Community_Center_IT_Room_AC_Replacement_Contract_-FINAL.doc

TOWN OF WATERFORD

CONTRACT #26-010

Community Center IT Room AC Replacement

This Contract (“Contract” or “Agreement”) is entered into this ____ day of September, 2026, between the TOWN OF WATERFORD, a municipal corporation with its Town Hall located at 15 Rope Ferry Road, Waterford, CT 06385 (hereinafter called the “Town” or “Owner”) and CONTRACTOR., a Connecticut corporation with a principal place of business located at ____________, _______, ___ _____ (hereinafter called the “Contractor”), whereby the Contractor agrees to complete all work and perform all services to complete the project entitled Community Center IT Room AC Replacement located at 24 Rope Ferry Road, Waterford, Connecticut in accordance with the contract documents which consist of the Instructions to Bidders, all addenda thereto, the Proposal, any applicable General, Supplementary and Technical Conditions, drawings, plans and specifications and all other documents attached hereto which are hereby made part of this Contract (the “Contract Documents”). The Contractor agrees to carry on the work with diligence and dispatch, and to furnish such equipment and labor as is consistent with good construction practice and furnish the completed project to the TOWN in a manner consistent with the bid specification in a good and usable condition.

The Town agrees that it will pay the Contractor as specified in accordance with Specifications and the Proposal, and upon satisfactory completion of the work, it will accept the project. After completion of the project, and acceptance by the Town, the Contractor shall submit an itemized final estimate. No later than 31 days after acceptance of the final estimate by the Town, the Town shall pay 95% of the Contract price. No later than six (6) months after acceptance of the final estimate, the Town will pay the 5% retained, unless in that time the materials or workmanship in the project shall have been found to be defective.

The total payment will be _________________ 00/100 ($_________) DOLLARS, subject to additions and/or deletions consistent with approved change orders, if any.

Signed at Waterford, Connecticut this _____ day of September, 2026.

For the CONTRACTOR:

FOR TOWN OF WATERFORD

By:__________________________

Robert J. Brule, First Selectman

Its _________

Duly Authorized

GENERAL CONDITIONS

1. SCOPE OF SERVICES.

a. Subject to the terms and conditions of this Agreement, and in consideration of the compensation set forth in Section 2 of this Agreement, the Contractor shall perform and furnish all duties, deliverables, obligations, tasks, labor, supplies, goods, warranties, materials, equipment, tools, fuel, mobilization, permits, insurances, supervision, cleanup activities, work and all other services necessary to complete the project contemplated by the Contract Documents to remove and a replace an existing ductless split air-conditioning system serving the Community Center IT/Data Room, 24 Rope Ferry Road, Waterford, Connecticut, in accordance with the Contract Documents, including but not limited in accordance with all plans, requirements, drawings and specifications prepared by the Town’s Engineer Kenneth Hipsky, GM2, Inc. attached to said Instructions to Bidders and incorporated herein, and the pricing and requirements of the Contractor’s Proposal dated ___________ attached hereto and incorporated herein (the “Project”).

b. In consideration of the compensation set forth in Section 2 of this Agreement, Contractor shall also perform such tasks, services and work as are necessarily implied by or inferable from said Scope of Work and Project Details to deliver said Project and the indicated results to the Town. The Contractor agrees to comply with all Federal, State and local statutes, codes, regulations, ordinances, rules and other laws relating to, or affecting, the Project, or any part thereof, and to give all requisite notices to proper authorities, and to pay all proper and legal fees and charges thereof, without requiring reimbursement from the Town.

c. Contractor shall assign a project manager with full authority to administer the Project for Contractor with proper training, skill and expertise to implement the Project in accordance with this Agreement. Contractor shall not change such project manager without the Town’s prior written consent, which shall not be unreasonably withheld. The Town will be represented at all times by the Purchasing Agent or an authorized representative of the Purchasing Agent. They shall have the responsibility and authority for the interpretation of the Contract, its specifications and drawings.

d. Contractor’s performance of the work under this Agreement shall not interfere unnecessarily with the operations of the Town or any department or employee thereof.

e. Contractor agrees to perform all work and services required by this Agreement in a good and workmanlike manner, and to carry on the Project with diligence and dispatch continuously from commencement to completion, with a professional and competent work force reasonably acceptable to the Town. Contractor shall replace, at no expense to the Town, any personnel to whom the Town has a reasonable objection. Contractor shall perform such work consistent with the instructions, guidance and directions provided by the Town to Contractor, sound industry practices and in accordance with the highest industry standards prevailing in this locale with regard to similarly situated projects.

f. To the extent permitted by applicable law, the Town may conduct, and Contractor authorizes the Town to conduct, background checks at the Town’s expense on Contractor, its employees, agents and subcontractors who will have, or may have, access to the Town’s facilities or information during the performance of this Agreement. The Contractor recognizes that security is of paramount importance to the Town and agrees to cooperate with the Town to provide, to the extent permitted by applicable law, whatever information, verifications or consents it requires to conduct such background checks.

g. The Contractor represents that it is: (a) thoroughly familiar with, and understands the requirements of, the Project; and (b) has the requisite skill, knowledge and experience to perform and is properly licensed in the jurisdiction where the Project is located to provide the services and perform the work required by this Agreement.

h. The Contractor represents that it has examined the Contract Documents related or relevant to the Project, has generally investigated the nature and conditions of the Project site and locality, has generally familiarized itself with conditions affecting the difficulty of the work, and has entered into this Agreement based on its own examination, investigation and evaluation and without reliance upon any opinions, comments and representations whatsoever, express or implied, of the Town. In addition, the Contractor represents that it has visited the Project location and that it has generally acquainted and familiarized itself with the site.

i. Except with Town’s prior knowledge and consent, the Contractor shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise the Contractor’s professional judgment with respect to the Project. The Contractor shall not use, distribute, sell or divulge any information obtained from the Town through this Agreement for the Contractor’s own purposes or for the benefit of any person, firm, corporation or other entity without the prior, written consent of the Town.

j. In the event of a conflict or inconsistency between or among this Agreement, the Instructions to Bidders and the Proposal, this Agreement shall have the highest priority, the Instructions to Bidders the second priority, and the Proposal the third priority.

k. Omissions from the drawings or specifications or the mis-description of details of work which are manifestly necessary to carry out the intent of the drawings and specifications, or which are customarily performed, shall not relieve the Contractor from performing such omitted or mis-described details of the work but they shall be performed as if fully and correctly set forth and described in the drawings and specifications.

(1) The Contractor shall check all drawings furnished to it immediately upon their receipt and shall promptly notify the Owner of any discrepancies. Figures marked on drawings shall in general be followed in preference to scale measurements. The Contractor shall compare all drawings and verify the figures before laying out the work and will be responsible for any errors which might have been avoided thereby.

(2) Any discrepancies found between the Drawings and Specifications and site conditions or any errors or omissions in the Drawings or Specifications shall be immediately reported to the Purchasing Agent in writing, who shall promptly correct or cause to be corrected such error or omission in writing. Any work done by the CONTRACTOR after its discovery of such discrepancies, errors or omissions without notifying the Purchasing Agent shall be done at the CONTRACTOR'S risk.

(3) Further instructions may be issued by the Purchasing Agent during the progress of the work by means of Drawings or oral or written instruction to make more clear or specific the Drawings and Specifications or as may be necessary to explain or illustrate changes in the work to be done. The CONTRACTOR shall carry out the work in accordance with the additional Drawings and instructions

l. All layout, site engineering and inspection shall be provided by the Town’s engineer. No field changes shall be allowed without specific notification of and written pre-approval by the Owner. Any changes will be recorded on prints and initialed by the Town’s engineer.

2. COMPENSATION.

a. In consideration of Contractor’s complete and satisfactory performance and delivery of all goods, deliverables and services in accordance with this Agreement, including Section 1 hereof, the Town shall pay Contractor the total sum of ___________ 00/100 ($__________) DOLLARS, in accordance with the Contractor’s Proposal, subject to additions and/or deletions consistent with approved changes orders, if any. Without limitation of any other provision of this Agreement, the total contract sum of $_____________ includes performance and payment bonds and full cost of the project and cost of all permits and insurance required by this Agreement.

b. Progress payments made to the Contractor for the Work completed and incorporated into the Project will be reduced by five (5%) percent retainage. The Contractor's retainage shall be released to Contractor when the Contractor achieves substantial completion of the Project. Payment of final retainage shall be made in accordance with Section 2(d) hereof. As a prerequisite for each payment, the Contractor shall provide partial lien waivers executed by the Contractor and its sub-contractors and suppliers for the completed Work. A final lien waiver must be signed, notarized and received by Town prior to the release of Final Payment. Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete, as determined by Town, in accordance with the Contract Documents so that the Town can occupy or utilize the Work for its intended use.

c. Contractor shall submit invoices monthly, describing in reasonable detail the goods and services provided in the preceding month. Along with each invoice, Contractor shall also include: (a) a statement identifying all subcontractors and/or sub-consultants who have performed all or a portion of the Project in connection with the invoice then submitted, and a certification that all subcontractors identified as having provided work or materials within all prior invoices have been paid by Contractor; and (b) data, assurances or other documentation as may be reasonably required by the Town establishing performance, payment or satisfaction of Contractor’s obligations arising out of this Agreement due as of the then applicable invoice, such as receipts or releases and waivers of liens and/or claims, if any. Payment shall be made by the Town within forty-five (45) days after the Town’s receipt of an invoice and acceptance of services rendered under this Agreement. Notwithstanding anything to the contrary in this Agreement, the Town may withhold payment to the Contractor hereunder if and for so long as the Town finds any of the Contractor’s services to be defective, untimely, unsatisfactory, incomplete or Contractor otherwise fails to perform any of its obligations or is in default; provided, however, that any such holdback shall be limited to an amount sufficient in Town’s reasonable opinion to cure any such default or failure of performance by Contractor or to otherwise protect Town’s interests. The Town shall notify Contractor of any such holdback and the reasons therefore within forty five (45) days of its receipt of the subject invoice, and the parties shall make every effort to resolve the disputed portion of the invoice. No interest shall accrue on disputed invoices.

d. Final payment shall not be due to Contractor until Contractor submits to Town the following in such form as may be required by Town: (a) a statement identifying all subcontractors and/or sub-consultants who have performed all or a portion of the Services certifying the subcontractors and/or sub-consultants have been paid for their services or materials, as applicable; and (b) data, assurances or other documentation as shall be reasonably required by Town establishing performance, payment or satisfaction of Contractor’s obligations arising out of this Agreement, such as receipts or releases and waivers of liens, claims, security interests or encumbrances. Contractor warrants that upon submittal of an invoice, to the best of Contractor’s knowledge, information and belief, all work included in the Project shall be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, subcontractors, sub-consultants, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials and equipment relating to the Project. Contractor’s acceptance of such final payment shall constitute a full release of any and all Claims Contractor has against Town, if any, accruing prior to such payment. Acceptance of Final Payment by the Contractor, or any final payment by a subcontractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment.

e. If Contractor engages any subcontractors or sub-consultants to perform any of the Project, Contractor shall pay any such subcontractor or sub-consultant within ten (10) days (or such shorter period as required by applicable law) of the Contractor’s receipt of payment from the Town for undisputed services provided by the subcontractor.

f. Accounting records of the Contractor and any subcontractor and/or sub-consultant of Contractor pertaining to this Project shall be kept in accordance with generally accepted accounting principles and shall be available to Town and/or Town’s authorized representative upon request.

g. Upon receipt of the final application for payment, the Contractor shall also submit to the Town data establishing its satisfactory completion of all obligations this Agreement. The Town will inspect the work and if it has been completed in accordance with the terms and conditions of this Agreement, then the entire balance shall become due and payable. Under no circumstances shall mechanic’s liens be filed against any Town owned property. Absent prior written authorization from the Town, the Contractor shall not be entitled to any reimbursable expenses.

h. The Town may withhold from payments, in whole or in part, to the extent reasonably necessary to protect the Town. The Town may also withhold from any payment if subsequently discovered evidence may nullify the whole or a part of a payment previously issued, to such extent as may be necessary to protect the Town from loss for which the Contractor is responsible, including loss resulting from acts and omissions because of

.1 defective Work not remedied;

.2 third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the Town is provided by the Contractor;

.3 failure of the Contractor to make payments properly to subcontractors or for labor, materials or equipment;

.4 reasonable evidence that the Work cannot be completed for the unpaid balance of the contract sum;

.5 damage to the Town or a separate contractor;

.6 reasonable evidence that the Work will not be completed within the contract time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay;

.7 repeated failure to carry out the Work in accordance with the Contract Documents;

.8 a lien or attachment is filed; or .9 Material Breach of this Agreement or any portion thereof.

If payment is withheld pursuant to the foregoing, the Town may, at its sole option, issue joint checks to the Contractor and to any subcontractor or material or equipment suppliers to whom the Contractor failed to make payment for work properly performed or material or equipment suitably delivered. The Contractor agrees that in the event Town exercises its rights hereunder, Contractor shall endorse such joint check and the contract sum shall be reduced by the amount of such payment(s). If the Contractor fails or refuses to execute such joint check, the Town may, in its sole discretion and for its sole benefit, pay the subcontractor or supplier or any other party directly and reduce the contract sum accordingly.

3.

TIME OF COMMENCEMENT AND COMPLETION OF WORK. Upon execution of this Agreement, the Contractor shall submit to the Town a schedule of work progress, to be agreed upon by the Contractor and the Town. This schedule shall also be used as a basis for the Contractor’s applications for payment, consistent with the payment schedule set forth in Section 3 of this Agreement.

The Contractor agrees to commence work hereunder upon written receipt from the Town of a “Notice to Proceed” and to finish the Project and to deliver the same to the Town complete in every respect according to said specifications on or before ninety (90) days from the Notice to Proceed. The time for completion may be extended to any reasonable delay, which is due exclusively to causes beyond the control and without the fault of the Contractor, including acts of God, fires, floods and labor disputes.

The Contractor shall perform said work in an efficient and diligent manner. It is agreed and understood that time is of the essence, and that if the Contractor fails to perform the work within the period allowed, the Town shall have the right to terminate this Agreement and/or pursue appropriate legal recourse for the Contractor's breach of this Agreement.

Contractor acknowledges that delays resulting from changes in the Work, extreme weather, changes to the sequencing of Work, late approvals, defects, errors or omission in contract documents, material shortages, transportation, strikes and other causes are inherent in the construction process. Contractor acknowledges that it has accounted for delays in the contract sum and agrees to bring no claim for money damages as a result of any delay or hindrance however caused. In the event that the Contractor claims that it has been delayed or hindered for any reason whatsoever through no fault of its own, in whole or in part, the time period for performance hereunder will be equitably extended and such extension of time shall be Contractor’s sole remedy for delay. Under no circumstances will the Town be liable to Contractor or its subcontractors for damages resulting from any delays or hindrances regardless of whether all or part of such delay or hindrance may be in any way attributable to the acts, failure to act or the omissions of Town, Town’s agents or representatives or consultants.

In all events, Contractor waives all forms of impact claims including but not limited to efficiency, loss of productivity, trade stacking, disruption, re-sequencing and the like regardless of whether all or part of such impact may be in any way attributable to the acts, failure to act, or the omissions of the Town, Town’s agents, representatives or consultants.

Contractor shall include similar provisions for no damage for delay and no impact claims in the agreements the Contractor executes with its subcontractors, suppliers and other persons or entities that Contractor employs to perform Work.

4.

REVIEW OF WORK. The Contractor shall permit the Town, its officers, agents, and employees, to review, at any time, all work performed under the terms of the Agreement at any stage of the work.

5.

WARRANTY. The Contractor warrants the work against defects in parts and workmanship for a period of one (1) year from the date of completion and final acceptance. All goods installed by Contractor in connection with the Project, including the split-air condition system, shall have a manufacturer’s warranty, and it shall be a condition to final payment that Contractor cause all manufacturer’s warranties to be assigned to the Town consistent with this paragraph.

6.

INDEMNIFICATION. To the fullest extent permitted by applicable law, Contractor shall indemnify, defend and hold harmless the Town, its councils, departments, boards, commissions, committees, officers, officials, employees, agents, representatives, successors and assigns and anyone else acting for or on behalf of Town (collectively, “Indemnitees”) from and against all damages, injuries to persons (including death) and to property, actions, claims, liabilities, losses, demands, actions, causes of action, suits, sums, fines, penalties and expenses (including but not limited to reasonable attorney’s fees, experts’ fees and costs, whether incurred in or out of court and/or arbitration or as part of a regulatory, administrative or bankruptcy proceeding) of any nature whatsoever, foreseen or unforeseen, whether arising in tort, contract or otherwise (collectively “Claims”), which Claims arise out of or are connected with: (i) the negligent, reckless and/or intentional acts, misconduct, errors or omissions of Contractor, its subcontractors, consultants and/or anyone directly or indirectly employed by any of them or for whom they are responsible; (ii) the failure or the alleged failure of Contractor, its subcontractors, consultants, contractors and/or anyone directly or indirectly employed by any of them or for whom they are responsible, to comply with any applicable Federal, State or local laws, statutes, ordinances or regulations of any governmental authority in connection with the performance or non-performance of the any work for or services to the Town hereunder, and/or (iii) Claims that the Contractor’s deliverables to the Town in connection with the Project or Town’s permitted use thereof infringes upon any patent, copyright or uses, intellectual property rights and/or trade secret of any third party. The Contractor shall also be required to pay any and all attorney’s fees, expert fees and costs incurred by the Town Indemnified Parties in enforcing any of the Contractor ’s obligations under this provision, whether or not a lawsuit, arbitration or other proceeding is commenced. The obligations set forth in this section 5.1 shall survive termination of this Agreement and/or full or partial performance of the Project, and shall not be limited by applicable insurance. The Contractor further undertakes to reimburse the Town for damage to property of the Town caused by the contractor, or its employees, agents, subcontractors or material men or by faulty, defective or unsuitable material or equipment used by him or them.

7.

ASSIGNMENT. The Contractor shall not assign, subcontract, or transfer this Contract or the work contemplated herein, in whole or in part, without the prior written approval of the Town.

8.

BOOKS AND RECORDS.

a. The Contractor shall maintain or cause to be maintained all records, books, or other documents relative to charges, costs, expenses, fees, alleged breaches of Agreement, settlement of claims, or any other matter pertaining to the Contractor's demand for compensation by the Town for a period of not less than five (5) years from the date of the final payment for work performed under this Agreement.

b. Contractor acknowledges and agrees that any Confidential Information disclosed to it, its subcontractors or other representatives pursuant to this Agreement shall be used only for the purposes contemplated in this Agreement, shall be kept confidential and in conformance with all state and federal laws relating to data privacy, and shall remain the Town’s property. The term "Confidential Information" means all Town knowledge, information, data, materials and trade secrets gained, obtained, derived, produced, generated or otherwise acquired by the Contractor and its agents, employees, subcontractors and consultants with respect to the Project. "Confidential Information" shall not include any information: (1) that is or becomes publicly available without a breach of this Agreement, or (2) that Contractor can show (by contemporaneous written records) that Contractor had it in its possession before beginning the Project and before disclosure by Town. Contractor agrees that the Confidential Information constitutes valuable trade secrets of the Town and that money damages cannot fully remedy any breach of this Section. Contractor agrees that the Town may obtain an injunction to prevent or enjoin any breach of the obligations of this Section. Contractor and its employees, agents, contractors and consultants shall not make or otherwise disseminate any public announcement or press release with respect to the Project without the Town’s prior written approval.

Within thirty (30) days of Town’s written request, or upon earlier request of Town, Contractor shall return all Confidential Information provided by Town to Contractor, or Contractor’s employees or agents in connection with this Agreement. Additionally, Contractor, upon the request of Town, shall destroy all copies of such Town provided data, documents, or information in Contractor’s possession or control, and provide Town with proof of such destruction.

c. Town shall be the owner of and have all common law, statutory, and other reserved rights in all representations, in any medium of expression now known or later developed, of the tangible and intangible creative work performed by the Contractor, its subcontractors or consultants in connection with the Project, including, without limitation, studies, surveys, models, sketches, drawings, specifications, and other similar materials (the “Instruments of Service”). Contractor shall not own or claim a copyright in the Instruments of Service. Submittal or distribution to meet regulatory requirements or for other purposes in connection with this Project is not to be construed as publication in derogation of the Town’s reserved rights. Contractor is authorized to use and reproduce the Instruments of Service provided to it solely and exclusively for execution of the work. All copies made under this authorization shall bear the copyright notice, if any, shown on the Instruments of Service. Contractor may not use the Instruments of Service on other projects or for additions to this Project outside the scope of the work without the specific written consent of the Town, which the Town may withhold in its sole discretion.

d. Notwithstanding anything in this Agreement to the contrary, Contractor shall not use, publish, distribute, sell or divulge any information obtained from Town through this Agreement for Contractor’s own purpose or for the benefit of any person, firm, corporation or other entity without the prior, written consent of Town. Any reports or other work product prepared by Contractor while performing services under this Agreement shall be owned solely and exclusively by Town and if applicable, any lender or funding source of Town, and cannot be used by Contractor for any purpose beyond the scope of this Agreement without the prior consent of Town. Any information designated by Town in accordance with applicable law as confidential shall not be disclosed to any third parties without the consent of Town.

9.

INSURANCE. The Contractor shall secure, pay for and maintain such insurance as statutorily required to protect it from claims under the Workers' Compensation Acts, claims for damages because of bodily injury, including by not limited to claims for personal injury, sickness or disease or death of any person as a result of the nature of its work under the terms of this Agreement, and from all claims for damages because of injury to or of destruction of property, including but not limited to loss of use resulting therefrom which may arise out of any of the services provided pursuant to this Agreement.

The Contractor agrees, upon the signing of this Agreement, to supply to the Town with a Certificate of Insurance in compliance with the following:

Contractor agrees to maintain in force at all times during which work/services are to be performed, the following minimum limits of insurance coverage. Coverage will include Contractor and all of its agents, employees and sub-contractors and other providers of services and shall name the Town of Waterford and its respective employees and agents as Additional Insureds on a primary and non-contributory basis to the bidders Commercial General Liability and Automobile Liability policies. The insurance company(ies) must be licensed with the State of Connecticut and have a Financial Strength Rating of “A-” or higher and a Financial Size Rating of VIII or higher from A.M. Best Company.

(Minimum Limits)

General Aggregate

Products/Completed Operations Aggregate $1,000,000

$2,000,000

$2,000,000

Each Accident $1,000,000

Umbrella*

(Excess Liability) Each Occurrence

Aggregate $1,000,000

$1,000,000

Workers’ Compensation &

Employers’ Liability Work Comp

EL Each Accident

EL Disease Each Employee

EL Disease Policy Limit Statutory Limits

$500,000

$500,000

$500,000

The Town of Waterford must be named as an “Additional Insured” on this policy.

Certificates of Insurance documenting the coverage listed above must be presented to The Town of Waterford prior to the commencing of any work/service. The Contractor/Vendor also agrees to provide replacement and/or renewal certificates at least 30 days prior to the expiration of each policy.

If any policy is written on a “Claims Made” basis, the policy must be continually renewed for a minimum of two (2) years following the completion date of the work/service. If the claims-made policy is replaced and/or the retroactive date is changed, then the expiring policy must be endorsed to extend the reporting period for claims for two (2) years from the completion date.

The insurance requirements of the Agreement are an integral element of the Agreement. Any defect in the insurance required in this Agreement may result in termination of this Agreement, at the sole option of the Town. Nothing in this Agreement shall limit the liability of the Contractor or any of this subcontractors or sub-consultants for errors and/or omissions related to performance of their services.

10.

REPRESENTATION. The Contractor represents that it is an expert in relation to the work to be performed under this Agreement. The Contractor further represents that it has the requisite skill, expertise, and knowledge necessary to perform the scope of services required under the terms of this Agreement, including any supplementary work and the Town relies upon said representation in executing this Agreement.

11.

CONTRACT EXTRAS. It is specifically understood and agreed by the Contractor that all contract extras, change orders and changes in scope of services regarding this contract shall be governed by the Town Charter, code of ordinances and purchasing rules and regulations. The Town shall not be liable for payment of any additional costs or change orders unless it pre-approves such changes in writing.

The Town may modify the Services without invalidating this Agreement. If the Contractor believes it is entitled to a change in its schedule or compensation for the change in the services required by this Agreement, the Contractor shall promptly notify the Town in writing, along with supporting calculations and pricing. Pricing shall be in accordance with the pricing structure set forth in this Agreement. Any change in Contractor’s schedule or compensation, if any, shall be made by a written agreement signed by both parties prior to such change being performed. If Contractor fails to submit such notice, then it shall be deemed to have waived any right to additional compensation for such services and the same shall be deemed part of the Project.

Notwithstanding the above, Town may direct Contractor in writing to perform the change prior to reaching an agreement between Town and Contractor on any price and schedule adjustments. If so directed, Contractor shall not suspend performance of the Agreement during the review and negotiation of such change as long as the change is reasonably foreseeable alteration of the services originally contemplated herein. In the event Town and Contractor are unable to reach agreement regarding changes in price and/or schedule associated with a change order, the matter shall be submitted to the dispute resolution process provided in this Agreement.

Subject to the above, the Contractor agrees that Town may in its discretion make mutually agreeable alterations, deviations, additions or omissions from the aforesaid plan and specifications, without affecting or making void this agreement. In such case, the Contractor and Town shall evaluate and appraise such mutually agreeable alterations, deviations, additions or omissions and add to or deduct from the amount herein to be paid to the Contractor and the excess of deficiency occasioned by said alterations, deviations, additions or omissions shall be agreed in writing. In the event that any alterations, deviations, additions or omissions are made, a reasonable additional time may be allowed to the Contractor for the work caused thereby.

12.

NON-APPROPRIATION. Contractor acknowledges that the Town is a municipal corporation and that the Town's obligation to make payments under this Agreement is contingent upon the appropriation by the Town for funds sufficient for such purposes, for each budget year in which this Agreement is in effect. If sufficient funds to provide for the payment(s) hereunder are not appropriated, the Town may terminate this Agreement upon notice in writing to the Contractor.

13.

TERMINATION FOR CAUSE. This Agreement may be terminated by the Town upon seven (7) days prior written notice to the Contractor in the event of substantial failure to perform the terms of this Agreement by the Contractor, as solely determined by the Town.

14. TERMINATION FOR CONVENIENCE. The Town may terminate this

Agreement in whole or in part at any time upon written notice to Contractor for Town’s convenience. In the event of a termination for Town’s convenience, Contractor shall be entitled to payment, calculated on a pro rata or other equitable basis, determined by Town in its sole discretion, for services satisfactorily performed prior to termination. Such payment shall be the total extent of Town’s liability. In no event shall Contractor be paid for work performed or costs incurred after receipt of notice of termination, or for costs incurred by suppliers or subcontractors or sub consultants which could have been avoided. Town will not pay the Contractor for loss of anticipated profits or overhead on Services not performed or revenue or other economic loss arising out of or resulting from such termination. Upon receipt of notice of termination, unless the notice directs otherwise, the Contractor shall do the following: discontinue all Services, placing orders, or entering into contracts for supplies, assistance, facilities, and materials, cause its suppliers and/or subcontractors and/or sub consultants to cease their work for this Agreement, and shall promptly cancel all existing orders and contracts that are chargeable to this Agreement; and furnish the Town with copies of all Project materials within seven (7) days of receipt of notice of termination.

15.

DISPUTES.

a.

Town and Contractor shall commence all claims and causes of action, whether in contract, tort, or otherwise, against the other arising out of or related to this Agreement within the time period specified by applicable law.

b.

Town and Contractor shall endeavor to resolve claims, disputes and other matters in question (“Dispute”) between them by negotiation in good faith.

c.

Any claim, dispute or other matter in question arising out of or relating to this Agreement shall be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceeding by either party. The parties to this Agreement shall endeavor to resolve claims, disputes and other matters in question between them by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association. The request for mediation shall be filed in writing with the other party to this Agreement and with the American Arbitration Association. The request may be made concurrently with the filing of a demand for arbitration but, in such event, mediation shall proceed in advance of arbitration or legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. The parties shall share the mediator’s fee and filling fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.

d.

In the event a Dispute arises out of or relates to this Agreement, the enforcement and/or breach thereof, the prevailing party shall be entitled to reimbursement of attorney’s fees and costs from the non-prevailing party.

e.

In no event, whether as a result of breach of contract, tort liability (including negligence), strict liability, or otherwise, shall either party be liable to the other party under this Agreement for special, punitive, incidental, indirect, exemplary, or consequential damages of any nature whatsoever.

e. Either party may restrain any breach or threatened breach of any covenant, agreement, term, provision or condition herein contained, but the mention herein of any particular remedy shall not preclude the moving party from any other remedy it might have, either at law or in equity. The failure of either party to insist upon the strict performance of anyone of the covenants, agreements, terms, provisions or conditions of this Agreement or to exercise any right, remedy or election herein contained or permitted by law, shall not constitute or be construed as a waiver or relinquishment for the future of such covenant, agreement, term, provision, condition, right, remedy or election, but the same shall continue and remain in full force and effect. Any right or remedy that either party may have at law, in equity or otherwise upon breach of any covenant, agreement, term, provision or condition in this Agreement contained upon the part of the defaulting party to be performed, shall be distinct, separate and cumulative and no right or remedy, whether exercised by the moving party or not, shall be deemed to be in exclusive of any other. No covenant, agreement, term, provision or condition of this Agreement shall be deemed to have been waived by either party unless such waiver shall be in writing, signed by either party or either party’s agent duly authorized in writing. Consent of either party to any act or matter must be in writing and shall apply only with respect to the particular act or matter to which such consent is given and shall not relieve the defaulting party from the obligation wherever required under this Agreement to obtain the consent of moving party to any other act of matter. This Agreement may not be changed orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought.

16.

GOVERNING LAWS. This Agreement shall be governed by the laws of the State of Connecticut, without regard to conflict of law principles.

17.

NOTICES. All notice provided for in or permitted under this Agreement shall be made in writing, and may be given or served by (i) delivering the same in person or by email transmission to the party to be notified (so long as the party receiving such an email confirms receipt), or (ii) depositing the same in the United States mail, postage prepaid, registered or certified with return receipt requested, and addressed to the party to be notified at the address herein specified, or (iii) by depositing same with a reputable overnight courier service. If notice is deposited in the United States mail pursuant to clause (ii) of this Section, it will be effective from and after the day it is received by the addressee or receipt thereof is refused by the addressee, unless such day is not a business day, and then it shall be deemed received on the next business day. For the purpose of notice, the address of the party shall be, until changed as hereinafter provided for, as follows:

If to the Town: Shea Davy, Purchasing Agent, 15 Rope Ferry Road, Waterford, CT, bdavy@waterfordct.org If to the Contracting Party: [Contractor to insert] or to such other address as the Town may specify in a written notice to the Contractor or the Contractor may specify in a written notice to the Town in accordance with this Section. Each party shall have the right from time to time and at any time to change its respective address and each shall have the right to specify as its address any other address by at least fifteen (15) days’ written notice to the other party.

18. Taxes. Town is exempt from paying Connecticut sales and use taxes on certain purchases as provided in the Connecticut General Statutes. Contractor shall not charge Town for such sales and use taxes. Upon execution of this Agreement, Contractor will provide to Town a signed W-9.

19. Use of Town Name or Logo. Contractor agrees not to use the name, logo, or any other marks (including, but not limited to, colors and music) owned by or associated with Town or the name of any representative of Town in any sales promotion work or advertising, or any form of publicity, without Town’s written permission in each instance.

20. Independent Contractor. CONTRACTOR SHALL PERFORM ITS DUTIES HEREUNDER AS AN INDEPENDENT CONTRACTOR AND NOT AS AN EMPLOYEE OF TOWN. NEITHER CONTRACTOR NOR ANY AGENT OR EMPLOYEE OF CONTRACTOR SHALL BE OR SHALL BE DEEMED TO BE AN AGENT OR EMPLOYEE OF TOWN. CONTRACTOR SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME TAX WITHHOLDING, INCLUDING ALL FEDERAL AND STATE INCOME TAX ON ANY MONIES PAID PURSUANT TO THIS AGREEMENT. CONTRACTOR ACKNOWLEDGES THAT CONTRACTOR AND ITS EMPLOYEES ARE NOT ENTITLED TO TAX WITHHOLDING, WORKER’S COMPENSATION, UNEMPLOYMENT COMPENSATION, OR ANY EMPLOYEE BENEFITS, STATUTORY OR OTHERWISE. CONTRACTOR SHALL HAVE NO AUTHORIZATION, EXPRESS OR IMPLIED, TO BIND TOWN TO ANY AGREEMENTS, LIABILITY, OR UNDERSTANDING EXCEPT AS EXPRESSLY SET FORTH HEREIN. CONTRACTOR SHALL BE SOLELY RESPONSIBLE FOR THE ACTS OF CONTRACTOR, ITS EMPLOYEES, AND AGENTS.

21.

Differing Site Conditions

A.

The Contractor shall promptly, and before the conditions are disturbed, give a written notice to the Owner of:

1.

Subsurface or latent physical conditions at the site which differ materially from those indicated in this contract, or

2.

Unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and provided for in the

Contract.

B.

The Owner shall investigate the site conditions promptly after receiving the notice. If the conditions do materially so differ and cause an increase or decrease in the Contractor's cost of, or the time required for, performing any part of the work under this Contract, whether or not changes as a result of the conditions, an equitable adjustment shall be made under this clause and the contract modified in writing accordingly.

C.

No request by the Contractor for an equitable adjustment to the contract under this clause shall be allowed, unless the Contractor has given the written notice required.

D.

No request by the Contractor for an equitable adjustment to the Contract for differing site conditions shall be allowed if made after final payment under this contract.

22.

Reports The Contractor and each of his subcontractors shall submit to the Town, such schedules of quantities and costs, progress reports, payrolls, estimates, delivery tickets and other data as the Town may request.

23.

Provisions Required By Law Deemed Inserted Each and every provision of law and clause required by law to be inserted in this Contract shall be deemed to be inserted herein and the Contract shall be read and enforced as though it were included herein, and if, through mistake or otherwise, any such provision is not inserted, or is not correctly inserted, then upon the application of either party the contract shall forthwith be physically amended to make such insertion or correction.

24.

Acceptance of Final Payment Constitutes Release The acceptance by the Contractor of final payment shall be and shall operate as a release to the Owner of all claims and all liability to the Contractor for all things done or furnished in connection with his work and for every act and neglect of the Owner and others relating to or arising out of this work. No payment, however, final or otherwise, shall operate to release the Contractor or his sureties from any obligations under this contract or the Performance and Payment Bond.

25.

Contract Bid Breakdown (Lump Sum) The Contractor shall furnish a breakdown of each lump sum bid within 10 days after date of award of contract. Partial payments will be based on this breakdown. The Contractor's breakdown will be reviewed by the Town to insure that costs are proportioned properly between early and late pay items. Any unbalanced items or other discrepancies will be revised by the Town and the approved breakdown will be utilized as a basis for progress payment to the Contractor.

26.

Severability of Contract. In the event that any provision of the Contract is later held to be unenforceable for any reason, it shall be deemed void, and all remaining provisions shall continue in full force and effect.

27.

Contract Freely Negotiated. The Contractor and Town acknowledge and agree that the Contract has been freely negotiated by both parties, and that, in any dispute over the meaning, interpretation, validity or enforceability of the Contract or any of its terms or conditions, there shall be no presumption whatsoever against either party by virtue of that party having authored the Contract or any portion thereof.

TECHNICAL SPECIFICATIONS

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