Facilities Contract_Median Landscaping Services_RFB 25-009_SAMPLE_7.1.2025.pdf

TRADE CONTRACTOR AGREEMENT

THIS TRADE CONTRACTOR AGREEMENT (this “Agreement”) is made this ____________________, by and between the Town of Parker, Colorado, a Colorado home rule municipality (the "Town") and ___________________________________, a _____________ ("Contractor").

RECITALS

A. The Town distributed a Request for Bids, Number 25-009 for Median Landscaping, as more fully specified in the Contract Documents (the “RFB”). The RFB documents and all addenda and attachments, including all plans and specifications shall be collectively referred to as the “Bid Package.”

B. The Contractor submitted the proposal determined to be the most advantageous to the Town and the Contractor is capable and willing to perform the work in accordance with the terms and conditions of this Agreement.

AGREEMENT

NOW, THEREFORE, for and in consideration of the mutual covenants, agreements, conditions and undertakings hereinafter specified, the Town and Contractor agree as follows:

1. CONTRACT DOCUMENTS. The “Contract Documents,” which comprise the entire agreement and contract between the Town and Contractor, consist of:

(a) This Agreement;

(b) The Scope of Work, attached hereto as Exhibit A;

(c) The Town’s Insurance Requirements, attached hereto as Exhibit B;

(d) The RFB;

(e) The Bid Package;

(f) The Contractor’s Bid Sheet dated __________;

(g) Notice to Proceed;

(h) General conditions, special conditions, measurement, payment, and technical specifications and drawings; and

(i) Any modifications, change orders or other such revisions properly authorized after the execution of this Agreement.

The Contract Documents are incorporated by reference as though set forth in full herein, whether or not attached hereto, and shall form an integral part of this Agreement. If there is any conflict between this Agreement and the other Contract Documents, this Agreement shall control. Notwithstanding the foregoing, if there is any conflict between this Agreement and a change order properly issued pursuant to this Agreement, the change order shall control.

2. THE WORK.

(a) Scope of Work. Contractor shall furnish all the labor, equipment, materials, and supervision necessary for or incidental to the complete and timely performance of everything described or reasonably implied from the Contract Documents (the “Work”).

The Contractor warrants that it is fully qualified to perform the Work in accordance with the professional standards of the industry and shall perform the Work in a first-class, workmanlike manner to the satisfaction of the Town and in strict accordance with the provisions of the Contract Documents.

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

(c) Access and Inspection. The Town and its representatives shall at all times have access to the Work. The Contractor shall provide proper facilities for access to and for inspection of the Work for the purpose of determining compliance with this Agreement and quality of workmanship and material. All materials, equipment, and supplies used in the performance of the Work shall be subject to adequate inspection and testing in accordance with generally accepted standards. If any portion of the Work is determined to be defective, the Contractor shall bear all costs involved to bring the Work into compliance with the Contract Documents, including without limitation, the cost to replace any materials, to re-perform, or to reconstruct. The Contractor shall remove from the work site all work or materials rejected by the Town for failure to comply with the Contract Documents whether incorporated into the Work or not at no additional cost to the Town.

(d) Site Clean-Up. On a daily basis, the Contractor shall maintain the work site free from accumulation of waste materials or rubbish caused by performance of the Work. The Contractor shall remove all rubbish, tools, construction equipment, machinery, and surplus material from the work site. If the Contractor fails to maintain the work site in an appropriate condition, the Town may, after notice to the Contractor, perform any necessary clean-up and charge the clean-up costs to the Contractor.

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

(f) Use of Premises. Portions of the site beyond areas on which the Work is indicated are not to be disturbed without prior approval of the Town Representative. The Contractor shall conform to site rules and regulations at all times during the performance of the Work. In prosecuting the Work, the Contractor shall take all reasonable measures to minimize the impact of the Work on the Town’s operations. Work may be performed during the Town’s regularly scheduled business hours (subject to the restrictions set forth in this Agreement);

however, the Contractor may work non-standard working hours with prior notification and approval of the Town.

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

(h) Differing Site Conditions.

i. Contractor acknowledges that it has satisfied itself as to the character, quality, and quantity of the surface and subsurface materials or obstacles to be encountered insofar as this information is reasonably ascertainable from an inspection of the site and review of the Contract Documents.

ii. Contractor shall give immediate written notice to the Town Representative if it encounters a “Differing Site Condition,” defined as either:

1. Subsurface or latent physical conditions at the site which differ materially from those indicated in the Contract Documents; or

2. Unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in this Agreement.

iii. Contractor acknowledges that no request for a change order or modification in Agreement Price resulting from a Differing Site Condition shall be allowed unless immediate written notice is provided and the conditions remain undisturbed until the

Town has the opportunity to investigate.

(i) Noise Abatement. At all times through the performance of this Agreement, the Contractor shall be familiar with and comply with all local noise ordinances in the performance of the Work. The Contractor shall not conduct the Work in excess of the permissible decibel levels provided by local noise ordinances. The Contractor shall provide the Town Representative with prior notice of any Work that may result in such excessive noise levels.

The Town shall consider surrounding neighbors and Town customers in determining permissible time and conduct of any Work that may be in excess of local noise ordinances.

(j) Traffic Control. The Contractor shall furnish and maintain all signs, barricades, lights, two-way radios, flaggers, and traffic control personnel as necessary to control traffic and provide for the safety of the public, in accordance with the Colorado Department of Transportation (“CDOT”) specifications/standards, the Manual on Uniform Traffic Control Devices, current edition, and the Federal Highway Administration.

3. AUTHORIZED REPRESENTATIVES. The Town designates ________________ as the “Town Representative.” The Contractor designates _______________ as the “Contractor Representative.” The Town Representative shall also be the “Project Manager.” The Contractor Representative shall have the authority to speak on the Contractor’s behalf with respect to the Work and shall be present at the Work site as necessary to assure the Contractor’s satisfactory performance. The Contractor Representative shall also be responsible for advising the Town Representative of the status of the Work and agrees to take direction only from the Town Representative or his/her/their designee and to comply promptly and fully with the reasonable requests and directives issued by the Town Representative or his/her/their designee from time to time. The Town may change its representative at any time by notice to the Contractor. The Contractor shall not replace the Contractor Representative unless: (a) The Town requests a replacement; or (b) the Contractor terminates the employment of the Contractor Representative and provides a satisfactory substitute. The Town must approve a substitute Contractor Representative, and, if no substitute is acceptable, the Town may terminate this Agreement.

4. AGREEMENT PRICE. The Town has appropriated the money necessary to fund the Work.

The Town shall pay the Contractor in current funds for the satisfactory performance of the Work, subject to any additions and deletions, by written change order, the total sum not to exceed ________________________________________Dollars ($_____________) (the “Agreement Price”) in accordance with the Contractor’s Bid Sheet and in accordance with the schedule set forth in the Contract Documents. Notwithstanding anything to the contrary contained in this Agreement, no change order or other form of directive by the Town requiring additional compensable work to be performed, which causes the aggregate amount payable under this Agreement to exceed the amount appropriated for the Agreement Price, unless the Contractor is given written assurance by the Town that lawful appropriations have been made by the Town to cover the cost of the additional work.

5. TIMES AND METHODS OF PAYMENT.

(a) Payment. Payment shall be made upon Final Acceptance of the Work and satisfactory compliance with the Paragraph titled Final Inspection and Payment.

(b) Records. The Contractor shall maintain complete and accurate records of time spent and materials used for performance of the Work, together with any invoices, time cards, or other supporting data reasonably requested. All records, data and documentation shall be retained by the Contractor for a period of not less than three (3) years after completion of the Work, and shall be subject to review, inspection, and copying by the Town upon reasonable notice.

(c) Incorrect Payments. Incorrect payments to the Contractor due to omission, error, fraud, or defalcation may be recovered from the Contractor by deduction from subsequent payments due the Contractor under this Contract or other contracts between the Town and the Contractor.

(d) Remedies for Nonpayment. If the Town fails to make payments due Contractor within sixty

(60) days after receipt and acceptance of Contractor's invoice, Contractor may, after giving seven (7) days' written notice to the Town, suspend services under this Agreement until Contractor's outstanding undisputed invoices have been paid in full.

6. FINAL ACCEPTANCE AND PAYMENT.

(a) Final Inspection. The Contractor shall notify the Town when the Work is complete and ready for final inspection by means of a letter of completion (the “Letter of Completion”).

Within ten (10) calendar days of the Town’s receipt of the Letter of Completion, the Town Representative shall make a final inspection to determine whether the Work has been completed in accordance with this Agreement and shall submit a written list of any defects to the Contractor (the “Punch List”). The Work may also be inspected by appropriate government officials pursuant to local, state, and federal requirements, if necessary. The Contractor shall promptly correct all Punch List items without additional cost to the Town within ten (10) calendar days after receipt of the Punch List. If any defects cannot be corrected within ten (10) calendar days, the Contractor shall correct such defects promptly and with due diligence. The Contractor shall also deliver to the Town all statements to support sales and use tax refunds and any as-built drawings. The Town shall have the right and authority to determine the acceptability of Contractor's performance for conformity with this Agreement, which determination shall be conclusive and binding upon Contractor.

(b) No Encumbrances Upon the Work. The Work, when presented to the Town for the inspection for Final Acceptance, shall be delivered free from any and all claims or encumbrances whether then in existence or later established by law, statute, ordinance or otherwise. No claim or encumbrance against the Work or the Work site shall be outstanding or otherwise unsettled at the time of Final Acceptance. The right to assert any claim or encumbrance against the Work, after Final Acceptance by the Town and final payment to Contractor, is hereby waived by Contractor on behalf of itself and any subcontractor, laborer, materialman, equipment supplier, manufacturer or other person.

(c) Final Payment. Upon satisfactory completion of the Work, including all Punch List items, the Town Representative will provide the Contractor with a written acceptance of the Work (the “Final Acceptance”). Final Acceptance by the Town is subject to the provisions of this Agreement and C.R.S. § 38-26-107, as amended, and in no manner affects or releases any warranties or guarantees with Contractor or manufacturers of Work equipment. Final payment, including the Retained Amount, shall not be made until the Town Representative has approved the payment.

7. COMMENCEMENT AND COMPLETION OF PERFORMANCE.

(a) Notice to Proceed. Within ten (10) calendar days of receipt of the fully executed Agreement, the Contractor shall provide the Town acceptable bonds (if applicable) and certificates of insurance. The Town shall issue a notice to proceed upon the Town’s approval of the bonds (if applicable) and insurance. No Work shall be performed by the Contractor until a notice to proceed for that project is given by the Town Representative.

The Contractor acknowledges that a notice to proceed will not be issued until the Town has received acceptable certificates of insurance and bonds, if applicable.

(b) Contract Time. Contractor shall commence the Work on or before __________, 2025, or within ten (10) days of receipt of the notice to proceed if no commencement date is provided (the “Start Date”) and shall fulfill all of its obligations on or before _________, 2025 (the “Completion Date” and together with the Start Date, the “Contract Time”). All time limits are of the essence in this Agreement.

(c) Failure to Commence the Work. In the event Contractor fails to commence the Work by the Start Date, the Town may take over the Work and prosecute the same to completion.

The Contract Time is an essential condition of this Agreement. Contractor shall proceed with the Work at such rate of progress to insure full completion within the Contract Time.

It is expressly understood and agreed by and between the Town and Contractor that the Contract Time for the completion of the Work described herein is a reasonable time, taking into consideration the average climatic and economic conditions and other factors prevailing in the locality of the Work during the period such Work is to be performed.

8. CONTRACTOR’S PROJECT SCHEDULE. The Contractor shall, prior to commencement of the Work, submit a completion schedule for the Work (the “Project Schedule”) beginning with receipt of the signed Agreement and concluding with the Completion Date and shall coordinate on a daily basis with the Town’s Project Manager. The Project Schedule shall include all lead time for the order and delivery of equipment for the Work. Schedule updating shall be done on a weekly basis, or more often as necessary (each, a “Schedule Update”). The Schedule Update shall indicate actual progress to date, changes resulting from change orders, and planned changes as necessary to complete the Work in accordance with the Contract

Documents. All costs associated with the development and maintenance of the Project Schedule shall be borne by the Contractor. Acceptance by the Town of the Contractor’s Project Schedule does not relieve the Contractor of any of its responsibility whatsoever for the accuracy or feasibility of the Project Schedule, or of the Contractor’s ability to meet the Contract Time, nor does such acceptance expressly or impliedly warrant, acknowledge, or admit the reasonableness of the activities, duration, or cost loading of the Contractor’s Project Schedule.

9. UNUSUALLY SEVERE WEATHER CONDITIONS.

(a) Assumption that Contract Time is Reasonable. It is expressly understood and agreed, by and between the Contractor and the Town, that the Contract Time for the completion of the Work is a reasonable time, taking into consideration the climatic and economic conditions and other factors prevailing in the locality of the Work. The Contract Time anticipates “Normal” weather and climate conditions in and around the vicinity of the project site during the times of year that the construction will be carried out. Extensions of time based upon weather conditions shall be granted only if the Contractor demonstrates clearly that such conditions were “unusually severe,” would not have been reasonably anticipated, and that such conditions adversely affected the Contractor’s Work and thus required additional time to complete the Work.

(b) Procedure to Determine Time Extensions. The following specifies the procedure for the determination of time extensions for unusually severe weather. The listing below defines the anticipated number of calendar days lost to adverse weather for each month and is based upon National Oceanic and Atmospheric Administration (NOAA) or similar data for the geographic location of the project.

ANTICIPATED CALENDAR DAYS LOST TO ADVERSE WEATHER CONDITIONS:

JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC TOTAL

7 5 4 3 3 2 2 2 2 3 3 7 43 days

(c) Recordation of Adverse Weather Days. The above schedule of anticipated adverse weather will constitute the base line for monthly (or portion thereof) weather time evaluations.

Upon acknowledgement of the notice to proceed and continuing throughout the Agreement on a monthly basis, actual adverse weather days and the impact of adverse weather days that delay the Work will be recorded on a day-to-day basis. It is assumed that the Work will be carried out Mondays through Fridays (holidays excepted); however, non-standard work hours will be required as specified in the Scope of Work and as shown on the Project Schedule. The number of calendar days of delayed Work due to adverse weather or the impact thereof will then be compared to the monthly adverse weather schedule above.

(d) Notification of Adverse Weather Day. An actual adverse weather day must prevent Work for fifty percent (50%) or more of the Contractor’s workday, delay Work critical to the timely completion of the project, and be documented by the Contractor. The Contractor shall notify the Town Representative in writing if work cannot proceed on a given date, within two (2) calendar days of that date. The Town will use the above written notification in determining the number of calendar days for which Work was delayed during each month.

(e) Change Orders. At the end of each month if the number of calendar days for which Work was delayed due to adverse weather exceeds that shown in the above schedule a change order will be executed which increases the Contract Time.

(f) Contractor’s Project Schedule. The Contractor’s Project Schedule must reflect the above-anticipated adverse weather delays on all weather-dependent activities. While extension of time shall be granted for “unusually severe” weather or climate conditions, or the impact thereof, the Town shall make no monetary compensation for any costs to the Contractor arising out of such delays. The Contractor shall comply with the portions of the Contract Documents relating to its Project Schedule and amendments thereto which result from the “unusually severe” weather condition.

10. TIME EXTENSIONS AND COMPENSATION FOR DELAY.

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

(b) Time Extensions. Evaluation of all time extension requests shall be based upon the Project Schedule submitted to the Town by the Contractor prior to commencement of Work for approval (if any).

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

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

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

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

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

Contractor Delay and No-Fault Delay.

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

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

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

(g) Notification of Delay and Recovery. The Contractor shall notify the Town in writing as soon as practicable regarding the nature and starting date of a delay, and the activities affected, but in no case later than seven (7) calendar days after the event giving rise to the delay. In the case of a continuing delay, only one notification shall be necessary. Any claim for an extension of time for delay shall be made in writing to the Town not more than ten

(10) calendar days after the end of the delay; otherwise, such claim shall be waived.

Recovery of delay costs shall be waived unless a request for a change order for delay costs is submitted within ten (10) calendar days after the end of the delay period. The Contractor must also provide a cost and time impact analysis with any request for a change order for delay costs. The cost impact analysis shall contain all direct and indirect labor costs, all material and equipment expenses, any and all documented impact costs related to, and/or occasioned by the Work described therein, as well as all taxes (if applicable under the provisions of this Agreement), insurance and profit. Documentation supporting this cost impact analysis must be submitted at the time of the request for change order for delay costs.

11. TOWN’S RIGHT TO CARRY OUT THE WORK. If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within seven (7) days after receipt of written notice from the Town to commence and continue correction of such default or neglect with diligence and promptness, the Town may, without prejudice to any other remedy it may have, make good such deficiencies. In such case an appropriate change order shall be issued deducting from payments then or thereafter due to Contractor, the cost of correcting such deficiencies, including compensation for any additional services or work made necessary by such default, neglect, or failure. If payments then or thereafter due to Contractor are not sufficient to cover such amount, the Contractor shall pay the difference to the Town.

12. CORRECTION OF WORK.

(a) Correction of Documents. The Contractor shall be responsible for the professional quality, technical accuracy, timely completion, and the coordination of all designs, plans, reports, drawings, and any other services rendered by the Contractor; and shall, without additional compensation, promptly remedy and correct any errors, omissions, or other deficiencies which may occur.

(b) Correction of Defective Work. The Contractor shall promptly correct all Work rejected by the Town as defective or as failing to conform to the Contract Documents observed before Final Acceptance and whether or not fabricated, installed or completed. The Contractor shall bear all costs of correcting such rejected Work, including compensation for the Town’s additional services made necessary thereby. This obligation shall survive termination of the Agreement. The Town shall give such notice promptly after discovery of the condition.

(c) Removal of Defective Work. The Contractor shall remove from the site all portions of the Work which are defective or non-conforming and which have not been corrected, unless the Town waives removal.

(d) Failure to Correct Defective Work. If the Contractor fails to correct defective or non-conforming Work, the Town may correct it in accordance with the Paragraph titled Town’s Right to Carry Out the Work.

(e) Town’s Right to Remove Defective Work. If the Contractor does not proceed with the correction of such defective or non-conforming Work within a reasonable time fixed by written notice from the Town, the Town may remove it and may store the materials or equipment at the expense of the Contractor. If the Contractor does not pay the cost of such removal and storage within ten (10) days thereafter, the Town, upon ten (10) additional days’ written notice, may sell such Work at auction or at private sale and shall account for the net proceeds thereof, after deducting all the costs that should have been borne by the Contractor, including compensation for the Town’s additional services made necessary thereby. If such proceeds of sale do not cover all costs that the Contractor should have borne, the difference shall be charged to the Contractor and an appropriate change order shall be issued. If the payments then or thereafter due the Contractor are not sufficient to cover such amount, the Contractor shall pay the difference to the Town.

(f) Contractor to Bear Mitigation Costs. The Contractor shall bear the cost of making good all work of the Town or separate contractors destroyed or damaged by such correction or removal, unless in the Town’s sole discretion, the Town agrees to a percentage deduction of the total contract payment, in lieu of said correction or removal of Work.

13. TERMINATION.

(a) Termination for Cause. This Agreement may be terminated in whole or in part in writing by either party in the event of substantial failure by the other party to fulfill its obligations under this Agreement through no fault of the terminating party, provided, that no such termination may be effected unless the other party is given:

i. not less than ten (10) calendar days' written notice of intent to terminate, and

ii. an opportunity for consultation with the terminating party prior to termination.

(b) Termination for Convenience. This Agreement may be terminated in whole or in part in writing by the Town for its convenience.

(c) Effect of Termination. Upon receipt of a termination action pursuant to paragraphs (a) and

(b) above, Contractor shall incur no additional expenses and shall promptly discontinue all Work affected (unless the notice directs otherwise), and the Town may take over the Work and prosecute the same to completion by agreement with another party or otherwise. The Town shall pay the Contractor for all Work satisfactorily performed prior to receipt of the notice of termination and for other services required by the Town to be completed prior to termination and satisfactorily performed. Termination by the Town for any reason does not waive the Town’s right to seek damages from the Contractor, including for liquidated damages, as provided in the Agreement.

14. DEFAULT AND DAMAGES. If the Contractor fails to comply with any provision of the Contract Documents, the Contractor shall be liable for any and all damages, including without limitation, the cost of procuring similar supplies and services and all costs and expenses incurred by the Town because of such failure. If the Town terminates this Agreement for cause pursuant to subsection (a) of the Paragraph titled Termination, the Contractor shall be liable for any additional cost to the Town for services acceptable to the Town from another contractor as well as any actual damages associated with such failure to perform. The cost to complete the Work or any portion thereof which remains unperformed at the time of such termination, together with any other damages, shall be deducted from any sum payable hereunder before final payment to the Contractor. None of the remedies provided to either party under this Agreement shall be required to be exhausted or exercised as a prerequisite to resort to any further relief to which such party may then be entitled. Every obligation assumed by, or imposed upon, either party hereto shall be enforceable by any appropriate action, petition or proceeding at law or in equity. In addition to any other remedies provided by law, this Agreement shall be specifically enforceable by either party. The duties and obligations imposed by this Agreement and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law, including, but not limited to, tort remedies. The Contractor agrees that the economic loss rule as set forth in the Town of Alma v. Azco Construction, Inc., 10 P.3d 1256 (Colo. 2000) shall not serve as a limitation on the Town's right to pursue tort remedies in addition to other remedies it may have against the Contractor. Such rights and remedies shall survive the acceptance of the Work or any termination of this Agreement.

15. TAXES, LICENSES, PERMITS AND REGULATIONS. In all operations connected with the Work, Contractor shall pay all fees, charges and taxes imposed by law and shall obtain all licenses and permits necessary for completion of the Work, paying all fees therefore, unless otherwise specified by the Town. The Town shall assist Contractor to determine which licenses and permits are required for completion of the Work. The Town is exempt from Colorado state sales and use taxes on materials to be permanently incorporated in the Work.

Accordingly, taxes for which the Town is exempt shall not be included in the Agreement Price.

The Town shall, upon request, furnish Contractor with a copy of its Certificate of Tax Exemption. Contractor and subcontractors shall apply to the Colorado Department of Revenue, Sales Tax Division, for an exemption certificate and purchase the materials tax free.

Pursuant to C.R.S. §39-26-114(1)(a)(XIX), Contractor and subcontractors shall be liable to the State of Colorado for exempt taxes paid due to failure to apply for exemption certificates or for failure to use said certificates.

16. INDEMNIFICATION.

(a) Indemnification Generally. The Contractor agrees to and does indemnify, defend, and hold the Town and its officials, agents, and employees harmless from and against any and all claims, damages, losses, injuries, costs, and expenses (including reasonable attorneys’ fees), relating to or arising out of: (1) any act or omission of the Contractor and its employees, agents, or subcontractors in connection with the performance of the Work; (2) any breach of any covenant, representation, or warranty made by the Contractor under this Agreement; (3) use by the Contractor of any intellectual property in connection with the Work (whether such intellectual property is owned by the Contractor or a third party) or the incorporation by the Contractor of intellectual property into the Work; and (4) any workers’ compensation claims brought by any officer, employee, subcontractor, or agent of the Contractor relating to or arising out of such person’s performance of the Work. The Contractor need not indemnify, defend, and hold the Town and its officials and employees harmless from damages resulting from the negligence of the Town, its officials, or employees. The Town cannot, and by this Contract does not, agree to indemnify defend, hold harmless, exonerate, or assume the defense of the Contractor or any other person or entity whatsoever, for any purpose whatsoever.

(b) Compliance with C.R.S. §13-21-111.5(6). This indemnification provision is intended to comply with C.R.S. § 13-21-111.5(6), as amended, and shall be read as broadly as permitted to satisfy that intent. If this Paragraph or any portion hereof is invalidated on any ground by any court of competent jurisdiction, then the Contractor shall nevertheless indemnify and hold harmless the Town and each person indemnified pursuant to this Paragraph as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any such proceeding, appeal, inquiry or investigation to the full extent permitted by any applicable portion of this Paragraph that shall not have been invalidated and to the fullest extent permitted by C.R.S. § 13-21-111.5(6), as amended.

17. INSURANCE.

(a) Generally. The Contractor shall purchase and maintain such insurance in a company or companies licensed to do business in the State of Colorado as will protect it from claims which may arise out of or result from operations under the Agreement, whether such operations be by themselves or by any subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. The insurance required in this paragraph shall be written for not less than the amounts set forth in the Insurance Requirements attached hereto as Exhibit B. The Contractor shall not be relieved of any liability pursuant to the paragraph titled Indemnification by reason of its failure to procure or maintain insurance in sufficient amounts, durations, or types. The Contractor shall provide certificates evidencing such coverage to the Risk Manager prior to commencing the Services and during the term of this Agreement shall provide the Town written evidence of continuing insurance coverage prior to the expiration of the current coverage term. Should the Town request written evidence of continuing insurance coverage, such shall be provided to the Town within three (3) business days of its receipt of the request. The Contractor shall provide the Town no less than thirty (30) days’ prior written notice of any proposed change to, or cancellation of the insurance coverage, including all policy renewal information. Any proposed change to the insurance coverage shall comply with the terms of this Agreement. Any deviations below the insurance standards set forth above must be approved by the Town of Parker Risk Manager. Should the Contractor not have prior notice of a change or cancellation to the insurance coverages, the Contractor shall notify the Town no later than two (2) business days after the Contractor receives notice of a change in or cancellation of coverage.

(b) Endorsement. The Contractor shall request that its Commercial General Liability insurance policy be endorsed to the Town. If requested by the Town, the Contractor shall request from its insurance company an endorsement to any other insurance policy for this Contract, in a form approved by the Town Attorney’s Office, which will require the insurance company to provide the Town with notice of cancellation of the policy. The Contractor shall promptly comply with all terms of the endorsement and shall pay the cost of the endorsement.

(c) Certificate of Insurance. All certificates of insurance and guarantees required by this Agreement shall be submitted by the Contractor to the Town prior to commencement of the Services. Within a reasonable time after submittal, the Town shall either approve the certificates of insurance or notify the Contractor of any unacceptable conditions stating the specific reasons therefor. The Contractor shall promptly re-submit an acceptable certificate of insurance, which the Town shall review within a reasonable time. The Contractor shall not commence any of the Services until all required certificates of insurance have been accepted by the Town.

(d) Breach. Failure on the part of the Contractor to procure or maintain policies providing the required coverages, conditions and minimum limits shall constitute a material breach of contract upon which the Town may immediately terminate this Agreement or, at its discretion, the Town may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by the Town shall be repaid by Contractor to the Town upon demand, or the Town may offset the cost of the premiums against any monies due to Contractor from the Town.

Any termination of this Agreement does not relieve the Contractor from indemnification during the period this Agreement was in effect.

(e) Governmental Immunity. Notwithstanding any other provision to the contrary, 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, protection or other provisions of the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as now or hereafter amended. The parties understand and agree that liability for claims for injuries to persons or property arising out of negligence of the Town, its officials and employees is controlled and limited by the provisions of Section 2-10-101 et seq., C.R.S., as now or hereafter amended.

18. GUARANTEE. The Contractor warrants that it will perform the Work in a timely, accurate, and complete manner in accordance with the provisions of the Contract Documents. The Contractor warrants that the materials and/or workmanship will conform to the Contract Documents and that the materials used will be of good quality and new and that the Work shall be free from defects. The Contractor shall guarantee the Work against defects in workmanship and materials for a period of one (1) year, or longer if a longer period is set forth elsewhere in the Contract Documents, commencing on the date of final acceptance of the Work by the Town Representative (the “Guarantee Period”). The Contractor shall promptly replace any materials or re-perform any portion of the Work found to be defective within the Guarantee Period in accordance with this Agreement and without expense to the Town. The time allowed for such corrective action shall be mutually agreed upon by the Town and the Contractor. If the Contractor fails to proceed promptly in accordance with these guarantees, the Town reserves the right to place the Contractor in default of its contractual obligations and may have the Work performed at the expense of the Contractor. The provision shall survive the completion of the Work and the termination of this Agreement. The Contractor shall also assign to the Town any longer-term guarantee of materials used by the Contractor as may be provided by the manufacturer. The above guarantee does not limit any claims that the Town may otherwise have against the Contractor.

19. ASSIGNMENT. Contractor shall not, at any time, assign any interest in this Agreement or the other Contract Documents to any person or entity without the prior written consent of the Town. The terms of this Agreement shall inure to and be binding upon the successors and assigns of the parties hereto. This Agreement is voidable by the Town and the Town may terminate this Agreement if the Contractor assigns its performance of the Agreement without the prior written consent of the Town Representative, which may be denied or conditioned in the sole discretion of the Town Representative. Any such assignment without the Town Representative’s prior written consent shall be a material breach of this Agreement. Subject to these limitations, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and assigns.

20. SUBCONTRACTORS. All contracts between Contractor and subcontractors shall conform explicitly to all applicable provisions of this Agreement. In all events, Contractor shall be responsible and held liable for any bonding, insurance, warranties, indemnities, progress payments and completion of performance of or to such subcontractors. Upon receipt of progress and final payments from the Town, Contractor shall disburse the same immediately to subcontractors without any requirement of the Town to supervise the same. The Town may, but shall not be obligated to, require Contractor to furnish lien waivers for the work performed or materials furnished by subcontractors or materialmen prior to payment of progress payments or final payment. No contractual relationship shall exist between the Town and any subcontractor because of the subletting of any part of the Work.

21. INDEPENDENT CONTRACTOR STATUS, PAYMENT OF TAXES, AND

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

22. CHANGE ORDER. The Town Representative, by written instructions issued to the Contractor, may extend the Start Date or the Completion Date or make such changes in the Work as may be necessary to accomplish the purposes intended to be provided under this Agreement, including an increase in the Agreement Price. If the change order includes an increase to the Agreement Price, it shall be accompanied by the Town's written assurance that lawful appropriations have been made by the Town to cover the cost of any additional work or materials described in the change order. All other changes to this Agreement must be made by contract amendments, which must be in writing and approved by the duly authorized representatives of each party. The Contractor shall not commence any changed or increased work prior to receipt of a duly executed change order or contract amendment unless directed by the Town as provided herein. Except as provided below, the Town shall have no duty or obligation whatsoever to compensate or to reimburse the Contractor for additional work not specifically authorized as provided herein. In the event (i) the Town requires additional compensable work to be performed by the Contractor prior to the execution or other finalization of a change order or contract amendment, and (ii) the Contractor has submitted to the Town an estimate of the cost for the additional compensable work, then the Town shall reimburse the Contractor for the costs associated with such additional work on a periodic basis in accordance with the terms of this Agreement.

23. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties relating to the subject matter hereof. The Contractor’s rights and obligations shall be solely governed by the terms and conditions of this Agreement and the Contract Documents. The terms and conditions of any Contractor invoice, time sheet, or other form, including but not limited to indemnification, limitation of liability, or cancellation fees, shall be void and of no effect against the Town notwithstanding any signatures on such form by a Town employee.

Any Town employee’s signature on Contractor’s forms shall be effective only to establish receipt of services. This Agreement may only be modified or amended by a writing signed by the authorized signatories of the parties.

24. WORK RULES.

(a) Contractor shall perform all Work hereunder in keeping with the rules and regulations that the Town may promulgate at any time for the safe, orderly and efficient conduct of all operations.

(b) The Town shall have the right to require of Contractor the immediate removal from the Work site of any employee of Contractor or of its subcontractors who, in the discretion of the Town, is not qualified to perform the work assigned to him/her/them, is guilty of improper conduct, or is not working in harmony with the other trades.

(c) Contractor is responsible for the safety of any of its materials, tools, possessions and rented items stored on the job site, and for protection of the Work, and shall hold the Town and its authorized representatives harmless from any damage or loss incurred thereto.

(d) Contractor shall promptly pay in full for any and all damage caused to the Work site by Contractor or by any subcontractor or other person or entity of any nature furnishing materials, equipment, machinery, supplies, labor, skilled services or instruments for whose actions Contractor is responsible hereunder.

(e) No material, equipment, tools, supplies or instruments, other than those belonging to or leased by Contractor, will be removed from the Work site by Contractor without the prior written approval of the Town.

(f) Contractor agrees to report immediately to the Town, in writing, any and all property damage and/or personal injury that occurs on the Work site during the course of Contractor's performance.

25. WARRANTIES. The Contractor represents and warrants that:

(a) It is fully qualified to perform the Work and will perform the Work in a timely, accurate, and competent manner in accordance with the professional standards of the industry provided that this warranty shall not abrogate any independent duty of care owed by the Contractor to the Town.

(b) Any methodologies or programs or other intellectual property utilized under this Agreement were independently developed by it or duly licensed from third parties and shall neither infringe upon nor violate any patents, copyrights, trade secrets, or other proprietary intellectual property rights of a third party.

(c) If it is an entity, it is duly organized, validly existing, and in good standing under the laws of the State of Colorado.

(d) The execution, delivery, and performance of this Agreement by the Contractor does not and will not: (i) require the consent of any undisclosed person or entity; (ii) violate any legal requirement; or (iii) conflict with, or constitute a breach or violation of (a) its entity’s organizational documents, if any, or (b) the terms or provisions of any other agreement, instrument, or understandings by which the…