Contractor shall furnish to the County, at the Contractor’s expense, a separate performance bond and a labor and materials bond, for an amount not less than 100% of the Contract Price. The bonds shall be issued by a qualified corporate surety licensed to transact business in Colorado. If at any time during performance of the Work the surety on the bonds shall be disqualified from doing business in Colorado, or shall become insolvent or otherwise impaired, the Contractor shall furnish bonds from an alternate surety acceptable to the County. The bonds shall be delivered to the County prior to the commencement of the Work. The County in its sole discretion may require Contractor to increase the bonds in an amount equal to the cost of additional work authorized pursuant to a duly executed change order or contract amendment.

d. Warranty. The Contractor warrants that the materials and/or workmanship conforms to the Contract Documents and that the materials used are of good quality and new and that the Work is free from defects. If, within one year after the start of the Warranty Period, any Work is found to be defective, the Contractor shall promptly and without cost to the County, replace any materials or re-perform any portion of the Work found to be defective in accordance with the terms of this Contract.

At least sixty (60) calendar days prior to the expiration of the Warranty Period, the County Representative shall make an inspection to determine whether the Work has been completed in accordance with this Contract and shall submit a written list of any defects to the Contractor (the "Warranty Work"). The Contractor shall promptly correct all Warranty Work without additional cost to the County within the Warranty Period. lf any Warranty Work cannot be corrected within the Warranty Period, the Contractor shall submit a letter to the County Representative for approval requesting an extension of time to complete such item (the "Request for Extension of Warranty Work"). The Request for Extension of Warranty Work must be received by the County Representative within seven (7) calendar days of the Contractor's receipt of the Warranty Work and shall include the Contractor's justification for the request and a schedule for completion of the Warranty.

The Contractor shall assign to the County any longer-term guarantee of materials used by the Contractor as may be provided by the manufacturer. If the Contractor fails to proceed promptly in accordance with the warranty and guarantees, the County may have the Work performed at the expense of the Contractor. The above guarantee does not limit any claims that the County may otherwise have against the Contractor.

e. Bonds and Certificates of Insurance. All bonds and certificates of insurance required by this Contract shall be submitted by the Contractor prior to the commencement of Work.

Within a reasonable time after submittal, the County shall either approve the bonds and certificates of insurance or notify the Contractor of any unacceptable conditions stating the specific reasons therefore. The Contractor shall promptly re-submit acceptable bonds or certificate of insurance, which the County shall review within a reasonable time. The County shall not issue a notice to proceed until all required certificates of insurance and bonds have been accepted by the County.

18. APPROPRIATION.

a. The BOCC has lawfully appropriated an amount sufficient to pay this amount and is under no obligation to make any future appropriation or allocation to this Contract. Any amount appropriated but not earned by the end of the calendar or fiscal year in any year in which this Contract is in effect shall automatically expire at the end of the calendar or fiscal year.

Notwithstanding any other terms of this Agreement, it is expressly understood and agreed that:

i. Any County financial obligation, whether direct or contingent, for all or any part of the work under this Agreement, shall extend only to monies duly and lawfully appropriated and budgeted by the County and irrevocably pledged pursuant to the purposes of this Agreement;

ii. The County does not by this Agreement irrevocably pledge present cash reserves for payments in this or future fiscal years;

iii. This Agreement is not intended to create a multiple/fiscal year direct or indirect financial obligation of the County;

iv. The obligation of the County for expenditures, if any, arising during subsequent fiscal years in which this Agreement could be extended and be in effect, shall only extend to utilization of monies appropriated and budgeted and encumbered for the purpose of this Agreement in the fiscal year in which obligations arise; and

v. No change order may be issued requiring compensation for work which causes the aggregate payable amount under this Agreement to exceed the amounts appropriated, budgeted and encumbered for the payment of this Agreement in the fiscal year in which such obligations arise, unless the Contractor receives written assurance by the County that lawful appropriations to cover the cost of the additional work have been made. Any work completed for this Agreement shall be secured from harm until future monies are appropriated so that additional work may commence. In the event any future appropriation is made by the County for the purposes of this Agreement, the County will inform the Contractor in writing of any amounts appropriated for work proposed herein and will tender a renewed or amended Agreement covering the work to be compensated by such appropriation

vi. If this Contract is funded in whole or in part with State or Federal funds, it is subject to and contingent upon the continuing availability of State or Federal funds for the purposes hereof.

vii. If the subject of this Contract is for the design or construction of a public works project, as contemplated by C.R.S. §24-91-103.6, as amended, this section shall constitute notice of phased construction with initial appropriation for the current fiscal and calendar year. The County may consider subsequent appropriations necessary for performance by the Contractor in any following calendar and fiscal years if the County desires such performance.

19. THIRD-PARTY BENEFICIARIES. The enforcement of this Contract and all rights of action relating to such enforcement, shall be strictly reserved to the County and the Contractor.

Nothing contained in this Contract shall give or allow any claim or right of action whatsoever by any other third person, nor shall anything contained in this Contract be construed as a waiver of any provision of the Colorado Governmental Immunity Act, C.R.S. §24-10-101, et.

seq., as amended. It is the express intention of the County and the Contractor that any such person or entity, other than the County and the Contractor, receiving services or benefits under this Contract shall be deemed an incidental beneficiary only.

20. NOTICES.

a. “Key Notices” under this Contract are notices regarding Contract default, contractual dispute, or termination of the Contract. Key Notices shall be given in writing and shall be deemed received if given by: (i) electronic mail (as set forth in subsection (b) below) when transmitted, if transmitted on a business day and during normal business hours of the recipient, and otherwise on the next business day following transmission; (ii) certified mail, return receipt requested, postage prepaid, three (3) business days after being deposited in the United States mail; or (iii) overnight carrier service or personal delivery, when received. For Key Notices, the parties will follow up any electronic mail with a hard copy of the communication by the means described in subsection (a)(ii) or (a)(iii) above.

The requirement for following up a Key Notice made by electronic mail with a hard copy shall be deemed waived by the receiving party upon acknowledgement, via electronic mail, within three business days of transmission of the Key Notice, that the Key Notice has been received. All other communications or notices between the parties that are not Key Notices may be done via electronic mail. Notice shall be given to the parties at the following addresses:

To the County: ____________________________

AND Procurement and Contracts Director 810 Pitkin Avenue Glenwood Springs, CO 81601

To the Contractor: ____________________________

All Key Notices to the County shall include a reference to the Contract including the Contractor’s name and the date of the Contract.

b. Electronic Mail. The parties agree that: (i) any notice or communication transmitted by electronic mail shall be treated in all manner and respects as an original written document; (ii) any such notice or communication shall be considered to have the same binding and legal effect as an original document; and (iii) at the request of either party, any such notice or communication shall be re-delivered or re-executed, as appropriate, by the party in its original form. The parties further agree that they shall not raise the transmission of a notice or communication, except for Key Notices, by electronic mail to the designated notice recipient email address as a defense in any proceeding or action in which the validity of such notice or communication is at issue and hereby forever waive such defense. For purposes of this Contract, the term “electronic mail” means email.

21. MISCELLANEOUS PROVISIONS.

a. Governing Law and Venue. This Contract shall be governed by the laws of the State of Colorado. Venue for all actions relating to the terms of this Contract shall lie in the Courts of Garfield County, State of Colorado.

b. Assignability. Contractor shall not assign any rights, delegate any duties to any part of the performance required by this Contract without the express written consent of the County.

Enforcement of the terms and conditions of this Contract and all rights of action relating thereto are strictly reserved to the County and the Contractor and nothing contained in this Contract shall give or allow any such right of action to any third party. This Contract is voidable by the County if assigned by the Contractor without the prior written consent of the County. Subject to this limitation, this Contract will inure to the benefit of and be binding upon the parties and their respective successors and assigns.

c. Survival Clause. Notwithstanding anything to the contrary, the parties understand and agree that all terms and conditions of this Contract which may require continued performance or compliance beyond the termination date of this Contract shall survive such termination date and shall be enforceable as provided herein in the event of a failure to perform or comply by a party to this Contract.

d. Construction Defect Action Reform Act. The County and the Contractor agree that this Contract, the Work performed hereunder, and the rights and remedies of each party shall be governed by the terms of this Contract, and shall not be subject to the Construction Defect Action Reform Act, C.R.S. §§ 13-20-801 et seq.

e. Liens. The Contractor and any subcontractors acknowledge that in the State of Colorado, mechanics liens cannot be filed against government owned or public property.

f. Compliance with Laws. The Contractor shall observe and comply with all Federal, State and Local laws, regulations and ordinances that affect the Contractor or those employed or engaged by it, the materials or equipment used and the performance of the Work. The Contractor shall procure all necessary approvals, licenses, inspections, and permits necessary to complete the Work, at its own expense. Compliance with laws shall include, but not be limited to, the following:

i. Tests and Inspections. Testing, inspections, and approvals of portions of the Work required by the Contract Documents or by applicable laws, ordinances, rules, regulations, or orders of public authorities having jurisdiction shall be made at the appropriate time. Contractor shall make arrangements and pay for such tests and inspections. Tests and inspections conducted shall be made promptly to avoid any unreasonable delay in the Work.

ii. Equal Employment Opportunity. The Contractor shall not refuse to hire, discharge, promote or demote, or discriminate in matters of compensation against any person otherwise qualified solely because of race, creed, sex, color, national origin or ancestry, religion, disability, age, sexual orientation, gender identity, veteran status, or any other basis prohibited by Federal, State or Local law.

iii. Safety. The Contractor shall perform the Work in compliance with the requirements of the United States Occupational Safety and Health Act

(“OSHA”).

iv. Use of Colorado Labor. Colorado labor shall be employed to perform the Work to the extent of not less than eighty percent (80%) of each type or class of skilled and common labor employed by the Contractor. The term “Colorado labor” means any person who is a resident of the State of Colorado at the time of employment.

g. Officials Not to Benefit. No elected or employed member of the County government shall be paid or receive, directly or indirectly, any share or part of this Contract or any benefit that may arise therefrom.

h. County’s Ownership of Documents. Any data, reports, drawings, documents or other information provided by the County to the Contractor during the performance of the Work and any reports, drawings or other writings required under this Contract to be produced by the Contractor shall be and remain the sole property of the County at all times. The Contractor shall return or provide to the County all data, reports, drawings, documents, or other information by the Completion Date and before Final Payment of the Contract Price.

i. Conflict of Interest. The Contractor will not knowingly perform any act which would conflict in any manner with the performance of services required to be performed hereunder. By acceptance of this Contract, Contractor certifies that it is engaged in no current project or business transaction, directly or indirectly, nor has it any interest, direct or indirect, with any person or business which might result in a conflict of interest in the performance of the services under this Contract.

j. Waiver. No term or condition of this Contract shall be deemed to have been waived by either party unless the waiver is in writing and signed by both parties or their duly authorized representatives. The failure of a party to enforce any right arising under this Contract on one or more occasions will not operate as a waiver of that or any other right on that or any other occasion.

k. No Waiver Governmental Immunity. The parties acknowledge that the County, its commissioners, officials, officers, directors, agents, and employees are relying upon and do not waive the immunities and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et. seq.

l. Sales Tax Exemption. As County is a government entity and a political subdivision of the State of Colorado, Contractor may qualify for Colorado Sales Tax tax-exempt status to obtain materials or property to be incorporated into the Work. It will be Contractor’s sole responsibility to obtain a sales tax exemption permit from the State of Colorado Department of Revenue. County agrees to supply information or certificates necessary for Contractor to acquire such sales tax exemption permit. Contractor agrees that any exemption acquired or used for completion of the Work contemplated in this agreement shall not be used or extended to other projects performed for parties other than the County.

m. Headings. The section headings provided herein are for convenience only and shall have no force or effect upon the construction or interpretation of any provision hereof.

n. Severability. Should any provision of this Contract be determined by a court of competent jurisdiction to be unenforceable, unconstitutional, or otherwise null and void, the remaining provisions of the Contract shall remain in full force and effect.

o. Proper Execution. Each party represents that all procedures necessary to authorize such party’s execution of this Contract have been performed and that the person signing for such party has been authorized to do so.

p. Execution by Counterparts; Electronic Signatures. This Contract may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The Parties approve the use of electronic signatures for execution of this Contract. All documents must be properly notarized, if applicable. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, C.R.S. §§24-71.3-101 to -121.

[Signature pages follow.]

IN WITNESS WHEREOF, the parties have caused this Construction Contract to be executed and effective as set forth above.

BOARD OF COUNTY COMMISSIONERS CONTRACTOR:

GARFIELD COUNTY, COLORADO **********************************

By: ______________________________ By: _____________________________ Authorized County Representative Authorized Representative Name: Cimberlee Keesbery Name: __________________________ Title: Procurement Manager Title: ___________________________ Date: _____________________________ Date: ___________________________ Address: _________________________

STATE OF COLORADO )

) ss.

COUNTY OF GARFIELD )

On this day, _________________________________ appeared before me and averred that he/she has read the foregoing Construction Contract, is an Authorized Representative of the Contractor, and is duly authorized to execute this Contract on Contractor’s behalf.

Subscribed and sworn to before me this ________day of ___________________, 20____.

My commission expires on:

SEAL ________________________________