Exhibit F - UPR FPD FS and HC - Attachment 1 to AIA A101-2017.pdf

ATTACHMENT 1 TO AIA DOCUMENT A101-2017

STANDARD FORM OF AGREEMENT

BETWEEN OWNER AND CONTRACTOR

The following Attachment modifies the AIA Document A101-2017, Standard Form of Agreement between Owner and Contractor, and any Exhibits attached thereto (collectively, the “Agreement”). Where a portion of the Contract is modified or deleted by this Attachment, the unaltered portions of the Contract shall remain in effect.

The terms used in this Attachment have the meanings stated or as specifically defined in the Contract. Additional terms used herein have the meanings stated below, which are applicable to both the singular and plural thereof.

In the event any provision herein conflicts or creates an ambiguity with a provision of any other Contract Document, then the provisions of this Attachment shall govern and control such conflicting or ambiguous provision, subject to any subsequent Modification.

The following provisions are incorporated into § 8.7 of the Agreement:

8.7.A-1 Final Completion. The Contractor shall achieve Final Completion of the Work not later than thirty (30) days from the date of Substantial Completion. The Work shall be deemed to have achieved “Final Completion” as of the date that the Contractor submits both (i) a notice that the Work is ready for final inspection and acceptance and (ii) a final Application for Payment. In the event that the Owner rejects either of such documents, then the date of Final Completion shall be the date that the Contractor has submitted both documents in (subsequently) approved form.

8.7.A-2 Retainage. In accordance with Section 24-91-103, C.R.S., the amount of the retainage in all instances shall be five percent (5%). Notwithstanding any other provision contained in the Contract Documents to the contrary, such retainage of the Contract Sum shall be held by the Owner until the Project is completed and finally accepted by the Owner in accordance with the provisions hereof. The Owner shall pay the full amount of such retainage to the Contractor within sixty (60) days of Final Completion and acceptance, except to the extent of any claims filed pursuant to Section 38-26-107, C.R.S. Any release of retainage to the Contractor or a Consultant, Contractor, or subcontractor prior to final payment shall, among other matters, require written approval from the surety furnishing bonds pursuant to and under the terms of this Contract.

8.7.A-3 Final Payment. § 5.2 of the Agreement is deleted in its entirety. Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor in accordance with Section 38-26-107, C.R.S. Accordingly, the Owner shall cause Notice of Final Payment to be delivered to the Owner’s legal media within ten (10) days of acceptance of the Contractor’s (i) notice that the Work is ready for final inspection and acceptance and (ii) final Application for Payment. Owner shall cause final payment to be made within ten (10) days after second publication of such Notice, subject to any verified claims or actions. Final payment shall proceed as follows:

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Owner shall set the date and time for final settlement and advertise the same by two publications of notice thereof, the last publication appearing at least ten (10) days prior to the time of final settlement. Final payment and settlement will be made on the date of final settlement as advertised, or as soon thereafter as practicable. If any claim for unpaid labor, materials, supplies or equipment is filed with the Owner by a subcontractor or supplier before payment in full of all sums due to the Contractor, the Owner shall withhold from the Contractor an amount equal to 150% of said claim unless otherwise secured to ensure the payment of such claim, until the same shall have been paid or withdrawn, such payment or withdrawal to be evidenced by filing with the Owner a receipt in full or an order for withdrawal signed by the claimant or its duly authorized agent or assignee. However, as provided by statute, such funds shall not be withheld longer than ninety (90) days following the date fixed for final settlement with the Contractor as set forth in the published notice, unless a legal action has been commenced within that time to enforce such claim and a notice of lis pendens has been filed with the Owner. At the expiration of such ninety (90) day period, the Owner shall pay the Contractor all funds due under the Contract Documents that are not subject to such action and shall retain thereafter, subject to the final outcome thereof, only sufficient funds to ensure the payment of such judgment as may result from such action. If any claim of a subcontractor or supplier for labor, materials, supplies or equipment remains unsatisfied after all payments are made by the Owner to the Contractor, the Contractor shall refund to the Owner all sums which the latter may for any reason be legally compelled to pay to satisfy such claim, including all costs and attorney’s fees incurred by the Owner as a result of the Contractor’s failure to pay.

8.7.A-4 Intentionally Deleted.

8.7.A-5 Termination or Suspension. Owner may terminate the Contract for Owner’s convenience in accordance with Article 14 of AIA Document A201-2017. There shall be no separate termination fee for Owner’s termination for convenience and Contractor waives all claims for damages, including loss of anticipated overhead recovery or profits, on account of such termination. The payments provided for under Article 14 of the General Conditions shall be the Contractor’s sole rights and remedy in the event of termination for convenience.

Provisions of the Contract Documents that by their nature survive final acceptance of the Work shall remain in full force and effect after such termination to the extent therein provided.

8.7.A-6 Appropriations. The Owner represents that it has appropriated money equal to or in excess of the Contract Sum for the Work.

8.7.A-7 Confidential Information. Contractor understands and acknowledges that the Owner, as a local governmental entity, is subject to the Colorado Public Records Laws, Section 24, Article 72, C.R.S., including, but not limited to Part 2 of such laws known as the Colorado Open Records Act (“CORA”), and all documents in the Owner’s possession, including but not limited to any Instruments of Service, are potentially subject to disclosure under CORA. Owner shall have no liability for the release of such information it reasonably determines that it is required to release pursuant to CORA.

8.7.A-8 Liquidated Damages. If Contractor fails to perform the Work and complete the Project by the Contract Time, Contractor shall pay to Owner as liquidated damages (and not as a penalty) for ordinary and general damages and inconvenience (exclusive of any special damages such as, by way of example and not limitation, any liabilities to third parties) the sum of:

Late Substantial Completion: $1,500 per day

Late Final Completion: $500 per day

These liquidated damages are based upon Owner’s evaluation of its likely losses in the event the Contract Time are not met. The liquidated damages herein established are agreed to by Contractor after full discussion of the implication of this Section. The failure to perform the Work and complete the Project by the Contract Time will cause significant damage to Owner. Owner and Contractor agree that such actual damages caused by Contractor’s failure to meet the Contract Time would reasonably likely include, without limitation, the costs for additional construction management and other Owner representative/employee time; the costs for third-party consultants’ time; inefficiency and inconvenience damages to Owner’s operations; damages to Owner’s reputation with third-parties (including governmental entities with regulatory jurisdiction over Owner), as well as other potential actual damages to Owner reasonably associated with the subject matter of this Agreement. Contractor acknowledges that the liquidated damages established herein are a reasonable pre-estimate of the detriment Owner will suffer in the event Contractor fails to perform the Work and complete the Project by the Contract Time and, after a full discussion of the implications of this section, further acknowledges that the above estimates are reasonable of presumed actual damages given it would be impractical and difficult to precisely ascertain the actual damages that Owner might suffer by reason of Contractor’s failure to perform the Work and complete the Project by the Contract Time. The liquidated damages established herein are intended to be and are cumulative and shall be in addition to any other remedy enforceable at law under this Agreement.

8.7.A.-10 Performance, Payment and Warranty Bond. Prior to commencement of performance, Contractor shall provide to Owner a general performance, payment and warranty bond executed by Contractor and an acceptable corporate surety, or collateral approved by Owner, in the full amount of the Contract Sum, including provisions for any adjustment of the Contract Sum in accordance with the terms of this Agreement. Such bond shall expressly guarantee: (i) faithful performance of this Agreement and completion of the Project in complete compliance with the Contract Documents; (ii) repair and replacement, if required, or payment of the costs of all defective equipment, materials and work performed on the Project or as provided under any warranty, guarantee or other Contract Document for the full warranty and guarantee period; and

(iii) payment to all persons performing labor and furnishing materials, supplies, tools and equipment in connection with the Project. Contractor shall obtain such bond on Owner’s behalf separate and apart from any similar bond or surety or warranty agreement entered into independently between Owner and any manufacturer or supplier. Owner may, in its discretion, require that the bond guaranteeing payment to all persons performing labor and furnishing materials, supplies, tools and equipment in connection with the Project be separate from the bond guaranteeing performance and warranting the work. Notwithstanding anything contained within the bonds to the contrary, such bonds are required, in part, by and shall comply with the minimum requirements of Section 38-26-106, C.R.S.

8.7.A.-11 No Waiver of Governmental Immunity. Owner is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities, defenses and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to the Owner or its officers or employees.

8.7.A.-12 Counterparts, Electronic Signatures and Electronic Records. The Agreement, and any of the Contract Documents, may be executed in multiple counterparts, each of which shall be an original, but all of which, together, shall constitute one and the same instrument. The Parties consent to the use of electronic signatures and agree that the transaction may be conducted electronically pursuant to the Uniform Electronic Transactions Act, Section 24-71.3-101, et seq., C.R.S.