Filing 7 and 25 Landscaping - Short Form Contract(33168734.1).pdf

SHORT FORM CONSTRUCTION AGREEMENT

THIS SHORT FORM CONSTRUCTION AGREEMENT (“Agreement”) is made as of ____________ (“Effective Date”), between the Aerotropolis Area Coordinating Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado, (“Owner”) and ________________________, whose address is ______________________________ (“Contractor”) (the Owner and Contractor may be referred to individually herein as “Party” and collectively as the “Parties”) for the project known as The Aurora Highlands in Aurora, CO (the “Project”). The Parties agree as follows:

1. Work. Contractor shall fully and timely perform the work, construction, and services necessary to construct and install the improvements depicted or described in the Drawings and Specifications set forth in Exhibit A and the Scope of Work Description set forth in Exhibit B and all other obligations set forth in this Section 1 (collectively the “Work”). In the event of conflicts, inconsistencies, or discrepancies as between Exhibit A and Exhibit B, then Exhibit A shall govern and control.

a. The Contractor shall perform the Work in accordance with the requirements of the Contract Documents and all

Applicable Laws. The term “Contact Documents” means this Agreement, together with its exhibits, and any drawings or specifications referenced herein or attached hereto.

b. The Contractor shall fully comply with all Storm Water Management Plans (SWMPs), and all related permits or licenses, necessary for proper execution and completion of the Work. The Contractor shall comply with and give notices required by agencies having jurisdiction over the Project. At the appropriate times, the Contractor shall arrange and bear cost of tests, inspections, permits, and approvals of portions of the Work required by this Agreement or by laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, including but not limited to, those required by the City of Aurora (collectively, the “Applicable Laws”).

c. The Contractor shall be responsible for all cutting, fitting, and/or patching required to complete the Work and/or to make its parts fit together properly.

2. Schedule. Contractor shall commence the Work as directed by Owner in writing (the “Commencement Date”). Contractor shall fully complete the Work, including (without limitation) obtaining all required inspections and certifications from agencies having jurisdiction over the Project, no later than _________ (the “Completion Date”). Contractor acknowledges that TIME IS OF THE ESSENCE for all time limits set forth in this Agreement.

a. If the Contractor is delayed at any time in the commencement or progress of the Work by (1) a negligent act or omission of the Owner; (2) material changes (but not minor changes) requested by Owner in the Work; (3) labor disputes, occurrences beyond the reasonable control and without fault or negligence of Contractor, fire, documented and unusual delay in deliveries, unavoidable casualties, severe and adverse weather conditions, or other causes beyond the Contractor’s control and not foreseeable as of the Effective Date; or (4) other causes that the Contractor asserts, and the Owner determines, justify delay, then, provided that the Contractor actively mitigated (or reasonably attempted to mitigate) the effect of the delay, the Completion Date shall be extended by the number of calendar days that is equitable and proportional to such delay. Notwithstanding the foregoing, the Completion Date shall not be extended, and the Contract Sum shall not be increased, by the performance of Work that should have been reasonably anticipated as of the Effective Date or was reasonably inferable from the Contract Documents.

3. Contract Sum. Owner shall pay Contractor for Work properly performed in accordance with the following payment terms:

$____________ (the “Contract Sum”). The Contract Sum expressly includes all labor, materials, equipment, tools, utilities, transportation, facilities, and services required by, incidental to, or reasonably inferable from the Work required by this Agreement as necessary for proper execution and completion of the Work.

a. Owner represents that it has appropriated an amount of money equal to or in excess of the Contract Sum.

b. Contractor shall submit invoices to Owner on a monthly basis and such invoices shall become due and payable at the end of each calendar month, or as soon thereafter as practicable, to the Contractor, if the Contractor is satisfactorily performing the Agreement; provided that Owner shall be entitled to withhold five percent (5%) in retention from each payment, the total balance of which may be retained until the Agreement is completed satisfactorily and finally accepted by the Owner. The Owner shall make a final settlement in accordance with Section 38-26-107, C.R.S., within sixty days after the Agreement is completed satisfactorily and finally accepted by Owner.

c. As an express condition precedent to its entitlement to payment for each and every progress payment and final payment, Contractor and its subcontractors and suppliers (at every tier) (collectively, “Subcontractors”) will provide to the Owner with each invoice signed claim waivers in the form attached at Exhibit E for: (i) the payment currently requested conditioned only upon receipt of payment (i.e., conditional claim waivers); and/or (ii) payments previously received, as applicable, without conditions (i.e., unconditional claim waivers).

d. If Owner disputes an invoice or any portion thereof, Owner may withhold such disputed sums from payment. Contractor shall continue to perform the Work pursuant to the Agreement, notwithstanding any such withholding.

e. Attached hereto as Exhibit I is a rate sheet for labor and equipment which shall be used by Contractor in preparing proposed change orders and/or for performing Work on a time-and-materials basis when authorized or directed in writing by Owner.

4. Standard of Care. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences, safety, and procedures, and for coordinating all portions of the Work. Contractor shall perform all Work, and all services incidental thereto, in a timely and expeditious manner, and consistent with that level of care and skill ordinarily exercised by members of the same profession or occupation currently performing work of the same or similar nature, in the same or similar location, and under conditions that are the same or similar to the Project. Without limiting the foregoing, Contractor’s performance of the Work shall comply with or conform to all applicable laws, ordinances, standards, rules, regulations, and codes in force in the jurisdiction in which the Project is located. Should Contractor fail to comply with or conform to such laws, ordinances, standards, rules, regulations, or codes, Contractor shall indemnify and hold harmless Owner from all costs, fees, penalties, and expenses resulting therefrom (including, without limitation, attorney’s fees).

5. Warranty. Contractor warrants that the Work will be performed to the extent and in the manner required by this Agreement and the Standard of Care. In addition to the foregoing, for a period of one (1) year following final acceptance by the Owner, the Contractor, at its own cost, will remedy any portion of the Work not conforming to the requirements of the Contract Documents. If Contractor does not commence performing its warranty obligations within seven (7) days of written notice by Owner, or does not complete performance of its warranty obligations within thirty (30) days of said notice, then Owner reserves the right (in its sole discretion) to arrange for the Work to be repaired by a third party. Contractor will reimburse Owner for all costs and expenses (including reasonable attorney’s fees) incurred by Owner arising out of Contractor’s failure to perform its warranty obligations hereunder, or Owner may deduct such amounts from payments due, or which become due, to Contractor. All guarantees or warranties of equipment or materials furnished under this Agreement are for the benefit of Owner and Contractor will assign (or requires its Subcontractors to assign) such guarantees or warranties to Owner (or Owner’s designee) upon written notice by Owner or upon Contractor’s completion of the Work, whichever is earlier. Nothing herein shall be construed as limiting the time period within which Owner may exercise its rights in equity or at law.

6. Representations. Contractor represents that it possesses requisite skill, expertise, and licensing (if applicable) to perform the Work required by this Agreement. Execution of this Agreement by the Contractor is a representation that the Contractor has visited the site, become familiar with local conditions under which the Work is to be performed, and correlated personal observations with past experiences and the requirements of the Agreement.

7. Supervision. The Contractor shall supervise and direct the Work and the Subcontractors using the Contractor’s best skill and attention. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. The Contractor shall keep the premises and surrounding area free from accumulation of debris and trash related to the Work.

Contractor further agrees to fully coordinate its Work between or among the Subcontractors, and with the work of Owner or other contractors or consultants engaged by Owner, or by Owner’s operators, tenants, and property managers.

8. Subcontractors. The Contractor, as soon as practicable after execution of the Contract, shall furnish in writing to the Owner the names of Subcontractors for each portion of the Work. The Contractor shall not contract with any Subcontractor to whom the Owner has made a timely and reasonable objection. The Contractor shall enforce strict discipline and good order among the Contractor’s employees, Subcontractors, and other persons carrying out the Work. By written agreement, the Contractor shall require each Subcontractor to be bound to the Contractor by terms of this Agreement, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety and insurance requirements, that Contractor owes to Owner under this Agreement. Each subcontract agreement and purchase order shall preserve and protect the rights of the Owner under this Agreement with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights.

9. Correction of Work. The Contractor shall promptly correct Work not properly performed, as reasonably determined by Owner or the Authorities Having Jurisdiction, discovered before the Completion Date and whether fabricated, installed, or completed. The Contractor shall bear the cost of correcting such improper or rejected Work, including (without limitation) the costs of uncovering, replacement, and additional testing for such Work, and the costs of additional services and/or extended general conditions for Owner’s consultants and separate contractors.

10. Owner’s Right to Stop or Carry Out the Work. If Contractor defaults, refuses, fails or neglects to carry out the Work, or to correct Work not properly performed, and fails within a seven (7) day period after receipt of written notice from Owner to commence and continue correction of such Work with diligence and promptness, Owner may, without prejudice to other remedies, correct such deficiencies in its sole discretion. In such case, the Owner may withhold payment in whole or in part, to the extent reasonably necessary to reimburse Owner for the costs of correction or completion, as applicable. If such costs exceed the balance remaining under the Contract Sum, Owner may make a written demand for payment thereof by Contractor.

11. Changes. Contractor shall provide prompt, written notice to Owner of any change in the conditions or scope of work that could not be reasonably anticipated as of the Effective Date, for which Contractor seeks an adjustment to the Contract Sum or Completion Date. Any additional costs or delays to be incurred as a result of such change shall be negotiated in good faith with the Owner prior to the commencement of any changes in the Work. The agreed upon scope, cost, and time adjustments (if any) for any changes in the Work shall be reflected in a mutually executed Change Order. If the Owner and Contractor do not agree on the cost or time impacts of any change in the Work, the Contractor shall nevertheless proceed with performing any change Work so directed by Order, provided the Owner and Contractor shall reserve the right to assert a Claim (as defined herein). Any costs or delays incurred by Contractor without a duly executed Change Order shall be at Contractor’s sole risk, cost, and expense. If concealed or unknown physical conditions are encountered at the site that differ materially from those indicated by Owner or from those conditions ordinarily found to exist, the Contract Sum and Completion Date shall be subject to an equitable adjustment.

a. Notwithstanding the foregoing or anything herein to the contrary, the Owner is prohibited from issuing any change order, as defined in C.R.S. § 24-101-301(2), or other form of order or directive requiring additional compensable work to be performed, which causes the aggregate amount payable under this Agreement to exceed the amount previously appropriated (including for the original contract), unless the Contractor is given written assurances by the Owner 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 unless such work is covered under a remedy-granting provision in the Agreement.

b. For any form of order or directive by Owner requiring additional compensable work to be performed, the Owner shall reimburse the Contractor for the Contractor’s costs on a periodic basis for all additional directed work until a Change Order is finalized; provided that, in no instance shall the periodic reimbursement be required before the Contractor has submitted an estimate of cost to the Owner for the additional compensable work to be performed.

12. Safety. Contractor shall be solely responsible for initiating, undertaking, maintaining, and supervising all necessary precautions for the health and safety of, and the protection of property for, its employees, the Owner and its employees, the occupants of the Project, and adjacent property owners, in conformance with all local, state, federal and OSHA standards. It is the responsibility of the Contractor to schedule all necessary and required testing, quality control and inspections. The Contractor shall promptly remedy damage and loss to property caused in whole or in part by the Contractor, by its Subcontractors, or by anyone for whose acts the Contractor may be liable.

13. Owner Duties. Owner shall provide Contractor with reasonable access to the Project site where the Work is to be performed.

Unless the Parties otherwise agree in writing, Owner shall not be required to provide Contractor with a trailer mobilization site or trailer utility connections, a “lay down” area for materials, supplies, or equipment, nor parking for Contractor or Subcontractors.

14. Independent Contractor. Contractor agrees that it is engaged as an independent Contractor and not as an employee or agent of Owner, and shall not represent otherwise. Contractor shall not take any actions on behalf of Owner or in Owner’s name, without express prior written authorization of Owner. Contractor agrees that all applicable taxes are included in the cost of Contractor’s Work, and that Contractor shall be solely responsible for paying all taxes for its employees.

15. Insurance. Prior to commencing any Work, Contractor shall obtain and maintain at its sole cost the following insurance policies with insurance companies authorized to do business in the State in which the Project is located with an A.M. Best’s Insurance Report rating at not less than A-/VIII:

a. Commercial general liability insurance on an occurrence form in an amount of no less than $1,000,000 per occurrence and

$2,000,000 in the aggregate covering liability arising out of premises operations, personal and advertising injury, products-completed operations, and contractual liability.

b. Automobile Liability covering the use, operation and maintenance of any automobiles, trucks, trailers, and other vehicles owned, hired, and non-owned vehicles used by the Contractor, providing coverage for bodily injury, including death, and property damage. Minimum limits of liability provided by this coverage shall be a Combined Single Limit of $1,000,000.

c. Workers’ Compensation at statutory benefits and limits under the Worker’s Compensation laws of any applicable jurisdiction in which the Work under this Agreement is to be performed, covering all employees.

d. Employers’ Liability with policy limits of no less than $1,000,000 each accident each person, by disease, and each employee by disease.

e. Excess/Umbrella Liability Insurance, applying in excess of the Contractor’s General Liability, Automobile Liability, and Employer’s Liability coverages, with a minimum limit of $5,000,000 for each occurrence and annual aggregate. All coverage terms required of the Contractor’s General Liability, Automobile Liability, and Employer’s Liability coverages shall also apply to this required Excess/Umbrella Liability policy.

f. Pollution Liability Insurance coverage for pollution events resulting from the performance of Work provided under this Agreement, in amounts of no less than $1,000,000 per claim and $2,000,000 in the aggregate, but only when the Contractor has been informed in writing of the need to obtain such coverage.

Owner reserves the right (at any time) to request that Contractor provide certificates of insurance, or copies of insurance policies or endorsements, evidencing compliance with the requirements of this Section. Owner reserves the right to withhold payment to Contractor until such certificates or copies of insurance are provided. Contractor shall name Owner and the indemnitees reflected in Section 16 of this Agreement as additional insureds on the Commercial General Liability and Commercial Auto Liability policies. Contractor shall maintain the required insurance until the expiration of the applicable statutes of limitation and repose, whichever is later. All insurance provided by Contractor hereunder shall be primary and non-contributory to any insurance policies held by Owner. Contractor hereby waives subrogation as to Owner, and its agents, representatives, affiliates, or assigns, on all policies carried by Contractor. If the policies require an endorsement to provide for continued coverage where there is a waiver of subrogation, Contractor shall cause them to be so endorsed. If any portion of the Work is subcontracted, Contractor will require the Subcontractor to comply with all terms, types, and limits of insurance described in this Section.

16. Indemnification. To the fullest extent permitted by law, the Contractor shall defend, indemnify, and hold the Owner and its board members, officers, employees, agents, and consultants (collectively “Indemnitees”) harmless from and against any and all claims, demands, losses, liabilities, actions, lawsuits and expenses (including reasonable attorney’s fees) to the extent arising from: (i) the Contractor’s breach of this Agreement; (ii) the negligent, tortious, or intentional misconduct act or omission of the Contractor or any of its employees, agents, Subcontractors (at any tier) or any person for whom Contractor is legally responsible; or (iii) the recording of a mechanic’s lien or lis pendens against any property underlying the Project or any improvement, or the filing of an action to foreclose upon such a lien, by Contractor, by a Subcontractor (at any tier), or by any person for whom Contractor is legally responsible. The Owner may withhold from payment to Contractor a reasonable amount (not to exceed 150% of the amount claimed) that the Owner considers sufficient to defend, indemnify, or hold itself harmless from and against any and all claims, demands, losses, liabilities, actions, lawsuits and expenses that are the subject of this Section. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist as to any indemnitor described herein.

a. The defense, indemnity, and hold harmless provisions of Section 16 are intended to comply with C.R.S. § 13-50.5-

102(8)(a) and C.R.S. § 13-21-111.5(6) and shall be read as broadly as possible while still complying with such statute.

Accordingly, notwithstanding any contrary language herein, (1) Contractor’s defense, indemnity, and hold harmless obligations under Section 16 shall be limited to the extent and for an amount represented by the degree of negligence or fault attributable to the Contractor, its agents, representatives, employees, Subcontractors, sub-consultants, suppliers, or anyone for whom the Contractor is legally responsible, and (2) to the extent that any aspect of this Section 16 is found to be inconsistent with C.R.S. § 13-50.5-102(8)(a) or C.R.S. § 13-21-111.5(6), the parties agree that it should be reformed to be read as broadly as possible while still complying with such statute.

17. Liens. Contractor acknowledges that the overall Project and all Work relating thereto, are intended to be a public works project subject to C.R.S. § 38-26-101 et seq., and therefore, Contractor acknowledges that the property underlying the Project is not subject to C.R.S. § 38-22-101 et seq. (“General Mechanics’ Liens”). Nevertheless, to the extent that any portion of the Project, the underlying real property, or the improvements thereon, were, are, or become in the future subject to the assertion of a mechanic’s lien under the General Mechanic’s Liens statute, then the Contractor hereby fully and forever waives, disclaims, and releases any and all rights, which may now or heretofore exist or accrue, to record a lien thereon for or in relation to 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 allowable by law. The Contractor covenants and agrees that the foregoing release expressly includes the performance of any Work or Services under this Agreement. Contractor further agrees that all debts owed by 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. In accordance with C.R.S. § 38- 22-129, Contractor shall undertake such filing and notice requirements as may be necessary with respect to any Performance Bond or Labor and Materials Payment Bond to ensure that: (i) all subcontractors, materialmen, mechanics, and others who would otherwise be entitled to a General Mechanics’ Liens shall have a right of action directly against the Contractor and its surety for the full amount due; and (ii) any lien statement or other notice is promptly released in accordance with C.R.S. § 38- 22-129(4). Apart from their right to timely and properly assert claims against the Performance Bond or Labor and Materials Payment Bond required under this Agreement, or under C.R.S. §§ 38-26-105 and 106, the sole remedy of Contractor’s Subcontractors and suppliers, and any other person, as defined in section C.R.S. § 2-4-401(8), that has furnished labor, materials, sustenance, or other supplies used or consumed by a 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 any Subcontractor, shall be to file a verified statement of claim before the time of final settlement pursuant to C.R.S. § 38-26-107.

a. No Subcontractor, laborer, supplier, or any other person for whom Contractor is responsible in connection with this

Agreement shall have the right to record a General Mechanics’ Lien on the Project or the real property underlying all or any portion of the Project, or improvement thereon, any such rights being expressly waived. Contractor agrees to require each of its Subcontractors and suppliers (at all tiers) to expressly incorporate this Section 17 into their respective subcontracts and/or purchase orders, with the word “Contractor” being substituted for the name of such Subcontractor and/or supplier, as appropriate, in each instance. This obligation shall represent a material term of this Agreement. Upon Owner’s written request, Contractor shall provide copies of its subcontracts and/or purchase orders (whether executed or unexecuted) to verify that such subcontracts and/or purchase orders expressly incorporate the acknowledgments, waivers, and releases of this Section 17.

18. Termination. Owner may immediately terminate the Agreement upon the occurrence of an Event of Default. An “Event of

Default” shall mean (a) institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings by or against Contractor if such proceedings have not been dismissed or discharged within thirty (30) days after they are instituted;

(b) the insolvency or making of an assignment for the benefit of creditors or the admittance by Contractor of any involuntary debts as they mature; (c) appointment of a receiver for all or substantially all of Contractor’s assets (d) a material breach by Contractor of any of the provisions of the Agreement if such breach is not cured within ten (10) days of written notice to Contractor. Owner shall have the right to terminate or suspend, in whole or in part, this Agreement at any time for its convenience and without cause upon fourteen (14) days written notice to Contractor. After its receipt of such notice, Contractor shall discontinue performance of the Work, and make no further orders, except as directed in writing by Owner. If Owner terminates or suspends this Agreement or the Work through no fault of Contractor, Owner’s obligations to Contractor under this Agreement shall be fully satisfied by payment of that portion of the Lump Sum Fee attributable to the portion of the Work completed. Such compensation shall constitute Contractor’s sole recourse and remedy for termination by Owner. Upon any termination or suspension, whether due to an Event of Default or for the Owner’s convenience, Contractor shall deliver to Owner all documents, supplies, materials, equipment, and Work prepared or in progress as of the effective date of the termination or suspension, and shall consent to the assignment of any subcontract agreement or purchase order as may be directed in writing by Owner. In no event shall Owner be liable to Contractor for loss of profits, revenue, reputation, or any other consequential, special, or incidental damages, whether resulting from a termination, a suspension, or otherwise.

Contractor may not terminate this Agreement except upon thirty (30) days written notice to Owner of its failure to pay amounts owed under this Agreement and not reasonably disputed by Owner.

19. Dispute Resolution. The Agreement shall be governed by Colorado law. All claims, disputes, and other matters arising out of or relating to the Agreement or the breach thereof (“Claims”) shall be decided by litigation in any court of competent jurisdiction; provided that all Claims in excess of $200,000 shall be mediated before the American Arbitration Association (“AAA”), subject to the then-current AAA Commercial Mediation Rules, as an express condition precedent to litigation. The parties mutually and irrevocably waive their rights to a trial by jury. Any and all Claims shall be tried as a bench trial and not as a jury trial. Following adjudication of a Claim(s), the substantially prevailing party, as determined by the court, shall be entitled to the recovery of its related incurred costs, fees, and expenses, including without limitation reasonable attorneys’ fees, mediator fees, and expert witness fees, from the non-prevailing party.

20. Ownership and Use of Documents. All materials, publications, reports, studies, letters, maps, diagrams, investigations, permits, applications, supplies, plans, specifications, drawings or other items of any kind prepared or obtained by Contractor in the course of performing the Work, upon Owner’s payment for all or any portion thereof, shall be considered “Work Product” and Owner shall receive an indefinite, irrevocable, transferable, and assignable license to the same for its unlimited reproduction, creation of derivative works, and/or any other use. Upon any termination of the Agreement, all Work Product shall be promptly delivered to Owner. Except with Owner’s prior written authorization, Contractor shall not utilize, sell, transfer, incorporate, disseminate, or otherwise use Work Product for any purpose not specified by the Agreement.

Notwithstanding the foregoing, Work Product not created solely and exclusively as a result of this Agreement may be reused by Contractor without limitation.

21. Assignment. Owner may, without consent of Contractor, assign the Agreement to: (i) a lender providing construction financing for the Project; and/or (ii) an entity that owns (in whole or in part) the real property underlying the Project. In the event that this Agreement is assigned, Contractor agrees to forever release and discharge the assignor from and against any and all claims, damages, liabilities, or causes of action arising out of or relating in any way whatsoever to the Work or the Agreement. The Contractor shall execute all consents reasonably required to facilitate any assignment permitted hereunder.

Contractor may not assign this Agreement (in whole or in part) without the prior, written consent of Owner or its assignee, as applicable, and any attempted assignment shall be void ab initio.

22. Confidentiality. During and after the term of this Agreement, Contractor shall keep confidential any financial, operating, proprietary or business information relating to Owner, the Project, or the Work that is not otherwise public information.

Contractor may only disclose “confidential” information after seven (7) days’ written notice to Owner where disclosure is required by law, including a subpoena or other form of compulsory legal process issued by a court, arbitrator, or governmental entity. The Contractor may also disclose “confidential” information to its employees, Subcontractors, and others who need to know the content of such information solely and exclusively for the performance of the Work; provided that such individuals and/or entities agree to maintain the confidentiality of such information; and provided further that Contractor shall be liable for any improper disclosure by such individuals or entities.

23. Additional Terms.

a. Compliance. In performing the Work and other obligations under the Agreement, Contractor must comply with (i) all applicable laws, rules and regulations, including (without limitation) those regarding the payment of sales tax, social security taxes, and other applicable taxes, and (ii) any Owner policies conveyed in writing to Contractor.

b. Authority. Each party represents that (a) it has the corporate power and authority to enter into and perform this Agreement; and (b) execution or performance of this Agreement does not breach any other agreement.

c. Interest for Non-Payment. Any amounts owed by Owner to Contractor under this Agreement shall accrue interest at a rate of 8% per annum beginning sixty (60) days after such amounts become due and owing.

d. Remedies Cumulative. The rights and remedies in this Agreement are cumulative and are in addition to all rights and remedies available in equity or at law (unless waived in this Agreement). By exercising any right or remedy a party does not waive any other available right or remedy.

e. Severability. If any part of this Agreement is held invalid in a legal proceeding, then the rest of the Agreement will remain valid.

f. Notices. All notices under this Agreement must be in writing, sent to the attention of the signatory of this Agreement, using the address for Owner and Contractor indicated above, respectively, and delivered either: (a) in person; (b) by registered, express, or certified mail; or (c) by courier or messenger service. Except for the foregoing requirement, any emails sent by or between the Parties are provided as a courtesy only and not as a substitute for formal service. Subject to the foregoing, notice is deemed to be given on the date delivered or attempted but refused. Any party may change its notice address upon no less than three (3) days’ written notice to the other party.

g. Amendment. Any amendments to the Agreement shall be in writing and signed by both Owner and Contractor. Contractor shall not perform any Work beyond those specified in the Agreement, without the prior written consent of Owner.

h. Captions. The captions of each section are for reference only and do not affect the interpretation of this Agreement.

i. No Presumption Against Drafter. This Agreement expresses the mutual intent of the parties. Each party has had the opportunity to consult with counsel. Any rule of construction that ambiguities will be resolved against the drafting party does not apply.

j. Relationship of Parties. Nothing in this Agreement creates an agency, partnership, joint venture, or similar relationship between the parties. Neither party may bind the other party or hold itself out as having authority to bind the other party.

k. Third-Party Beneficiary. This Agreement is for the sole benefit of the parties and their successors and permitted assigns, and no other person or entity has any right under this Agreement except to the extent identified in this Agreement.

l. Entire Agreement. This Agreement contains the entire understanding between the parties relating to the subject described and supersedes all prior agreements, whether written or oral, relating to the same subject. Owner hereby rejects any terms and conditions contained in any document furnished by Contractor in connection with the Work, this Agreement, or the Project, including (without limitation) any proposals issued by Contractor.

m. Counterparts. This Agreement may be executed in counterparts and delivered by facsimile or other electronic method, which taken together form the Agreement and will be binding as if the original signatures are on one document.

This Agreement entered into as of the Effective Date written above.

AEROTROPOLIS AREA COORDINATING

METROPOLITAN DISTRICT,

a Quasi-Municipal Corporation and Political Subdivision of the State of Colorado

[CONTRACTOR]

By: By:

Name: Matt Hopper Name:

Title: President Title:

EXHIBIT A

List of Drawings and Specifications

The following Drawings and Specifications, each of which has been made available via BidNet, are hereby incorporated into this Agreement:

1. Filing 25 Recorded Site Plan

2. Filing 7 Recorded Site Plan

3. Filing 7 and 25 Landscape Exhibit

4. Filing 7 Irrigation Plans

5. Filing 25 Irrigation Plans

EXHIBIT B

Scope of Work Description

The Aurora Highlands is a new master-planned community located on the high plains prairie, approximately three miles south of Denver International Airport (DIA). The site is located east of Picadilly Road, south of 56th Avenue, north of 26th Avenue, and west of Powhaton Road (future alignment) with a portion also east of Powhaton south of 48th Avenue (future alignment). The development consists of approximately +/- 3,884.9 total acres which is anticipated to be developed with single family and multi-family homes, commercial, retail, industrial, and other amenities, reaching an estimated population of approximately 41,823 people at full build-out.

AACMD is responsible for designing, constructing, and managing the construction of certain public improvements benefiting The Aurora Highlands, both onsite and offsite.

The work generally includes (but is not necessarily limited to) the construction of a new irrigation system and landscaping within Filing 7 and Filing 25. A Biddable Area Map has been included with the Request for Qualifications/Proposals. Any areas not designated in the map will not qualify for this solicitation and will be built by others. Included with the landscape construction but not limited to, will be an irrigation system furnished in place, trees, shrubs, grasses, perennials, amenities including benches, bike racks, trash cans, and pet waste stations, mail kiosks, stone, landscape edgers, and crusher fines trails.

EXHIBIT C

Payment Bond Form

Labor and Materials Payment Bond

KNOW ALL PERSONS BY THESE PRESENTS: That we, the undersigned, [___________], duly organized under the laws of the State of [___________] and licensed to do business in the State of Colorado, as Principal, and [___________], duly organized under the laws of the State of [___________] and licensed to do business in the State of Colorado, as Surety, are hereby held and bound firm unto Aerotropolis Area Coordinating Metropolitan District, as Obligee, in the penal sum of [___________] Dollars ($[___________]), together with interest at the rate of eight percent (8%) per annum on all payments becoming due in accordance with the Contract (defined below) from the time such payments shall become due until such payment shall be made, for the payment of which sum well and truly to be made, the Principal and Surety bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.

WHEREAS, the above-named Principal and Obligee have executed a Contract dated [___________], for the construction of [___________] for the Aurora Highlands development in Aurora, CO (hereinafter “Contract”), which is by reference made a part hereof.

NOW, THEREFORE, the condition of this obligation is such that, if the Principal shall promptly make payment to all claimants as hereinafter defined for all labor and material used or reasonably required for the use in the performance of the Contract, then this obligation shall be void; otherwise it shall remain in full force and effect, subject to the following conditions:

1. A claimant shall be defined as one having a direct contract with the Principal or with a Subcontractor of the Principal for labor, material, or both, used or reasonably required for use in the performance of the Contract; labor and material being construed to include, but not be limited to, that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental of equipment directly applicable to the Contract.

2. The above-named Principal and Surety hereby jointly and severally agree with the Obligee that every claimant, as herein defined, who has not been paid in full before the expiration of ninety

(90) days after the date on which the last of such claimant’s work or labor was done or performed, or materials were furnished by such claimant, may sue on this Bond for the use of such claimant, prosecute the suit to final judgment for sums as may be justly due claimant, together with interest at the rate of eight percent (8%) per annum, and have execution thereon. The Obligee shall not be liable for the payment of any costs or expenses of any such suit, and the Surety hereby agrees to pay and defend the Obligee against any claims brought under this Bond and indemnify the Obligee for any judgments, and save harmless the Obligee from all costs and damages which it may suffer by reason of failure to do so, and in addition to such obligations, shall reimburse and repay the Obligee all outlay and expense including attorney fees and related costs which the Obligee may incur in making good any default.

3. No suit or action shall be commenced hereunder by any claimant:

a) Unless the claimant, other than one having a direct contract with the Principal, shall have given written notice to the Obligee and either the Principal or the Surety within six (6) months after such claimant did or performed the last of the work or labor, or furnished the last of the material for which said claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were furnished, or for whom the work or labor was done or performed. Such notice shall be served by mailing the same by registered mail or certified mail, postage prepaid, in an envelope addressed to the Principal, Owner or Surety, at any place where an office is regularly maintained for the transaction of business, or served in any manner in which legal process may be served in the State in which the Project is located, save that such service need not be made by a public officer.

b) After the expiration of one (1) year following the date on which the Principal ceased work on the above-described Project, it being understood, however, that, if any limitation embodied in this Bond is prohibited by any law controlling construction hereof, such limitation shall be deemed to be amended as to be equal to the minimum period of limitation permitted by such law.

c) Other than in a state court of competent jurisdiction in and for the county of the state in which the Project, or any part thereof, is situated, and not elsewhere.

d) In addition, if the Principal or its subcontractor shall fail to duly pay for any labor, materials, team hire, sustenance, provisions, provender, or other supplies used or consumed by such Principal or its subcontractor in performance of the Contract or shall fail to duly pay any person who supplies laborers, rental machinery, tools or equipment in the prosecution of the Work, then the Surety shall pay the same in an amount not exceeding the sum specified in this Bond together with interest at a rate of eight percent per annum.

e) The amount of this Bond shall be reduced by and to the extent of any payment or payments made in good faith hereunder, inclusive of the payment by Surety of statutory claims which may be filed of record for the Project, whether or not the claim or the amount of such claim be presented under and against this Bond.

Signed this [____] day of [___________], 20[____].

Principal

ATTEST:

By:

(Principal) Secretary Its:

[SEAL] Address:

Surety

(Surety) Secretary Its:

Attorney-in-Fact

(Address)

NOTE: This Bond is given under and subject to the provisions of Section 38-26-101 et.

seq., C.R.S., and must be accompanied by a Power of Attorney effectively dated. Date of Bond must not be prior to date of Agreement. If Principal is a partnership, all partners should execute Bond.

IMPORTANT: Surety companies executing Bonds must appear on the Treasury Department’s most current list (Circular 570 as amended) and be authorized to transact business in the state where the Project is located.

(Power of Attorney Attached)

EXHIBIT D

Performance Bond Form

Performance Bond

KNOW ALL PERSONS BY THESE PRESENTS: That we, the undersigned [___________], duly organized under the laws of the State of [___________] and licensed to do business in the State of Colorado, as Principal, and [___________], duly organized under the laws of the State of [___________] and licensed to do business in the State of Colorado, as Surety, are hereby held and firmly bound unto the Aerotropolis Area Coordinating Metropolitan District, as Obligee, in the sum of [___________] Dollars ($[___________]), for the payment of which penal sum, well and truly to be made, the Principal and Surety bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.

WHEREAS, the above-named Principal and Obligee have executed a Short Form Construction Agreement dated [___________], for the construction of [___________] for the Aurora Highlands neighborhood (hereinafter “Contract”), which is by reference made a part hereof.

NOW, THEREFORE, the condition of this obligation is such that, if the Principal shall promptly and faithfully perform said Contract, including a [___________] ([____]) year warranty period described in the Contract Documents, then this obligation shall be null and void; otherwise, it shall remain in full force and effect.

The Surety hereby waives any notice of any alteration of the Contract or extension of the Contract Time, as stated in the Contract, as may be agreed upon by the Obligee and the Contractor and embodied in any written Change Order whether or not it increases the total price of the Project.

Whenever the Principal shall be in default under the Contract and is declared so by the Obligee and the Obligee has performed all obligations under the Contract, the Surety may (1) remedy the default, or (2) complete the Contract in accordance with its terms and conditions, or (3) obtain a bid or bids for completing the Contract in accordance with its terms and conditions, and upon determination by Surety of the lowest, qualified, responsive and responsible bidder, or, if the Owner elects, upon determination by the Owner and the Surety jointly of the lowest, qualified, responsive and responsible bidder, arrange for a contract between such bidder and Owner, and make available as Work progresses (even though there should be a default or a succession of defaults under the contract or contracts of completion arranged under this paragraph) funds sufficient to pay the cost of completion less the balance of the contract price, but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof. The term “balance of the contract price”, as used in this paragraph, shall mean the total amount payable by Owner to Contractor under the Contract and amendments thereto, less the amount properly paid by Owner to Contractor.

Any suit under this Bond must be instituted before the expiration of two (2) years from the date final payment under the Contract is due. The Obligee shall not be liable for the payment of any costs or expenses of any such suit, and the Surety hereby agrees to pay and defend the Obligee against any claims brought under this Bond and indemnify the Obligee for any judgements, and save harmless the Obligee from all costs and damages which it may suffer by reason of failure to do so, and in addition to such obligations, shall reimburse and repay the Obligee all outlay and expense including attorney fees and related costs which the Obligee may incur in making good any default, together with interest thereon at the rate of eight percent (8%) per annum from the date of judgment.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

Signed this [____] day of [___________], 20[____].

Principal

(Principal) Secretary Its:

Surety

(Surety) Secretary Its:

Attorney-in-Fact

(Address)

NOTE: This Bond is given under and subject to the provisions of Section 38-26,101 et seq., C.R.S. This bond must be accompanied by a Power of Attorney effectively dated.

Date of Bond must not be prior to date of Agreement. If Principal is a partnership, all partners should execute the Bond.

IMPORTANT: Surety companies executing Bonds must appear on the Treasury Department’s most current list (Circular 570 as amended) and be authorized to transact business in the state where the Project is located.

(Power of Attorney Attached)

EXHIBIT E

Claim Waivers

A. CONDITIONAL PARTIAL WAIVER OF CLAIMS FOR PROGRESS PAYMENT

TO WHOM IT MAY CONCERN: [__________] (“Contractor”) has furnished certain labor, skills, materials and/or equipment to the Aurora Highlands (“Project”) located in Adams County, Colorado.

NOW, THEREFORE, Contractor, for and in consideration of the receipt of partial payment in the sum of $___________ (the “Partial Payment”), the sufficiency of which is hereby acknowledged, does hereby waive, release, and relinquish any right it has to any and all other claims of any kind for anything related to the Project against: (a) the real property where the Project is located; (b) the improvements and other property located thereon; and (c) the owner of the Project and its title company and lenders, and each of their respective employees, officers and agents, but only to the extent of the partial payment received. This waiver and release shall only be effective as of the date the Partial Payment is made to Contractor, and only to the extent of the monies so paid on such date.

In order to induce payment to be made, Contractor certifies that it has paid or will pay all of its subcontractors, suppliers, and employees for all items owed for work covered by payments which Contractor has received for the Project prior to the date hereof. Provided payments are made pursuant to the Contract Documents, Contractor will defend and indemnify the owner of the Project, its lenders and title company for and from all costs and expenses, including attorneys’ fees, incurred as a result of claims that any of Contractor’s subcontractors, suppliers or employees have not been paid or relating to the enforcement of this Conditional Partial Waiver of Claims for Progress Payment. Contractor has executed this waiver voluntarily and with full knowledge of its rights under the law.

Contractor:

Signed:

Printed Name:

Title:

Subscribed and sworn to before me by __________ on this _____ day of __________, 20_____.

Witness my hand and official seal.

My commission expires:

Notary Public

B. UNCONDITIONAL PARTIAL WAIVER OF CLAIMS FOR PAYMENT RECEIVED

TO WHOM IT MAY CONCERN: The undersigned [__________] (“Contractor”) has furnished certain labor, skills, materials and/or equipment to the Aurora Highlands (“Project”) located in Adams County, Colorado.

NOW, THEREFORE,…