Monument 2024 CDBG 3rd St Sidewalk ADA_sample agreement.pdf

AGREEMENT BETWEEN

Town of Monument and

Name of Contractor1

THIS AGREEMENT (“Agreement”) is made as of this Day day of Month, Year, between the Town of Monument , a Colorado home rule municipality (“Owner”), with a mailing address of 259 Beacon Lite Road, Monument, CO 80132, and NAME OF THE

CONTRACTOR2, a Form of Entity3 with a mailing address of Contractor Mailing Address (“Contractor”). The Owner and Contractor are sometimes referred to individually herein as a “Party” and collectively as the “Parties.”

In consideration of the mutual covenants, agreements, conditions and undertakings hereinafter set forth, Owner and Contractor agree as follows:

Section 1. Scope of Work. Contractor shall perform all work in accordance with the Contract Documents as identified in Section 18 (Contract Documents) for Town of Monument 2024 Concrete Program including furnishing all construction plans and methods, construction management, labor, equipment and materials (generally referred to as the “Project”), and shall complete the Project, including any additional work authorized pursuant to Section 17, in accordance with the terms of this Agreement and the Contract Documents. Please note that this project is being funded with Federal HUD Funds through an El Paso County Community Development Block Grant. All provisions related to those funds are incorporated into this contract including compliance with the Davis-Bacon Wage requirements. These provisions apply to all workers on site including subcontractors. See attachments included with the RFP regarding record keeping and wage determinations that apply to this project.

Section 2. Contract Price. Owner shall pay Contractor for the performance of work and completion of the Project the total price of Amount spelled out Dollars ($Numeric amount) (the “Contract Price”), subject to certain adjustments as herein provided, in accordance with the bid proposal submitted by Contractor. The Contract Price may be adjusted (i) for changes in the Contract Documents or for extensions of time to complete performance, if approved by Owner and Contractor as specified in Section 17 (Appropriations; Change Orders); (ii) for any additional work authorized pursuant to Section 17 (Appropriations; Change Orders); and (iii) for certain changes in quantities, if bid on a unit-price basis in the bid proposal. All unit quantities requiring an adjustment of

1 NOTE TO USER: Insert name of Contractor.

2 NOTE TO USER: Insert name of Contractor. It should match records on Secretary of State’s website (see next comment) 3 NOTE TO USER: Insert type of entity and State of registration (i.e., a Colorado limited liability company). This should be confirmed on the Colorado Secretary of State’s website to ensure you are contracting with a legitimate entity.

the Contract Price shall be verified by Project Manager, as defined in Section 16 (Project Manager).

Section 3. Progress Payments. Owner will make progress payments monthly on account of the Contract Price in accordance with partial payment applications prepared by Contractor for work performed during the last monthly period and which have been approved by Project Manager and Owner. Contractor shall submit partial payment applications for the last completed work period to Project Manager by the first (1st) day of each month. Owner shall authorize progress payments for the amount approved by Project Manager and Owner under such partial payment applications on or before the fifteenth (15th) day of each month. Progress payments shall not constitute final acceptance of the Project. Owner may withhold progress payments if: (i) Contractor’s performance is inadequate or defective and not remedied in accordance with Project Manager’s directions;

(ii) Contractor does not make prompt and proper disbursements to subcontractors on receipt of progress payments from Owner; (iii) Contractor does not promptly pay for materials, labor or equipment furnished on the Project; (iv) claims or liens are filed on the Project; (v) in Project Manager’s opinion, Contractor’s performance is not progressing satisfactorily or completion of the Project is jeopardized or delayed; or (vi) Owner has not been supplied with certificates of insurance as required by Section 12.g (Insurance).

Section 4. Retainage.4 An amount equal to five percent (5%) of each progress payment made on the Contract Price shall be retained by Owner. Such retainage of the Contract Price shall be held by Owner until the Project is completed and finally accepted by Owner in accordance with the provisions hereof. Owner shall pay the full amount of such retainage to Contractor within sixty (60) days of final completion and acceptance of the Project, except to the extent of any claims filed pursuant to Section 38-26-107, C.R.S.

Any release of retainage to Contractor or a subcontractor prior to final payment shall, in addition to any other requirements of the Contract Documents, require written approval from the surety furnishing bonds pursuant to Section 13 (Performance, Payment and Warranty Bonds).

Section 5. Final Payment.5

a. Upon completion of the Project and Contractor’s submittal of notice thereof to Project Manager and Owner, Project Manager shall inspect the Project and reject any portion of performance not in conformity with the Contract Documents. Defective materials, equipment or work shall be remedied immediately by Contractor before final payment. Owner shall make final payment to Contractor within thirty (30) days after (i) final acceptance of performance by Owner as specified in Section 6 (Final Acceptance) and (ii) receipt of Project Manager’s confirmation to Owner that the Project has been

4 NOTE TO USER: Can delete for very small projects without subcontractors or suppliers. If deleted, add “Intentionally Deleted” as the paragraph heading.

5 NOTE TO USER: Required for contracts of $50,000 or more. Strongly recommended for ALL contracts.

completed satisfactorily. Final payment shall not, however, be due until Contractor has delivered to Owner a complete release of all claims or liens against the Project and has produced satisfactory receipts, waivers or lien releases indicating final and total payment to all subcontractors and persons who have furnished materials, labor and equipment on which a lien or claim might potentially be filed in a form acceptable to Owner. Owner shall, no later than ten (10) days before final payment is made, publish a notice of final payment at least twice in a legal newspaper of general circulation in any county where the work was contracted for or performed pursuant to Section 38-26-107, C.R.S.

b. By making final payment, Owner waives all claims against Contractor, except those expressly declared to Contractor in writing prior to final payment or those arising out of: (i) defective performance appearing after final acceptance; (ii) performance that fails to comply with the Contract Documents, unless expressly waived by Owner in writing; (iii) outstanding claims of any nature, including but not limited to claims for property damage or personal injury arising during the construction period or liens or claims against the Project; or (iv) Contractor’s failure to execute any warranty, guarantee or bond or to provide insurance or other defense and indemnification required by the Contract Documents. By accepting final payment, Contractor waives all claims against Owner, except those expressly declared to Owner in writing and received by Owner prior to final payment. Notwithstanding the foregoing, Contractor shall work with Owner in good faith to resolve any claims it may have prior to final payment being made.

Section 6. Final Acceptance.

a. Final acceptance of the Project shall follow inspection and approval of Contractor’s performance by Project Manager, along with inspection by appropriate manufacturers’ representatives and governmental officials pursuant to local, State and federal requirements as necessary. Owner shall have the right to determine the acceptability of Contractor’s performance and conformance with the Contract Documents, which determination shall be conclusive and binding upon Contractor. Final acceptance by Owner is subject to the provisions of Section 5 (Final Payment) and in no manner affects or releases any warranty or guarantee with Contractor or manufacturers or suppliers of Project equipment or materials.

b. When presented for final acceptance, the Project shall be delivered to Owner in complete compliance with the Contract Documents free from any lien, claim or encumbrance, whether in existence or subsequently established by law, statute, ordinance or otherwise. Notwithstanding the foregoing, nothing in the Contract Documents shall give Contractor or any subcontractor, laborer, supplier, manufacturer or other person or entity, either expressly or by implication, any right to assert a lien, claim or encumbrance against the Project.

Section 7. Commencement and Completion of Performance; Liquidated

Damages.6

a. Contractor shall commence performance within ten (10) days after receipt of written notice to proceed, which is expected to be given on or before Date of Notice, and shall diligently perform all work through completion. Unless an extension of time is granted by Owner as hereinafter set forth, Contractor shall substantially complete the Project within a maximum period of Number of days for completion of project days after the date of written notice to proceed and shall finally complete the Project within a maximum period of Number of days until Substantial Completion days after the date of Substantial Completion. For purposes of this Agreement, (i) “Substantial Completion” shall be the time at which the Project (or a specified part thereof) has progressed to the point where, in the opinion of Project Manager, the Project (or a specified part thereof) is sufficiently complete in accordance with the Contract Documents, so that the Project (or a specified part thereof) can be utilized by Owner for the purposes for which it is intended;

and (ii) “Final Completion” shall be the time at which Owner accepts the Project upon confirmation from Project Manager and Contractor that the Project is totally complete in accordance with Contract Documents.

b. If Contractor fails to perform the Project within the above-referenced performance deadlines or any extension thereof (the “Performance Deadlines”), Contractor shall pay to Owner as liquidated damages (and not as a penalty) for ordinary and general damages and inconvenience (exclusive of any special damages such as, by way of example and not limitation, any liabilities to third parties) the sum of:7

1. Late startup of all major equipment: $ per day8

2. Late Substantial Completion: $ per day

3. Late Final Completion: $100 per day.9

These liquidated damages are based upon Owner’s evaluation of its likely losses in the event the Performance Deadlines are not met. The liquidated damages herein established are agreed to by Contractor after full discussion of the implication of this Section 7. The failure to perform the work and complete the Project by the Performance Deadlines will cause significant damage to Owner. Owner and Contractor agree that such actual damages caused by Contractor’s failure to meet the Performance Deadlines would reasonably likely include, without limitation, the costs for additional construction

6 NOTE TO USER: Delete “Liquidated Damages” from Heading if subsection b is deleted below.

7 NOTE TO USER: Delete subsection b. if no LDs for the Project.

8 NOTE TO USER: Delete if not applicable.

9 NOTE TO USER: Amount to be determined according to Liquidated Damages Form (Internal Document; not a Contract Document).

management and other Owner representative/employee time; the costs for third-party consultants’ time; inefficiency and inconvenience damages to Owner’s operations;

damages to Owner’s reputation with third-parties (including governmental entities with regulatory jurisdiction over Owner), as well as other potential actual damages to Owner reasonably associated with the subject matter of this Agreement. Contractor acknowledges that the liquidated damages established herein are a reasonable pre-estimate of the detriment Owner will suffer in the event Contractor fails to perform the work and complete the Project by the Performance Deadlines and, after a full discussion of the implications of this section, further acknowledges that the above estimates are reasonable of presumed actual damages given it would be impractical and difficult to precisely ascertain the actual damages that Owner might suffer by reason of Contractor’s failure to perform the work and complete the Project by the Performance Deadlines. The liquidated damages established herein are intended to be and are cumulative and shall be in addition to any other remedy enforceable at law under this Agreement. Liquidated damages do not include any sums of money to reimburse Owner for extra costs which Owner may become obligated to pay on other contracts that are delayed or extended because of Contractor’s failure to perform the work and complete the Project by the Performance Deadlines.

Should Owner incur such other additional costs because of delays or extensions to other contracts resulting from Contractor’s unexcused failure or delay in performance, Owner will assess any such extra costs against Contractor in addition to the liquidated damages provided for herein.

c. No extension of time to complete performance shall be granted under normal circumstances. Extensions of time to complete performance may be authorized by Owner in its sole discretion for any actual period of delay on an occurrence basis for:

(i) adverse weather or climatic conditions not reasonably anticipated; (ii) major labor disputes; (iii) acts of God; (iv) detrimental acts of Owner; (v) acts of another contractor in the performance of related work under a separate contract with Owner; (vi) delays resulting from the intervention of governmental agencies in the performance of work on the Project, if not caused by Contractor or its subcontractors; or (vii) other extraordinary circumstances beyond Contractor’s reasonable control. Foreseeable weather delays and delays or failures in delivery of equipment or materials shall not constitute cause for an extension of time to complete performance or for an adjustment to the Contract Price. Any request for an extension of time to complete performance shall be submitted in writing to Project Manager for Owner’s approval within ten (10) days after such occurrence and shall be accompanied and supported by a schedule analysis based on the critical path method, which shows how and where the delay occurred on the then-critical path and its effect on any milestone date or the date of Substantial Completion. The decision of Owner shall be conclusive and binding upon Contractor.

Section 8. Default. Owner may give written notice of grounds for default to Contractor at any time if: (i) Contractor fails to perform in an adequate or specified manner or proceeds in willful violation of the Contract Documents or terms of this Agreement, as determined by Project Manager or Owner; (ii) Project Manager advises Owner that performance of work on the Project is being delayed unnecessarily or that Contractor is executing its responsibilities in bad faith or contrary to the intent of this Agreement;

(iii) performance is not fully completed within the period of time specified for completion under Section 7 (Commencement and Completion of Performance; Liquidated Damages);

(iv) work to be performed by Contractor is assigned without Owner’s consent; (v) the Contractor fails to procure the insurance required hereunder or provide the Owner with Certificates of Insurance, as defined in Section 12.g. (Insurance), within the timeframe provided herein; (vi) Contractor is insolvent or files for bankruptcy; (vii) Contractor makes a general assignment of assets for the benefit of creditors; (viii) a receiver is appointed for Contractor; or (ix) other serious and reasonable cause exists which jeopardizes completion of the Project. If Contractor does not remedy or otherwise correct the grounds for default within such period of time as specified by Owner, Owner may terminate this Agreement and direct Contractor to discontinue any further work on the Project, and Contractor shall immediately stop all work on the Project and forfeit all rights under this Agreement.

Owner, in its discretion, may complete the Project, or may request the surety of Contractor to complete the Project, or may contract with others to complete the Project at the expense of Contractor and its surety. Any increase in costs over the Contract Price and any actual and/or special damages incurred by Owner as a consequence of such default, including reasonable attorneys’ fees, shall be paid and satisfied in full by Contractor and its surety.

Section 9. Termination. At any time, Owner may, without cause and without prejudice to any other right or remedy hereunder, elect to terminate this Agreement. In such event, Owner shall give written notice of Project termination to Contractor at least five (5) days in advance of the Project termination date. Such notice may include specific instructions as to work to be completed and other winding-up matters. In the absence of any contrary instructions, Contractor shall place no further orders or enter into subcontracts related to the Project, shall terminate all orders and subcontracts to the extent they relate to terminated work, and shall stop work on the date and in accordance with directions specified in the notice. Contractor shall cooperate with Owner to transfer all of Contractor’s rights and interests in any orders, subcontracts or work as directed by Owner. Owner shall pay Contractor for the performance of all work through the Project termination date and for such additional amounts as, in the opinion of Project Manager, are reasonable to compensate Contractor for the termination of this Agreement. Final payment to Contractor shall be made in accordance with Section 5 (Final Payment).

Section 10. Taxes, Licenses, Permits, and Regulations. In all operations connected with the Project, Contractor shall pay all fees, charges and taxes imposed by law, except for sales and use taxes from which Owner or the Project are exempt and shall obtain all licenses and permits necessary for completion of the Project, including payment of all fees, unless otherwise specified by the Contract Documents or approved in writing by the Project Manager. Contractor shall comply with all laws, ordinances, codes, rules and regulations of all governmental authorities, whether local, State or federal, relating to the performance of work on the Project and particularly for compliance with those laws concerning the environment, stormwater management permits, workmen’s compensation, safety and health, labor, immigration and equal employment opportunity. Owner shall, upon request, furnish Contractor with a copy of its certificate of sales and use tax exemption. Owner shall not reimburse Contractor for any sales or use taxes paid to the State or any county or municipality from which Owner or the Project are exempt.

Section 11. Indemnification; No Waiver of Liability or Immunity. Contractor agrees to indemnify, defend, and hold harmless the Owner and its officers, directors, employees, agents, engineers/architects and attorneys from all costs, claims, damages, judgments, losses, liability and expenses of every nature, including reasonable attorneys’ fees, arising at any time from any act or omission of the Contractor, its agents, representatives, subcontractors, or suppliers. Contractor shall upon request of the Owner promptly assume the defense, with defense counsel of Owner’s choice and at Contractor’s sole expense, of any claim, action, proceeding or suit that is brought against the Owner arising from any act or omission of the Contractor, its agents, representatives, subcontractors, or suppliers. If other persons and/or entities, excluding the Owner and its officers, directors, employees, agents, engineers, architects, and attorneys, at fault exist, Contractor agrees to work in good faith with such persons and/or entities in determining how the Owner’s defense costs shall be covered, but under no circumstances shall the Owner be responsible for those costs. Contractor further agrees that, to the extent applicable, indemnification shall only be to the extent and for an amount represented by the degree or percentage of negligence or fault attributable to the Contractor or its agents, representatives, subcontractors, or suppliers. The extent of the Contractor’s obligation to indemnify the Owner and its officers, directors, employees, agents, engineers/architects and attorneys may be determined only after the Contractor’s liability or fault has been determined by adjudication, alternative dispute resolution, or otherwise resolved by mutual agreement of the Parties. Contractor’s obligations under this Section shall be to the fullest extent permitted by law and shall survive termination or expiration of this Agreement.

Notwithstanding any other provision contained in this Agreement, the Owner does not agree to defend, indemnify, or hold harmless the Contractor or waive or limit its rights and/or claims in any respect regarding the Contractor’s liability (either by type of liability or amount). Owner is relying on and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities, defenses and protections provided by the Colorado Governmental Immunity Act, § 24-10- 101 et seq., C.R.S., as from time to time amended, or otherwise available to the Owner or its officers or employees. Nothing in this Section shall be construed to require any indemnification that would make this provision void or unenforceable or to eliminate or reduce the indemnification or rights which the Owner has by law.

Section 12. Insurance.10

a. During the term of this Agreement, the Contractor shall purchase and maintain, at its own cost and expense, the following:

1. Workers’ compensation insurance for its employees, if any, as required by Colorado law with limits of at least $500,000 per injury or illness an employee suffers as a result of providing the services hereunder, with a $500,000 aggregate per occurrence;

2. Employer’s liability insurance with limits of at least $500,000 per employee/accident and $1,000,000 aggregate;

3. Commercial general liability insurance covering, without limitation, premises operations, products-completed operations, contractual liability insuring the obligations assumed by the Contractor under this Agreement, personal and advertising injury, and broad form property damage, with limits of at least $2,000,000 per occurrence for bodily injury, death or damage to property; $2,000,000 per occurrence for personal and advertising injury; $2,000,000 products-completed operations aggregate; and $2,000,000 general aggregate;

4. Automobile liability insurance covering all owned, hired and non-owned vehicles used in the performance of the work under this Agreement with a limit of at least $2,000,000 combined per accident for bodily injury and property damage;

5. Unless otherwise waived by the Owner in writing, builder’s risk insurance for protection against damage, explosion, fire, vandalism, theft and other dangers ordinarily included under such coverage, including loss of use resulting therefrom, to the full insurable value of all property, structures, equipment and material of the Owner within the Contractor’s control, designating Owner as “loss payee” thereunder; and11

10 NOTE TO USER: Insurance requirements are negotiable and may vary project-to-project depending on the contract price and size of the Contractor. Smaller contractors might not be able to obtain coverage that meets all of these requirements, in which case modifications can be made. Likewise, you may want to consider increasing these amounts if there is greater liability exposure given the nature or scope of the Project.

11 NOTE TO USER: Delete this paragraph if the Owner is purchasing Builder’s Risk insurance (usually the Contractor purchases it).

6. Pollution/environmental liability insurance with limits of at least $2,000,00012 per claim and in the aggregate covering liability for bodily injury, property damage, environmental damage, clean-up costs and defense costs from operations performed. Such claims-made insurance shall provide a retroactive date of one month prior to the date of the Agreement and either (i) continuous insurance coverage for a period of three (3) years after termination of the Agreement, or

(ii) an extended reporting period of not less than three (3) years after termination of the Agreement.13

b. The insurance required herein may be satisfied through any combination of primary and excess/umbrella liability policies.

c. The insurance required herein shall be written by an insurance company or companies that (i) have an A.M. Best Company rating of “A-VII” or better, and (ii) are authorized to issue insurance in the State of Colorado.

d. The Owner, its directors, officers, employees, Project Manager, and ____14 shall be endorsed as “Additional Insureds” under the (i) commercial general liability insurance policy for both ongoing and completed performance and/or operations for a period of two (2) years15 and (ii) automobile liability policy.

e. The Contractor shall provide a waiver of subrogation endorsement, or its equivalent, under the (i) workers’ compensation; (ii) commercial general liability; and (iii) automobile liability insurance policies in favor of the Owner, its directors, officers, agents, and employees.

f. All liability insurance policies shall provide that the required coverage shall be primary and non-contributory to other insurance available to the Owner and its directors, officers, agents, and employees. Any insurance maintained by the Owner and its directors, officers, agents, and employees shall be excess of and shall not contribute with the Contractor’s insurance.

g. Prior to commencement of work under this Agreement, Contractor shall provide certificates of insurance satisfactory to the Owner that clearly evidence all insurance coverages required herein, including but not limited to endorsements (individually and collectively, “Certificates of Insurance”). Contractor agrees that, until the Owner is supplied with Certificates of Insurance, no payment under this Agreement

12 NOTE TO USER: For projects with a high risk of environmental damage, consider increasing insurance coverage to $5M.

13 NOTE TO USER: Can delete this sentence if Contractor’s insurer will not agree to this.

14 NOTE TO USER: If applicable, add other entities as Additional Insureds (e.g., Town of Vail, the Engineer).

15 NOTE TO USER: This period of time should be the same as the warranty period in Section 14.

will be made by the Owner. Contractor will provide the Owner with updated Certificates of Insurance within ten (10) calendar days of the anniversary of the effective date of coverage should that date fall during the term of this Agreement. Failure of the Owner to require Certificates of Insurance or to identify a deficiency in coverage shall not relieve the Contractor from its responsibility to provide the specific insurance coverages set forth herein.

h. Contractor shall require as part of its contract(s) with subcontractors that each subcontractor purchase and maintain insurance of the types and with policy limits no less than those required of Contractor under this Section 12. All general liability policies carried by a subcontractor shall be endorsed to include the Additional Insureds identified above. Each subcontractor shall be required to provide Contractor with certificates of insurance evidencing such coverage prior to commencement of work by a subcontractor. Such certificates of insurance shall be provided to Owner upon request.

i. The insurance policies afforded hereunder shall not be cancelled or allowed to expire unless at least thirty (30) days’ prior written notice has been delivered to the Owner, except in the event of cancellation due to non-payment of a premium, in which case notice shall be given to the Owner no later than ten (10) days prior to cancellation of the policy. Upon receipt of any notice of cancellation or non-renewal, the Contractor shall, within five (5) days, procure other policies of insurance as necessary to comply with this Section 12 and provide Certificates of Insurance evidencing the same to the Owner.

Section 13. Performance, Payment and Warranty Bond. If the Contract Price is greater than Fifty Thousand Dollars ($50,000.00), prior to commencement of performance, Contractor shall provide to Owner a general performance, payment and warranty bond executed by Contractor and an acceptable corporate surety, or collateral approved by Owner, in the full amount of the Contract Price, including provisions for any adjustment of the Contract Price in accordance with the terms of this Agreement. Such bond shall expressly guarantee: (i) faithful performance of this Agreement and completion of the Project in complete compliance with the Contract Documents; (ii) repair and replacement, if required, or payment of the costs of all defective equipment, materials and work performed on the Project or as provided under any warranty, guarantee or other Contract Document for the full warranty and guarantee period; and (iii) payment to all persons performing labor and furnishing materials, supplies, tools and equipment in connection with the Project. Contractor shall obtain such bond on Owner’s behalf separate and apart from any similar bond or surety or warranty agreement entered into independently between Owner and any manufacturer or supplier. Owner may, in its discretion, require that the bond guaranteeing payment to all persons performing labor and furnishing materials, supplies, tools and equipment in connection with the Project be separate from the bond guaranteeing performance and warranting the work.

Notwithstanding anything contained within the bonds to the contrary, such bonds are required, in part, by and shall comply with the minimum requirements of Section 38-26- 106, C.R.S.

Section 14. Warranties and Guarantees. Contractor hereby represents, warrants and guarantees to Owner all workmanship, equipment and materials on or made a part of the Project and its structures for a period of one (1) year following Final Completion of the Project. Such warranty and guarantee shall be construed to include, but is not limited to, representations that all workmanship, equipment and materials are of good quality, free from any defects or irregularities, and in strict conformity with the Contract Documents.

If any defect in workmanship, equipment or materials arises, Contractor shall remedy or otherwise correct such defect without cost to Owner within such reasonable period of time as specified by Owner in writing. If Contractor fails to repair such defect within such period of time as is specified by Owner, Owner may repair such defect or contract for such repairs at the expense of Contractor and its surety. The performance bond specified in Section 13 shall remain in full force and effect during the period of this warranty and guarantee, including any period necessary to remedy or otherwise correct any defects.

Contractor shall provide such warranty and guarantee on Owner’s behalf separate and apart from other warranties, guarantees and surety agreements entered into independently between Owner and any manufacturer or supplier.

Section 15. Subcontractors, Suppliers and Others. Contractor shall, prior to commencement of performance, submit a list of all major subcontractors, suppliers, and other individuals or entities to be engaged to work on the Project for Owner’s reasonable acceptance (either in writing or by failing to make written objection thereto within ten (10) days after such submission). Contractor shall not substitute any subcontractor, supplier, or other individual or entity previously accepted by Owner without Owner’s prior written consent, which shall not be unreasonably withheld. Owner’s acceptance of any such subcontractor, supplier, or other individual or entity so identified may be withheld or revoked on the basis of reasonable objection after due investigation. In such event, Contractor shall submit an acceptable replacement for the rejected subcontractor, supplier, or other individual or entity, and the Contract Price may be adjusted by any reasonable difference in the cost occasioned by such replacement, and an appropriate Change Order will be issued. No acceptance by Owner of any such subcontractor, supplier, or other individual or entity, whether initially or as a replacement, shall constitute a waiver of any right of Owner or Project Manager to reject defective work. All contracts between Contractor and subcontractors shall conform explicitly to all applicable provisions of this Agreement and the Contract Documents. Contractor shall be responsible and held liable for any bonding, insurance, warranties, indemnities, progress payments and completion of performance of or to such subcontractors, suppliers, or other individuals or entities. Upon receipt of progress and final payments from Owner, Contractor shall disburse the same to subcontractors, suppliers, and other individuals and entities in accordance with the contractual terms between Contractor and such subcontractors, suppliers, and other individuals and entities, without any requirement of Owner to supervise the same. No contractual relationship shall exist between Owner and any subcontractor, supplier, or other individual or entity because of the subcontracting of any part of the Project.

Section 16. Project Manager. Official authority for the administration of all performance under this Agreement is hereby delegated to Owner’s engineer or project manager (“Project Manager”), unless otherwise provided in the Contract Documents.

Throughout the construction period, Project Manager, or such other duly authorized representative of Owner, may inspect the Project and shall consult with Contractor in regard to any inquiries, directions or interpretations of the Contract Documents.

Section 17. Appropriations; Change Orders.16 This Agreement is subject to Section 24-91-103.6, C.R.S., and in accordance therewith:

a. Owner represents that it has appropriated money equal to or in excess of the Contract Price for the work.

b. Owner shall not issue any Change Order or other directive (other than a clarification) requiring additional compensable work to be performed that will cause the aggregate amount payable under this Agreement to exceed the amount appropriated for the original Contract Price and any subsequent appropriations, unless:

1. Contractor is given written assurance by Owner that lawful appropriations to cover the costs of the additional work have been made and are available prior to performance of the additional work; or

2. Such additional work is covered by the following remedy-granting provision: Contractor may request, in writing, a letter from Owner explaining the expected sources of funding for the additional work. In the event Owner does not provide such written assurance reasonably satisfactory to Contractor within five (5) days of Contractor’s request, Contractor may stop work until such time as Owner provides satisfactory assurances. Contractor’s acceptance of a Change Order in accordance with any assurances provided under this paragraph shall not limit or restrict Contractor from making a claim under the Contract Documents for an adjustment in the Contract Price or the Performance Deadlines or otherwise for expenses or damages directly attributable to Contractor’s stoppage of the work as permitted hereunder.

c. For any Change Order or other directive (other than a clarification) that requires additional compensable work to be performed, Owner shall reimburse Contractor for Contractor’s costs on the periodic basis set forth in the Contract Documents for all additional directed work performed until the Change Order is finalized. In no

16 NOTE TO USER: This Section is required by statute. Do not modify.

instance shall the periodic reimbursement be required before Contractor has submitted an estimate of cost to Owner for the additional compensable work to be performed.

Section 18. Contract Documents. The Contract Documents comprise the entire agreement and contract between Owner and Contractor and consist of (i) this Agreement and any exhibit or addendum hereto; (ii) any documents furnished to Contractor by or at the request of Owner in connection with the Project, including but not limited to notice to bidders, instructions to bidders, bid bond form, bid proposal, performance, payment and maintenance bonds, notice of award, notice to proceed, specifications, plans, drawings and special conditions, and any addendum to such documents; and (iii) any modifications, change orders or other such revisions approved by the Parties in writing or duly authorized after the execution of this Agreement.

Section 19. Report of Differing Conditions. If Contractor believes that any technical data on which Contractor is entitled to rely is inaccurate, or any physical condition differs materially from that indicated, reflected or referred to in the Contract Documents, Contractor shall promptly, after becoming aware of such condition and before performing any further work in connection with the Project, notify Project Manager and Owner in writing about such inadequacy or difference.

Section 20. Amendment. This Agreement may be amended, from time to time, by agreement between the Parties. No amendment, modification or alteration of this Agreement shall be binding upon the Parties unless the same is in writing and approved by the duly authorized representatives of each Party. No document executed subsequent to this Agreement shall be interpreted to amend, modify or alter the terms of this Agreement, unless express reference to amending the terms of this Agreement is made in such document.

Section 21. Colorado Labor. If the Project is financed in whole or in part by funds of the State or any county, school district or municipality of the State, Colorado labor shall be employed to perform at least eighty percent (80%) of the work, unless such requirement is waived by the Owner in accordance with Section 8-17-101 (1), C.R.S.

“Colorado labor” means any person who is a resident of the State at the time of the Project.

A “resident of the State” is a person who can provide a valid Colorado driver’s license, a valid State-issued photo identification, or documentation that he or she has resided in Colorado for the last thirty (30) days.

Section 22. Participation in Certified Apprentice Training Program. If the Owner used a prequalification process pursuant to Section 32-1-1805, C.R.S. to select and award the Work, by execution of this Agreement, Contractor represents, warrants, and agrees that the Contractor shall comply with the provisions of Section 32-1-1805(3), C.R.S., relating to access to apprentice training programs certified by the U.S. Department of Labor or a comparable alternative. If the Contract Price is $250,000 or more, Contractor represents, warrants, and agrees that all subcontractors, at any tier, shall have similar access to either a certified program or comparable alternative.

Section 23. Severability. If any term or condition of this Agreement shall, for any reason, be held to be invalid or unenforceable, the invalidity or unenforceability of such term or condition shall not affect any of the remaining provisions of this Agreement.

Section 24. Waiver. No waiver by either Party of any right, term or condition of this Agreement shall be deemed or construed as a waiver of any other right, term or condition, nor shall a waiver of any breach hereof be deemed to constitute a waiver of any subsequent breach, whether of the same or of a different provision of this Agreement.

Section 25. Remedies. 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 shall be enforceable by any appropriate action, petition or proceeding at law or in equity, including specific performance. If Owner does not pursue a particular remedy contemporaneously with a default and/or any other issue that may arise, the Owner does not waive the right to pursue the remedy at a later date.

Section 26. Counterparts; Electronic Signatures; Electronic Records. This Agreement may be executed in multiple counterparts, each of which shall constitute an original, but all of which shall constitute one and the same document. The Parties consent to the use of electronic signatures and agree that the transaction may be conducted electronically pursuant to the Uniform Electronic Transactions Act, § 24-71.3-101 et seq., C.R.S.

Section 27. Entirety. This Agreement and all other Contract Documents constitute the entire agreement between the Parties concerning the subject matter herein, and all prior negotiations, representations, contracts, understandings or agreements pertaining to such matters are merged into and superseded by this Agreement and the other Contract Documents.

Section 28. Conflicting Provisions; Grant Requirements Control;

Interpretation. In the event any provision of this Agreement conflicts with any provision of any other Contract Document, then the provisions of this Agreement shall govern and control such conflicting provisions. If the Project is financed in whole or in part by a federal or State grant, any provision of the Contract Documents that is in conflict with the terms of such grant shall be inapplicable.

Section 29. Assignment. Contractor shall not, at any time, assign any interest in this Agreement to any person or entity without the prior written consent of Owner. The terms of this Agreement shall inure to and be binding upon any successors and assigns of the Parties.

Section 30. Time. Unless otherwise expressly provided, any reference herein to days shall mean calendar days. All times stated in this Agreement are of the essence.

Section 31. Notice. Any notice required hereunder shall be in writing delivered to the applicable Party at the address set forth at the beginning of this Agreement or as changed pursuant to the provisions of this Section.

Section 32. Section Headings. The section headings in this Agreement have been inserted for convenience of reference only and shall not affect the meaning or interpretation of any part of this Agreement.

Section 33. No Third-Party Beneficiaries. The Parties to this Agreement do not intend to extend any benefits to any person not a Party to this Agreement. No person or entity, other than the Parties to this Agreement, shall have any rights, legal or equitable, to enforce or rely on any provision of this Agreement.

Section 34. Duly Authorized Signatories. By execution of this Agreement, the undersigned each individually represent that he or she is duly authorized to execute and deliver this Agreement and that the subject Party shall be bound by the signatory’s execution of this Agreement.

Section 35. Law; Venue. The laws of the State of Colorado shall govern the construction, interpretation, execution and enforcement of this Agreement. Venue for any dispute between the Parties arising out of or relating to this Agreement shall be in the State of Colorado District Court for El Paso County.

Section 36. Not Construed Against Drafter. Each Party acknowledges that it has had an adequate opportunity to review each and every provision contained in this Agreement, including the opportunity to consult with legal counsel. Based on the foregoing, no provision of this Agreement shall be construed against either Party by reason of such Party being deemed to have drafted such provision.

[Signature Pages Follow]

IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year first above written.

OWNER:

Town of Monument, Colorado home rule municipality

By:

Name:

Title:

STATE OF COLORADO )

) ss.

COUNTY OF EL PASO )

The foregoing Agreement was acknowledged before me this Day day Month of, Year , by Name of person signing for the District as ______________ of the Town of Monument.

Witness my hand and official seal.

My commission expires:

Notary Public

CONTRACTOR:

Name of Contractor17

By:

Name:

Title:

STATE OF COLORADO )

) ss.

COUNTY OF County )

The foregoing Agreement was acknowledged before me this Day day of Month, Year, by Name of Person signing for Contractor as Title of Person signing for Contractor of Name of Contractor, a Form of Entity.

Witness my hand and official seal.

My commission expires:

Notary Public

17 NOTE TO USER: Insert name of Contractor and type of entity. This should match the name of the Contractor in the Introductory paragraph of the Agreement.