Consruction Template DNR Version C 01_29_2019.docx

CMS #

CT PMAA 2019*

STATE OF COLORADO construction agreement

Signature Page

THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT

Each person signing this Contract represents and warrants that he or she is duly authorized to execute this Contract and to bind the Party authorizing his or her signature.

CONTRACTOR

Insert Contractor's Full Legal Name, including "Inc.", "LLC", etc...

Signature

Printed Name and Title of Signatory

Date: _________________________

STATE OF COLORADO

Jared S. Polis, Governor Department of Natural Resources Dan Gibbs, Executive Director Division Name

Printed Name and Title of Signatory

2nd State or Contractor Signature if Needed

By: Name & Title of Person Signing for Signatory

LEGAL REVIEW

Philip J. Weiser, Attorney General

By:_________________________________________ Assistant Attorney General

In accordance with §24-30-202 C.R.S., this Contract is not valid until signed and dated below by the State Controller or an authorized delegate.

STATE CONTROLLER

Robert Jaros, CPA, MBA, JD

Name and Title of Signatory

Effective Date: _____________________

Project Summary Table State Agency Department of Natural Resources Colorado Parks and Wildlife 1313 Sherman Street Denver, Colorado 80203 Bid Number:

Contractor Insert Contractor's Full Legal Name, including "Inc.", "LLC", etc...

Address Project Name and Purpose Project name and brief description of project work

Contract Maximum Amount

Performance Time Comment by Maggie Van Cleef: Choose either dates or number of days, based on the bid. This way of marking contract term must be consistently used throughout the contract change orders, and can only be changed through a formal amendment.

# Days Calendar Days

OR

Month Day, Year

1. PARTIES

This Contract is entered into by and between Contractor named above and on the Signature Page for this Contract (the “Contractor”), and the State of Colorado acting by and through the State agency named above and on the Project Summary Table for this Contract (the “State” or “CPW”). Contractor and the State agree to the terms and conditions in this Contract.

2. TERM AND EFFECTIVE DATE

a. The Effective Date for this Contract is the date on which this Contract is approved and signed by the Colorado State Controller or designee, as shown on the Signature Page for this Contract.

b. This Contract shall not be valid or enforceable until the Effective Date. The State shall not be bound by any provision of this Contract before the Effective Date, and shall have no obligation to pay Contractor for any work performed or expense incurred before the Effective Date or after the expiration or earlier termination of this Contract.

c. Contractor’s performance under this Contract will not begin until the issuance of the Notice to Proceed as specified in the CPW’s General Conditions, as revised July 18, 2018 (the “GCs”).

d. The State is entering into this Contract to serve the public interest of the State of Colorado as determined by its Governor, General Assembly, or Courts. If this Contract ceases to further the public interest of the State, the State, in its discretion, may terminate this Contract in whole or in part.

3. AUTHORITY

Authority for the State to enter into this Contract exists in 33-10-107(1)(d) C.R.S. The Contractor was selected under the procurement code, 24-103-204 24-103-202 C.R.S. Comment by Cotsapas, Ion: Use for DQ1s Comment by Cotsapas, Ion: Use for For IFBs

4. CONTRACT DOCUMENTS

The GCs and the Contract Documents described therein are all incorporated by reference and made a part of this Contract.

5. CONTRACTOR PERFORMANCE

a. Contractor shall perform its obligations under this Contract in accordance with the professional standards of care, skill and diligence in Contractor’s industry, trade, or profession to the satisfaction of the State and its Project Manager in strict accordance with the provisions of the Contract Documents.

b. The Contractor shall furnish all the work, labor and materials and perform all the work required for the complete and prompt execution of everything described or shown in, or reasonably implied from the Contract Documents above described project.

c. The Contractor shall complete the entire project within the Performance Time as shown in the Project Summary Table. The Contractor shall begin work within ten days from the Notice to Proceed and to prosecute the work with due diligence to completion. The Contractor agrees that the completion of the project within the Performance Time is an essential feature of this Contract and agrees to proceed with due diligence, taking all precautions and making all necessary arrangements to ensure the completion of the work within the prescribed time.

d. The Contractor agrees that failure to complete the work within the time allowed shall be considered as a breach of the Contract and entitle the State of Colorado to collect liquidated damages for delay in completion, in accordance with the bid documents.

6. PAYMENT

The State shall pay the Contractor an amount not to exceed the Contract Maximum Amount specified in the Project Summary Table for performance of this Contract, subject to any additions or deductions as provided in the Contract Documents. Payments under this Contract are subject to the terms and conditions outlined in the GCs. Comment by Cotsapas, Ion: For Design/Build contracts (or those that include a Professional Services component) use the following paragraph here (choose one of the two highlighted sentences and update the exhibit reference as necessary):

“The State shall pay the Contractor an amount not to exceed the Contract Maximum Amount specified in the Project Summary Table for performance of this Contract, subject to any additions or deductions as provided in the Contract Documents. For design services, payment shall be made based upon the rates specified in Exhibit A, Wage Rates, which is attached hereto and made a part hereof by reference in accordance with the Contract requirements within the not-to-exceed subtotal for design services in the Bid Schedule herein OR the lump sum fee for tasks and specific deliverables as outlined in the Bid Schedule. Payments under this Contract for construction activities are subject to the terms and conditions outlined in the GCs.”

7. GENERAL PROVISIONS

a. Binding Effect Except as otherwise provided in the GCs, all provisions of this Contract, including the benefits and burdens, shall extend to and be binding upon the Parties’ respective successors and assigns.

b. Captions and References The captions and headings in this Contract are for convenience of reference only, and shall not be used to interpret, define, or limit its provisions. All references in this Contract to sections (whether spelled out or using the § symbol), subsections, exhibits or other attachments, are references to sections, subsections, exhibits or other attachments contained herein or incorporated as a part hereof, unless otherwise noted.

c. Counterparts This Contract may be executed in multiple, identical, original counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.

d. Entire Understanding This Contract represents the complete integration of all understandings between the Parties related to the project, and all prior representations and understandings related to the project, oral or written, are merged into this Contract. Prior or contemporaneous additions, deletions, or other changes to this Contract shall not have any force or effect whatsoever, unless embodied herein.

e. Jurisdiction and Venue All suits or actions related to this Contract shall be filed and proceedings held in the State of Colorado and exclusive venue shall be in the City and County of Denver.

f. Modification Except as otherwise provided in this Contract, any modification to this Contract shall only be effective if agreed to in a formal amendment to this Contract, properly executed and approved in accordance with applicable Colorado State law and State Fiscal Rules.

g. Statutes, Regulations, Fiscal Rules, and Other Authority Any reference in this Contract to a statute, regulation, State Fiscal Rule, fiscal policy or other authority shall be interpreted to refer to such authority then current, as may have been changed or amended since the Effective Date of this Contract.

h. Severability The invalidity or unenforceability of any provision of this Contract shall not affect the validity or enforceability of any other provision of this Contract, which shall remain in full force and effect, provided that the Parties can continue to perform their obligations under this Contract in accordance with the intent of the Contract.

i. Survival of Certain Contract Terms Any provision of this Contract that imposes an obligation on a Party after termination or expiration of the Contract shall survive the termination or expiration of the Contract and shall be enforceable by the other Party.

j. Third Party Beneficiaries Except for the Parties’ respective successors and assigns described in this §7., this Contract does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties. Enforcement of this Contract and all rights and obligations hereunder are reserved solely to the Parties. Any services or benefits which third parties receive as a result of this Contract are incidental to the Contract, and do not create any rights for such third parties

k. Waiver A Party’s failure or delay in exercising any right, power, or privilege under this Contract, whether explicit or by lack of enforcement, shall not operate as a waiver, nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise of such right, power, or privilege.

l. Indemnification To the extend authorized by law, Contractor shall indemnify, save, and hold harmless the State, its employees, agents and assignees (the “Indemnified Parties”), against any and all costs, expenses, claims, damages, liabilities, court awards and other amounts (including attorneys’ fees and related costs) incurred by any of the Indemnified Parties in relation to any act or omission by Contractor, or its employees, agents, Subcontractors, or assignees in connection with this contract.

8. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-1)

a. Controller’s Approval. §24-30-202(1), C.R.S.

This Contract shall not be valid until it has been approved by the Colorado State Controller or designee

b. Fund Availability. §24-30-202(5.5), C.R.S.

Financial obligations of the State payable after the current State Fiscal Year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available.

c. Governmental Immunity No term or condition of this Contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, of the Colorado Governmental Immunity Act, §24-10-101 et seq. C.R.S., or the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b)

d. Independent Contractor Contractor shall perform its duties hereunder as an independent contractor and not as an employee. Neither Contractor nor any agent or employee of Contractor shall be deemed to be an agent or employee of the State. Contractor and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for Contractor or any of its agents or employees. Unemployment insurance benefits will be available to Contractor and its employees and agents only if such coverage is made available by Contractor or a third party. Contractor shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Contract. Contractor shall not have authorization, express or implied, to bind the State to any agreement, liability or understanding, except as expressly set forth herein. Contractor shall (i) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (ii) provide proof thereof when requested by the State, and (iii) be solely responsible for its acts and those of its employees and agents.

e. Compliance with Law Contractor shall strictly comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices.

f. Choice of Law Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Contract. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. Any provision incorporated herein by reference which purports to negate this or any other Special Provision in whole or in part shall not be valid or enforceable or available in any action at law, whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision shall not invalidate the remainder of this Contract, to the extent capable of execution.

g. Binding Arbitration Prohibited The State of Colorado does not agree to binding arbitration by any extra-judicial body or person. Any provision to the contrary in this Contract or incorporated herein by reference shall be null and void.

h. Software Piracy Prohibition. Governor's Executive Order D 002 00 State or other public funds payable under this Contract shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Contractor hereby certifies and warrants that, during the term of this Contract and any extensions, Contractor has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that Contractor is in violation of this provision, the State may exercise any remedy available at law or in equity or under this Contract, including, without limitation, immediate termination of this Contract and any remedy consistent with federal copyright laws or applicable licensing restrictions.

i. Employee Financial Interest / Conflict of Interest. §§24-18-201 and 24-50-507, C.R.S.

The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this Contract. Contractor has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of Contractor’s services and Contractor shall not employ any person having such known interests.

j. Vendor Offset. §§24-30-202(1) and 24-30-202.4, C.R.S.

Subject to §24-30-202.4(3.5), C.R.S., the State Controller may withhold payment under the State’s vendor offset intercept system for debts owed to State agencies for: (i) unpaid child support debts or child support arrearages; (ii) unpaid balances of tax, accrued interest, or other charges specified in §§39-21-101, et seq., C.R.S.; (iii) unpaid loans due to the Student Loan Division of the Department of Higher Education; (iv) amounts required to be paid to the Unemployment Compensation Fund; and (v) other unpaid debts owing to the State as a result of final agency determination or judicial action.

k. Public Contracts for Services. §§8-17.5-101, et seq. C.R.S.

Contractor certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who will perform work under this Contract and will confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this Contract, through participation in the E-Verify Program established under Pub. L. 104-208 or the State verification program established pursuant to §8-17.5-102(5)(c), C.R.S., Contractor shall not knowingly employ or contract with an illegal alien to perform work under this Contract or enter into a contract with a Subcontractor that fails to certify to Contractor that the Subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Contract. Contractor (i) shall not use E-Verify Program or State program procedures to undertake pre-employment screening of job applicants while this Contract is being performed, (ii) shall notify the Subcontractor and the contracting State agency within 3 days if Contractor has actual knowledge that a Subcontractor is employing or contracting with an illegal alien for work under this Contract, (iii) shall terminate the subcontract if a Subcontractor does not stop employing or contracting with the illegal alien within 3 days of receiving the notice, and (iv) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to §8-17.5-102(5), C.R.S., by the Colorado Department of Labor and Employment. If Contractor participates in the State program, Contractor shall deliver to the contracting State agency, Institution of Higher Education or political subdivision, a written, notarized affirmation, affirming that Contractor has examined the legal work status of such employee, and shall comply with all of the other requirements of the State program. If Contractor fails to comply with any requirement of this provision or §§8-17.5-101 et seq., C.R.S., the contracting State agency, institution of higher education or political subdivision may terminate this Contract for breach and, if so terminated, Contractor shall be liable for damages.

l. Public Contracts with Natural Persons. §§24-76.5-101, et seq., C.R.S.

Contractor, if a natural person 18 years of age or older, hereby swears and affirms under penalty of perjury that he or she (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) shall comply with the provisions of §§24-76.5-101 et seq., C.R.S., and (iii) has produced one form of identification required by §24-76.5-103, C.R.S. prior to the Effective Date of this Contract.

9. FEDERAL FUNDING AND REGULATIONS Delete this section if no federal funding -- also delete this note!

a. All or a portion of this Contract may be funded by federally provided funds pursuant to CFDA #/Federal Agency if no CFDA #. This Contract is subject to and contingent upon the continuing availability of federal funds for the purposes hereof.

b. The Contractor shall comply with all applicable federal statues, regulations, policies, guidelines, OMB Circulars and other requirements, including as they relate to the application, acceptance and use of federal funds for this federally assisted Project including, but not limited to, Office of Management and Budget Circular 2CFR3200 and 32 CFR section 33.26.

c. Federal Audit -The Office of Management and Budgets (OMB) Circular No. 2CFR200 subpart F Audit Requirements defines audit requirements under the Single Audit Act Amendments of 1996 (31 U.S.C. 7501-7507) expending $750,000 or more from all sources (direct or from pass-through entities) are required to have a single audit under the circular. The OMB defines Federal financial assistance within the scope of the circular as assistance received or administered in the form of grants, cooperative agreements, loans, loan guarantees, property (including donated surplus property), interest subsidies, insurance, food commodities, direct appropriations and other assistance. The Circular also requires pass-through entities to monitor the activities of sub-recipients and ensure that sub-recipients meet the audit requirements.

a. The wage rates and other factual unit costs supporting the compensation to be paid by the State for these professional services are accurate, complete and current; and

b. The Contractor understands the original Contract price and that any additions shall be adjusted to exclude any significant sums by which the State determines the contract price had been increased due to inaccurate, incomplete, or non-current wage rates and other factual unit costs; and

c. All such Contract adjustments shall be made within one year following the end of this Contract.

Construction Agreement DNR Version C Page 7 of 7 12/20/2018Rev01/29/2019