EN-25-PAVE-1 Attachment 4 to Book I - DRAFT Contract 06.17.25.pdf

E-470 PUBLIC HIGHWAY AUTHORITY

PUBLIC WORKS CONSTRUCTION/IMPROVEMENT

CONTRACT

CONTRACT NO. EN-25-PAVE-1

This CONTRACT (the “Contract”) for mill and overlay work from Toll Plaza E to I-25(N) is entered into effective as of _____________________, (the “Effective Date”) by and between the E-470 Public Highway Authority, a body corporate and political subdivision of the State of Colorado (the “Authority”), and ___________________ (the “Contractor”).

In consideration of the mutual covenants and stipulations contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:

TERMS

1. CONTRACT DOCUMENTS. This Contract shall incorporate and include all of the following documents (if and as indicated), with such documents to be referred to herein as the “Contract Documents”. The Contract Documents are incorporated herein by this reference as if they are fully set forth in this Contract. In the event of a conflict between or among Contract Documents or between the Contract Documents and this Contract, the documents shall prevail in the order of their listing, in all such instances of a conflict, the terms of this Contract shall prevail over any other Contract Document.

A. Contract signed by the Authority and the Contractor and any change orders issued by the Authority, and the exhibits listed below and incorporated herein by reference:

1. Exhibit A Scope of Work Included: Yes No

2. Exhibit B Work Order Procedure

3. Exhibit C Liquidated Damages

4. Exhibit D Insurance

5. Exhibit E Payment, Performance, and Warranty Bond

6. Exhibit F Schedule of Values

7. Exhibit G Protection of Confidential Information and Data

B. Project Special Provisions:

1. E-470 2025 Resurfacing from Toll Plaza E to I-25 Contract No.

EN-25-PAVE-1, Book IIIA, Project Standard Special Provisions, dated June 10, 2025, Invitation to Bid.

2. E-470 2025 Resurfacing from Toll Plaza E to I-25 Contract No.

EN-25-PAVE-1, Book IIIB, Project Standard Special Provisions, dated June 10. 2025, Invitation to Bid.

C. E-470 General Provisions, if specifically referenced here:

1. E-470 Mill and Overlay Plaza E to I-25(N) Contract No. EN-25-

PAVE-1, Book II, General Provisions, dated June 10, 2025.

D. Detailed Plans:

1. E-470 2025 Resurfacing from Toll Plaza E to I-25 Bid Plans, dated

June 10, 2025.

E. Colorado Department of Transportation (“CDOT”) publications or provisions, if specifically referenced here:

1. CDOT M&S Standard Plans (current edition).

2. CDOT Standard Specifications for Road and Bridge Construction

(current edition, excluding the 100 series).

(The Contractor is responsible for obtaining the effective provisions of CDOT documents as incorporated by the Contract Documents.)

F. Any other specifications which are referenced in the Contract Documents

A. through E. above.

2. SCOPE OF WORK. The Contractor, at its sole cost and expense, shall provide all of the services, management, supervision, labor, materials, goods, administrative support, supplies, and equipment necessary for completing the “Scope of Work” as described in Exhibit A attached hereto in accordance with the Contract Documents (collectively, the “Work”). Exhibit A may include benchmarks or milestones for completion of the Work and a schedule for meetings and/or review of Work performed, as applicable.

3. COMPENSATION. The Authority shall compensate the Contractor for the Work, subject to the Authority’s annual appropriations and in accordance with and subject to all of the conditions in the Contract Documents for the lump sum of ___________________ Dollars

($___________________), or the not to exceed amount of ___________________ Dollars ($___________________), [based upon unit prices set forth in Exhibit F] (the “Compensation”).

The Compensation includes all of the Contractor’s profit, costs (direct and indirect), overhead, and reimbursable expenses which the Contractor may incur in performing the Work. The Contractor is not entitled to any compensation, beyond the Compensation, for performing the Work. In the event the Authority desires to purchase goods from the Contractor which are not included within the not-to-exceed Compensation amount for this Contract, the Contractor may procure those goods only after the Authority signs and issues its standard form of Purchase Order.

A. Progress Payments. The Contractor shall submit monthly invoices to the Authority’s Finance Department for progress payments for portions of the Work satisfactorily performed during each preceding month during the term of the Contract. The Authority’s approval of invoices shall be a condition of payment. The Authority shall pay approved invoices, or parts thereof, within thirty (30) days after submittal. All invoices shall be addressed to the Authority as follows: “E-470 Public Highway Authority, 22470 E. Stephen D. Hogan Parkway, Suite 100, Aurora, Colorado 80018 ATTN: FINANCE DEPARTMENT” or sent via electronic mail to accountspayable@e-470.com with the Contract Number in the subject line.

B. Requirements for Payment.

1. Invoices. The Contractor’s invoices shall be in a format acceptable to the Authority, shall be supported by cost information in such detail as may be required by the Authority, and shall be sufficient to substantiate all items for a proper audit and post audit thereof.

2. Invoice Documentation. If and to the extent requested by the

Authority, the Contractor shall submit with each invoice a progress report describing the Work performed, results achieved, and the status of deliverables and a certification that the Contractor is current in payment of all employees, subcontractors, and vendors and, if not current, a description of the non-current items and reasons for such.

C. Unsatisfactory Invoices or Work. The Authority may return to the

Contractor for revision unsatisfactory invoices and may withhold payment thereof. The Authority may withhold payment for Work which is not completed as scheduled, or which is completed unsatisfactorily, until completed satisfactorily and may deny payment for such Work upon termination of the Contract.

D. Appropriations. Further, in compliance with Section 24-91-103.6, Colorado

Revised Statutes, the following statements are included in this Contract:

1. The Authority has appropriated an amount of money equal to or in excess of the contract price, for the Work to be performed under this Contract.

mailto:accountspayable@e-470.com

2. The Authority is prohibited from issuing any change order or other form of order or directive requiring additional compensable work to be performed by the Contractor, if such directive causes the aggregate amount under the Contract to exceed the amount appropriated for the original Contract, unless the Contractor is given written assurance by the Authority that lawful appropriations to cover the costs of the additional work have been made and the appropriations are available prior to performance of the additional work or unless such work is covered under a remedy-granting provision in the Contract. “Remedy-granting provision” means any Contract clause which permits additional compensation in the event that a specific contingency or event occurs. Such term shall include, but not be limited to, change clauses, differing site conditions clauses, variation in quantities clauses, and termination not-for-cause clauses.

3. Any form of order or directive issued by the Authority requiring additional compensable work to be performed by the Contractor shall be deemed to include a clause that requires the Authority to reimburse the Contractor for the Contractor’s costs on a periodic basis for all additional directed work performed until such time as a change order is finalized. Provided, however, that in no instance shall the periodic reimbursement be required before the Contractor has submitted an estimate of cost to the Authority for the additional compensable work to be performed.

E. Payment, Performance, and Warranty Bond. If included as a Contract

Document in Section 1.A.7 above, concurrently with the execution of this Contract, the Contractor shall furnish a Payment, Performance, and Warranty Bond in the form attached hereto as Exhibit E, which bond shall be in a penal sum equal to the nearest integral one hundred dollars in excess of the Contract Compensation amount.

F. Right of Set-off. Without prejudice to any other right or remedy it may have, the Authority reserves the right to set off at any time any amount owing to it by Contractor against any amount payable by the Authority to Contractor under this Contract.

4. TERM OF CONTRACT/START AND COMPLETION OF WORK. The

Contractor shall commence the Work when the Authority gives the Contractor notice to proceed. The Contractor shall complete all Work by November 20, 2025 (the “Completion Date”). The term of this Contract shall commence on the Effective Date and shall terminate on either the Completion Date or the date when the Work has been completely performed to the Authority’s satisfaction, whichever first occurs. Additionally, this Contract may also be terminated by mutual written agreement of the parties or by the exercise of the termination provisions specified in Section 8.

5. CONTRACTOR’S REPRESENTATIONS. In order to induce the Authority to enter into this Contract, the Contractor hereby makes the following representations and warranties to the Authority:

A. Inspections/Work. The Contractor has familiarized itself with the nature and extent of the Contract Documents, the proposed Work, and the locality. To the extent the Contractor deems necessary, the Contractor has inspected the sites and all surrounding locations whereupon it may be called to perform its obligations under this Contract, and is familiar with the requirements of the Work as they relate to the locality and the physical and site conditions and accepts them for such performance.

B. Compliance with the Law. The Contractor will, at its own expense, throughout the term of this Contract, comply with all federal, state, and local laws, statutes, ordinances, codes, guidelines, court ruling and orders of all governmental authorities applicable to services performed by the Contractor under this Contract, including but not limited to employee safety. The Contractor shall procure all permits and licenses, pay all charges, fees, and taxes, and give all notices necessary and incidental to the due and lawful prosecution of the Contract, and all such costs are included within the Compensation amount unless otherwise expressly stated in Exhibit F.

C. Sufficiency of Contract Documents. The Contract Documents are sufficient in scope and detail to indicate and convey understanding of all terms and conditions for performance of the Work and the Contractor has provided the Authority with written notice of all conflicts, errors, or discrepancies that it has discovered in the Contract Documents.

D. Examinations/Investigations/Tests. The Contractor has made or caused to be made examinations, investigations, and tests and studies of such reports and related data as it deems necessary for the performance of Work for the Compensation provided herein and in accordance with the other terms and conditions of the Contract Documents; and no additional examinations, investigations, tests, reports, or similar data are or will be required by the Contractor for such purposes.

E. Correlated Results. The Contractor has correlated the results of all such observations, examinations, investigations, tests, reports, and data with the Contract Documents.

F. Standard of Care. The Contractor has the required authority, ability, experience, licenses (if any), certifications (if any), approvals (if any), permits (if any), insurance, skills, and capacity to, and shall, perform the Work in a manner consistent with all provisions of this Contract. The Contractor shall perform the Work in accordance with the highest standards of care, skill, and diligence in Contractor’s industry, trade, or profession and in the sequence and manner set forth in this Contract. Further, all employees of the Contractor employed in performing any portion of the Work have the ability, experience, licenses (if any), certifications (if any), approvals (if any), permits (if any), insurance, skills, and capacity required to perform the Work assigned to them.

G. Performance During Term. The Contractor will begin providing the Work when the Authority gives the Contractor notice to proceed and will thereafter continually and diligently perform the Work throughout the Term of this Contract.

H. Personnel. The Contractor represents that all of its personnel who will perform any Work under this Contract have received the information, instruction and training required to provide such Work, including training to prevent harm to such personnel, residence and members of the public who may be in the vicinity. The Contractor represents that the Contractor and its personnel have all licenses required by applicable law to perform the Work required by this Contract and will, at Contractor’s expense, maintain such licenses throughout the term of this Contract.

I. Compensation. The Contractor shall perform and complete the Work for the Compensation as provided in Section 3 of this Contract.

J. Authorized Execution. The execution, delivery and performance of this Contract and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action and do not and will not require any further consent or approval of the board of directors or any shareholders of the Contractor or any other person which has not been obtained.

K. Enforcement. This Contract constitutes the legal, valid, and binding obligation of the Contractor and is enforceable in accordance with its terms.

L. Good Standing. The Contractor is validly organized and exists in good standing under the laws of the State of __________________ and has all requisite power to own its properties and assets and to carry on its business as now conducted or proposed to be conducted and it is duly qualified, registered to do business, and in good standing in the State of Colorado.

6. INDEMNIFICATION.

A. Subject to the provisions of Section 13-50.5-102(8), Colorado Revised

Statutes, to the extent applicable to this Contract, the Contractor shall indemnify, defend, and hold harmless the Authority and each of the governmental entities that is now or may in the future become a party to the Authority’s Establishing Contract, and each of its directors, employees, agents, and consultants, from and against any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, and expenses of any nature (including, but not limited to, reasonable attorneys’ fees, investigative and repair costs, expert and consultant fees, litigation costs and other expenses incurred in the defense, lost profits, and insurance deductibles), and liabilities, of, by, or with respect to third parties (“Any Claims”) to the extent they arise from or may be alleged to arise, directly or indirectly, in whole or in part, from the intentional or negligent acts or omissions of the Contractor or any of its subcontractors, material suppliers, agents, representatives, or employees, or the agents, representatives, or employees of any subcontractors or material suppliers (collectively the “Contractor/Related Parties”), in connection with this Contract (or a breach thereof) and/or the Contractor’s Work hereunder whether arising before or after completion of performance of the Work, including, without limitation, Any Claims which cause or allow to continue a condition or event which deprives the Authority or any of its directors or employees of its sovereign immunity under the Colorado Governmental Immunity Act, Sections 24-10-101, et seq., Colorado Revised Statutes. Provided, however, that the Contractor shall not be liable for any claim, loss, damage, injury, or liability arising out of the negligence, willful acts, or intentional torts of the Authority, its directors, employees, agents, and consultants.

B. The obligations of the indemnifications extended by the Contractor to the

Authority under this Section shall survive termination or expiration of this Contract.

C. The Contractor will promptly defend any action or actions filed in connection with Any Claims and will pay all judgments, costs, and expenses, including legal costs and attorneys’ fees incurred in connection with Any Claim. The Authority may protect its interest in defending against Any Claims by selecting its own counsel with legal costs and attorneys’ fees paid for by the Contractor. The Contractor’s defense, indemnification, and insurance obligations shall be to the fullest extent permitted by law and nothing in this Contract shall be construed as requiring the Contractor to defend in litigation, indemnify, or insure the Authority against liability for damage arising out of the death or bodily injury to persons or damage to property caused by the negligence or fault of the Authority or any third party under the control or supervision of the Authority.

D. To the extent the terms of Section 13-50.5-102(8), Colorado Revised Statutes, are applicable to this Contract, the Contractor and the Authority hereby agree for the purposes of this Section that: (i) “the degree or percentage of negligence or fault attributable” to the Contractor/Related Parties as used in Section 13-50.5-102(8)(a), Colorado Revised Statutes, shall be conclusively determined by a trial court at the state level and (ii) the term “adjudication” used in Section 13-50.5-102(8)(c), Colorado Revised Statutes, shall mean a trial court order at the state level.

E. Any insurance coverage requirements or limitations on damages specified in this Contract in no way lessen or limit the obligations of the Contractor under the terms of this Section. The Contractor shall obtain, at the Contractor’s own expense, additional insurance, if any, required to satisfy the terms of this Section.

7. WARRANTIES FOR THE WORK.

A. The Contractor’s warranties in respect of the Work are as follows: the

Contractor warrants to the Authority that the Work shall be fit for its intended purposes;

that materials and equipment furnished under this Contract shall be of good quality and new and that all Work shall be free from defects; and that all Work shall meet all of the requirements of this Contract (the “Warranties”). The Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment.

B. The Warranties shall commence on the date all punch list items have been corrected and the Authority has acknowledged final acceptance. Notwithstanding the foregoing provisions of this Section, if this Contract is terminated prior to completion of the Work, the Warranties in respect of all Work performed under this Contract by the Contractor prior to such termination shall be deemed to commence on the date immediately preceding the effective date of such termination.

C. If at any time within one (1) year after the date on which the Warranties commenced (the “Warranty Period”), any portion of the Work is found to be not in accordance with the Warranties, the Contractor shall correct it, or direct its subcontractor to correct it, in the manner and time-frame provided in the written notice from the Authority to do so.

D. Any Work not conforming to the Warranties, including substitutions not properly approved and authorized, shall be considered defective and may be rejected by the Authority.

E. The Contractor shall promptly correct any Work rejected by the Authority for failing to conform to the Warranties. The Contractor shall bear all costs of correcting such rejected Work, including additional testing and inspections and compensation for the Authority’s expenses made necessary thereby. If the Contractor fails to take action to correct rejected Work, fails to use diligence in completing such corrections, or if the Contractor has attempted to correct the rejected Work but been unable to do so, the Authority may, in addition to any other rights and remedies available at law or in equity, elect to retain a third party to remedy the nonconformance at the Contractor’s expense or remedy the nonconformance with the Authority’s personnel at Contractor’s expense.

F. The Contractor shall obtain from all subcontractors or vendors and cause to be extended to the Authority prudent representations, warranties, guarantees, and obligations with respect to design, materials, workmanship, equipment, tools, and supplies furnished by such subcontractors or vendors. All representations, warranties, guarantees, and obligations of subcontractors or vendors shall be written so as to: (i) survive all the Authority and the Contractor inspections, tests, and approvals; and (ii) run directly to and be enforceable by the Authority, its successors, and assigns. The Contractor shall deliver to the Authority duly executed copies of all agreements containing such representations, warranties, guarantees, and obligations immediately upon their execution. The Contractor shall assign to the Authority, at no additional cost, all of the Contractor’s rights and interest in all extended warranties which were received by the Contractor which exceed the applicable Warranties. Such subcontractor/vendor warranties shall not in any way derogate the Contractor’s own representations and warranties (including the Warranties) or the Contractor’s other obligations with respect to all of the Work.

G. Upon receipt from the Authority of a notice of failure of any of the Work to satisfy any subcontractor or vendor warranty during the Warranty Period, the Contractor shall be responsible for enforcing or performing any such subcontractor or vendor warranty. During the Warranty Period, the cost of any equipment, material, labor, or shipping shall be for the account of the Contractor if such cost is covered by such a Warranty and the Contractor shall be required to replace or repair nonconforming Work, equipment, material, or workmanship furnished by subcontractors or vendors.

H. Commencing on the expiration of the Warranty Period, the Authority may enforce subcontractor or vendor warranties, but the Contractor shall provide reasonable assistance to the Authority in enforcing such representations, warranties, and guarantees, when and as reasonably requested by the Authority.

8. TERMINATION.

A. Types of Termination.

1. Events of Default and Termination for Cause. The Contractor shall be immediately in default hereunder (an “Event of Default”) upon the occurrence of any of the events described below:

a. Any breach of the terms and conditions of this Contract.

b. Failure to perform the Work under this Contract, or significant delay or discontinuance of performance of the Work.

c. Lack of financial responsibility (including failure to obtain and maintain insurance) for loss or damage to the Authority or its property.

d. Dishonesty, embezzlement, or false reporting of any material financial information, including, but not limited to, invoices.

e. Insolvency, bankruptcy, or commission of any act of bankruptcy or insolvency; or assignment for the benefit of creditors.

f. Any attempt by the Contractor to assign its performance of this

Contract without the consent required by Section 13.

g. Termination of any subcontract for any substantial Work without the prior written consent of the Authority.

In addition to any other rights provided herein, upon an Event of Default, the

Authority shall have the right in its sole discretion to immediately terminate this Contract and further performance of the Work, in whole or in part, by delivery to the Contractor of written notice of termination specifying the extent of termination and the effective date of termination.

2. Termination for Convenience. In addition to any other rights provided herein, the Authority shall have the right in its sole discretion to terminate, upon thirty (30) days’ advance notice, for convenience, this Contract and further performance of the Work, in whole or in part, by delivery to the Contractor of written notice of termination specifying the extent of termination and the effective date of termination.

B. Any Other Remedies Allowed by Law. The Authority shall be entitled to any other remedies allowed by law in addition to the remedies provided in the Contract Documents, including this Section.

C. Payment and Liabilities Upon Termination.

1. Termination for Cause. If an Event of Default has occurred, the Contractor shall be liable to the Authority for any actual damages for losses, including, but not limited to, any and all costs and expenses reasonably incurred by the Authority or any party acting on the Authority’s behalf in completing the Work or having the Work completed (excluding changes in the Work by the Authority following such Event of Default). The Authority shall determine the total cost of the Work satisfactorily performed by the Contractor prior to the effective date of termination for cause. All reasonable damages, losses, costs, and charges incurred by the Authority, including attorney’s fees and costs, relating to obtaining and mobilizing another contractor, of completing the Work, and of retaining another contractor’s acceptance of full responsibility for all obligations of the Contractor under this Contract shall be deducted from any monies due or which may become due to the Contractor. The Authority shall determine the total amount due and shall notify the Contractor in writing of the amount the Contractor owes the Authority or the amount the Authority owes the Contractor.

2. Termination for Convenience. After termination for convenience, the

Contractor shall submit a final termination settlement invoice to the Authority in a form and with a certification prescribed by the Authority. The Contractor shall submit the invoice promptly, but no later than thirty (30) days from the effective date of termination, unless extended in writing by the Authority upon written request of the Contractor within such thirty-day period. If the Contractor fails to submit the invoice within the time allowed, the Authority’s payment obligations under this Contract shall be deemed satisfied and no further payment by the Authority to the Contractor shall be made.

D. Contractor’s Obligations Upon Termination. After receipt of notice of termination, for cause or for convenience, and unless otherwise directed by the Authority, the Contractor shall immediately proceed as follows:

1. Stop work on the Work as specified in the notice of termination.

2. Take any action that may be necessary, or that the Authority may direct, for the protection and preservation of the Work and property related to this Contract that is in the possession of the Contractor and in which the Authority has or may acquire an interest.

3. Transfer title and deliver to the Authority, as specified in the termination notice, such items which, if the Work had been completed, would have been furnished to the Authority.

4. Settle all outstanding liabilities and all claims arising out of commitments for procurement of materials, supplies, equipment, and the like for the Work and commitments to subcontractors and vendors.

5. Make any and all cost records available to the Authority at its request.

Termination of the Contract or any potion thereof shall not relieve the Contractor of its responsibilities under the Contract for the portion of the Work completed, nor shall it relieve the surety on the Payment, Performance, and/or Warranty Bond(s), if any, of its obligation for and concerning any claims arising out of the Work performed.

9. OWNERSHIP OF MATERIALS AND RISK OF LOSS; MECHANICS’ LIENS.

A. Ownership of Materials and Risk of Loss. The Authority shall be deemed the owner of all materials brought onto the site of the Work and/or otherwise incorporated into the Work at such time as the Authority has paid for those materials, and shall be deemed the owner of all materials paid for by the Authority regardless of whether those materials were brought onto the site of the Work and/or otherwise incorporated into the Work, unless the Authority rejects such materials in writing. Until final acceptance, the risk of loss or damage to the Work shall reside with the Contractor.

B. Mechanics’ Liens. The Contractor acknowledges that the Work provided to the Authority as a political subdivision of the State of Colorado is not subject to Sections 38-22-101 et seq., Colorado Revised Statutes (“General Mechanics’ Liens”). Nevertheless, to the extent that any portion of the Work, the underlying property, or the improvements thereon, is/are subject to the assertion of a mechanic’s lien under the General Mechanic’s Liens statute, then the Contractor hereby forever waives and releases any and all rights, which may now or heretofore exist or accrue, to record a lien thereon for any work or services performed, materials or equipment furnished, or labor supplied, regardless of whether such services, work, materials, equipment, or labor were required by the Contract Documents, to the maximum extent permitted by law. The Contractor further agrees that all debts owed by the Contractor to any third party relating to the goods or services covered by this waiver of lien rights have been paid or will be timely paid. Apart from their right to timely and properly assert claims against the Payment, Performance, and Warranty Bond or under Section 38-26-106, Colorado Revised Statutes, as applicable, the sole remedy of the Contractor’s subcontractors and suppliers, and any other person, as defined in Section 2-4-401(8), Colorado Revised Statutes, that has furnished labor, materials, sustenance, or other supplies used or consumed by the Contractor or his or her subcontractor in or about the performance of the Work contracted to be done or that supplies laborers, rental machinery, tools, or equipment to the extent used in the prosecution of the Work whose claim therefor has not been paid by the Contractor or the subcontractor, as against the Authority, the Work, the underlying property, or the improvements thereon, shall be to file a verified statement of claim before the time of final settlement pursuant to Section 38-26- 107, Colorado Revised Statutes, as applicable. No subcontractor, laborer, supplier, nor any other person for whom the Contractor is responsible in connection with this Contract shall have the right to lien the Work or the property underlying the Work and any such rights are hereby expressly waived. The Contractor agrees to require each of its subcontractors and suppliers (at all tiers) to expressly incorporate this Section of the Contract into their respective subcontracts and/or purchase orders.

The Contractor will (i) make timely payments to the Contractor’s employees, subcontractors and/or suppliers, and (ii) be responsible for satisfaction of any liens and encumbrances which are filed or asserted against the Authority and/or its property, which liens result from the Work performed by the Contractor under this Contract. In the event that any subcontractor, laborer, supplier, or any other person for whom the Contractor is responsible in connection with this Contract records a lien against the Work or the property underlying the Work, any such lien rights being expressly waived pursuant to this Section, then the Contractor shall indemnify, save harmless, and defend the Authority and each of the governmental entities that is now or may in the future become a party to the Authority’s Establishing Contract, and each of its directors, employees, agents, and consultants, from and against any and all claims, demands, suits, actions, proceedings, judgments, losses, damages, injuries, penalties, costs, and expenses (including reasonable attorneys’ fees), and liabilities, to the extent arising directly or indirectly in any manner whatsoever out of such lien.

If any lien is filed claiming by, through or under the Contractor or the Work performed by the Contractor, the Contractor will cause such lien to be discharged or bonded within ten (10) days after its filing. If the Contractor fails to cause such lien to be discharged or bonded within such ten (10) day period, the Authority, in addition to any other available remedy, may bond or discharge the lien and, at the Authority’s discretion, deduct its costs incurred, including attorneys’ fees and interest at the rate of twelve (12%) percent per annum from the dates incurred, from any payments due the Contractor or invoice the Contractor for the amounts paid. The provisions of this Section are intended to comply with the provisions of Section 13-50.5-102(8), Colorado Revised Statutes, and remain subject to the limitations set forth therein.

10. WORK PRODUCT. All work product of the Contractor prepared pursuant to this Contract, including, but not limited to, all software, research, studies, data, photographs, negatives, models, maps, plans, drawings, surveys, materials, specifications, reports, electronic files, and other finished or unfinished documents, in whatever form, shall remain the property of the Authority under all circumstances, whether or not the Work is completed. When requested, all work product shall be delivered to the Authority in a format compatible to the Authority’s computer applications. All work product shall be provided to the Authority at the time of completion of any of the discrete tasks specified in the Work or at the time of termination of this Contract, whichever event first occurs, and shall be provided to the Authority’s successor, or to any subsequent owners of the Work, only with the Authority’s express permission. The Contractor shall maintain copies on file of any such work product involved in the Work for five (5) years, shall make them available for the Authority’s use, and shall provide such copies to the Authority, upon request, at commercial printing or reproduction rates. At any time within the five (5) years during which the Contractor must retain copies of all work product involved in the Work, the Authority may obtain copies of the Contractor’s work product by paying printing or reproduction costs as set forth above.

11. ACCESS TO RECORDS. The Contractor (and any subcontractor) shall make, keep, maintain, and permit the Authority and its designated representatives, during normal business hours, to access a complete file of all books, records, documents, communications, notes accounts, and other material pertaining to the Work for the purpose of investigation, audit, and copying to ascertain compliance with, or to detect violation of, any applicable federal, state, or local law or regulation or with the terms of the Contract, or to evaluate performance under the Contract. All records or information obtained in this manner shall be used only for the purpose described herein, except as otherwise authorized by law. If requested by the Authority, the Contractor shall provide, at no additional cost to the Authority, a complete statement of the origin, composition, and manufacture of materials used in the completion of the Work, together with samples for testing for conformance with the Contract Documents.

12. CONTRACTOR’S TRADE SECRETS AND OPEN RECORDS REQUESTS.

A. Application of the Act. The Contractor acknowledges and agrees that all documents in the Authority’s possession, or which the Authority has a right to have in its possession pursuant to this Contract, including documents submitted by the Contractor, are subject to the provisions of the Colorado Open Records Act, Sections 24-72-200.1 et seq., Colorado Revised Statutes, and the Contractor acknowledges that the Authority shall abide by the Colorado Open Records Act, including honoring all proper public records requests made thereunder. The Contractor shall be responsible for all costs incurred in connection with any determinations required to be made by a court, pursuant to the Colorado Open Records Act. The Contractor is advised to contact legal counsel concerning such acts in application of the Colorado Open Records Act to the Contractor.

B. Confidential or Proprietary Materials. If the Contractor deems any document(s) which it submits to the Authority to be confidential, proprietary, or otherwise protected from disclosure under the Colorado Open Records Act, then it shall appropriately label such document(s), and submit such document to the Authority together with a written statement describing the material which is requested to remain protected from disclosure and the justification for such request. This request will either be approved or denied by the Authority; however, the Authority will make a good-faith effort to accommodate all reasonable requests, subject to the provisions of the Colorado Open Records Act.

C. Stakeholder. In the event of litigation concerning the disclosure of any document(s) submitted by the Contractor to the Authority or which the Authority has a right to have in its possession pursuant to this Contract, the Authority’s sole involvement will be as stakeholder retaining the document(s) or having a right thereto until otherwise ordered by the court, and the Contractor shall be fully responsible for otherwise prosecuting or defending any actions concerning the document(s) at its sole expense and risk.

13. ASSIGNMENT. Neither the Authority nor the Contractor may assign this Contract or parts hereof or its rights hereunder without the express written consent of the other party. Any change in control of Contractor resulting from a merger, consolidation, stock transfer or asset sale shall be deemed an assignment or transfer for purposes of this Contract that requires the Authority’s prior written consent.

14. CONSTRUCTION DEFECT. To the extent the Work contemplated herein is to be completed on property other than residential property, the Authority and the Contractor agree to specifically waive all provisions of part 8 of article 20 of title 13, Colorado Revised Statutes, to the extent permitted by law. Notwithstanding the foregoing, the rights and remedies of the Authority provided in this Contract are in addition to and not limited by any rights or remedies afforded by law.

15. RETAINAGE. If this Contract is for an amount in excess of One Hundred Fifty

Thousand Dollars ($150,000.00), the Authority’s payments may be subject to retainage in accordance with Colorado law.

16. SUBCONTRACTORS. To the extent that the Contractor engages subcontractors to perform, or otherwise provide support to assist the Contractor to perform, any portion of the Work performed under this Contract then: (a) the Contractor shall remain responsible for the services, tasks, functions, and responsibilities performed by such subcontractors to the same extent as if such services, tasks, functions, and responsibilities were performed directly by the Contractor and, for purposes of this Contract, such Work shall be deemed Work performed by the Contractor;

(b) the Contractor shall maintain a current and accurate list of all subcontractors and shall provide such list to the Authority upon the Authority’s request; (c) the Contractor shall not share or disclose, or engage a subcontractor to collect, access, store, process, transmit, receive, or otherwise possess any Confidential Information (as defined in Exhibit G), unless and until such subcontractor has agreed in writing to protect such Confidential Information in a manner equivalent to that required of the Contractor under this Contract, and then only on a need-to-know basis; (d) the Contractor shall cause such subcontractors to comply with the obligations and restrictions associated with the services, tasks, functions, and responsibilities performed by such subcontractors that are applicable to the Contractor under this Contract; and (e) the Contractor shall obtain from each subcontractor such evidence, information, and documentation as is reasonably necessary to demonstrate and confirm the subcontractor’s compliance with this Contract, and shall provide such evidence, information, and documentation to the Authority upon request.

17. CONFLICTS OF INTEREST. The Contractor shall not engage in any business or personal activities or practices or maintain any relationships which conflict in any way with the full performance of the Contractor’s obligations under this Contract. The Contractor acknowledges that with respect to this Contract, even the appearance of a conflict of interest is harmful to the Authority’s interests. Absent the Authority’s written approval, the Contractor shall refrain from any practices, activities, or relationships that are in conflict or reasonably appear to be in conflict with the full performance of the Contractor’s obligations under this Contract.

18. MISCELLANEOUS PROVISIONS.

A. Independent Contractor. The Contractor is an independent contractor and nothing herein contained shall constitute or designate the Contractor or any of its employees or agents as employees or agents of the Authority. The Authority is concerned only with the results to be obtained. AS AN INDEPENDENT CONTRACTOR, THE

CONTRACTOR ACKNOWLEDGES AND AGREES, PURSUANT TO SECTION

8-40-202(2)(b)(IV), C.R.S., THAT IT IS NOT ENTITLED TO WORKERS'

COMPENSATION BENEFITS AND THAT THE CONTRACTOR, AS AN

INDEPENDENT CONTRACTOR, IS OBLIGATED TO PAY FEDERAL AND

STATE INCOME TAX ON ANY MONEYS EARNED PURSUANT TO THIS

CONTRACT RELATIONSHIP.

B. Time is of the Essence. The performance of the Work of the Contractor shall be undertaken and completed in accordance with this Contract and in such sequence as to assure its expeditious completion in light of the purposes of this Contract. It is agreed that time is of the essence in the performance of this Contract.

C. Equal Opportunity Employment. It is the policy of the Authority to provide equal opportunity through employment, promotion, and other contracting opportunities, without regard to race, color, religion, sex, or national origin. The Contractor shall abide by this policy.

D. Payment of Tolls. The Contractor understands and agrees that the Contractor, its subcontractors, vendors, and employees shall pay all tolls incurred by them during the term of this Contract.

E. Notices. Any notices or other communications required or permitted by this

Contract or by law to be served on, given to, or delivered to either party hereto, by the other party shall be in writing and shall be deemed duly served, given, or delivered when:

(a) personally delivered to the party to whom it is addressed;

(b) sent by electronic mail to the individual designated to receive notice at the e-mail address below, provided that (1) the message includes a cross-reference to this Section of the Contract and states that it serves as notice pursuant to this Contract, and (2) notice is also provided in a timely manner by another method of physical delivery provided for in this Section;

(c) sent by United States certified mail, postage prepaid, return receipt requested (“US Mail”); or

(d) placed in the custody of a nationally recognized overnight carrier for next day delivery (“Carrier”).

Such notice will be deemed given (i) when received, if delivered personally; (ii) if sent by electronic mail and physical delivery in accordance with (b) above, when the sender receives a “delivery receipt” or other response confirming delivery of such electronic mail;

(iii) 4 days after deposit, if sent by US Mail; or (iv) the next business day after deposited with a Carrier during business hours on a business day.

All notices shall be delivered to the following addresses, or such other address as is provided by one party to the other in accordance with this Section:

The Authority: The Contractor:

E-470 Public Highway Authority ________________________ 22470 E. Stephen D. Hogan Parkway ________________________

Suite 100 ________________________ Aurora, CO 80018 ________________________

Attn: Executive Director Attn: ____________________ Email: JDonahue@e-470.com Email: __________________

Either party may change its address for the purpose of this Section by giving written notice of such change to the other party in the manner provided in this Section.

F. Choice of Law. This Contract, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Contract, shall be governed by, and enforced in accordance with, the substantive and procedural laws of the State of Colorado, including its statutes of limitations, without giving effect to any choice of law or conflict of laws rules or provisions (whether of the State of Colorado or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Colorado.

G. Venue and Jurisdiction. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against any other party in any way arising from or relating to this Contract and all contemplated transactions, in any forum other than the Eighteenth Judicial District of Colorado, which forum shall have sole and exclusive jurisdiction over any matters related to this Contract.

H. No Waiver. No waiver of any of the provisions of this Contract shall be deemed to constitute a waiver of any other of the provisions of this Contract, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided herein, nor shall the waiver of any default hereunder be deemed a waiver of any subsequent default hereunder.

I. Governmental Immunity. Nothing in this Contract or in any actions taken by the Authority pursuant to 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, Sections 24-10-101, et seq., Colorado Revised Statutes.

J. No Right or Interest in Authority Assets. The Contractor shall have no right or interest in any of the Authority’s assets, nor any claim or lien with respect thereto, arising out of this Contract or the performance of the Work contemplated herein.

K. Publicity. The Contractor shall not issue any press releases or make any public statement(s) (including without limitation in the form of news releases, advertising or solicitation materials, or blog or social media postings) relating to this Contract or otherwise use the Authority’s trademarks, service marks, trade names, logos domain names, or other indicia of source, affiliation, or sponsorship, in each case, without the prior written consent of the Authority.

L. Survival of Certain Contract Terms. Notwithstanding anything herein to the contrary, the provisions of this Contract that require continued performance, compliance, or mailto:JDonahue@e-470.com effect after the termination hereof shall survive such termination and shall be enforceable by the Authority if the Contractor fails to perform or comply as required.

M. Binding Contract. This Contract shall inure to and be binding on the heirs, executors, administrators, successors, and assigns of the parties hereto.

N. Entire Contract. This Contract constitutes the entire agreement between the parties and sets forth the rights, duties, and obligations of each to the other as of this date.

Any prior agreements, promises, negotiations, or representations not expressly set forth in this Contract are of no force and effect.

O. Severability. If any term or provision of this Contract is determined by the

Eighteenth Judicial District of Colorado or any appellate court with competent jurisdiction to be invalid, illegal, or unenforceable under the laws governing this Contract, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Contract;

provided, however, that if any term or provision of this Contract which is material to allowing the parties to achieve the benefit of the bargain originally negotiated between the parties is determined by the Eighteenth Judicial District of Colorado or any appellate court with competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this Contract shall be unenforceable.

P. Rules of Construction. For purposes of this Contract, except as otherwise expressly provided or unless the context clearly requires otherwise (i) the terms defined herein include the plural as well as the singular and include any words based upon the root of such defined terms; (ii) words importing gender include all genders; (iii) the words “include,” “includes,” and “including” mean inclusion without limitation; (iv) the word “or” is not exclusive; (v) the words “herein,” “hereof,” and “hereunder,” and other words of similar import, refer to this Contract as a whole and not to any particular Section or other subdivision; and (vi) the headings in the Contract are for convenience only and shall not affect the interpretation of this Contract. Unless the context otherwise requires, reference herein to: (A) Sections and orders refer to the Sections of this Contract and orders made pursuant to this Contract, as applicable; (B) an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (C) a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulation promulgated thereunder. This Contract shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

Q. Counterpart Execution. This Contract may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.

R. Electronic Signatures. The parties consent to the use of electronic signatures pursuant to the…