SAMPLE Owner-Contractor Construction Contract Template.pdf

C04280\000143\4932-3046-2031.v1

CONSTRUCTION CONTRACT

THIS CONSTRUCTION CONTRACT (herein called “Agreement”), is made as of the ________________, 202_ (herein called the “Effective Date”), between [INSERT OWNER NAME], a [INSERT STATE AND LLC OR CORP], [INSERT ADDRESS]

(herein called “Owner"), and [INSERT CONTRACTOR NAME], a [INSERT STATE AND LLC OR CORP], having its principal office at [INSERT ADDRESS] (herein called “Contractor").

RECITALS

Owner is in the business of [DESCRIBE OWNER FUNCTION/BUSINESS/ACTIVITES] and is in the process of constructing an [DESCRIBE PROJECT] located at [ENTER FULL ADDRESS] (“Premises”).

Contractor is in the business of general contracting and performing construction and related work at retail locations.

Owner desires to engage Contractor to perform the services described herein, and Contractor desires to provide such services, in accordance with the terms and conditions of this Agreement.

TERMS AND CONDITIONS

NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual promises, covenants, warranties, representations, terms, and conditions set forth herein. Owner and Contractor hereby agree as follows:

1. Scope of Work. Contractor agrees to provide Owner the construction and services required to complete the work of

Tenant Improvements of a retail store pursuant to the Project Drawings and Specifications as itemized and set forth in Exhibit

A; Scope of Work, Clarifications and Exclusions attached hereto and fully incorporated herein as Exhibit B; Schedule of

Values attached hereto as Exhibit C; and Project Schedule attached hereto and fully incorporated herein as Exhibit D

(collectively the “Work”). This Agreement, the aforementioned Exhibits, other documents listed in this Agreement, and

Modifications issued after execution of this Agreement, all of which form the “Contract” and are as fully a part of the Contract as if attached to this Agreement or repeated herein may also be referred to from time to time as the “Contract Documents.”

All Work to be performed by Contractor shall be completed and performed in accordance with the professional standard of performance and care ordinarily exercised by members of Contractor's business or profession until all Work has been fully performed to Owner’s satisfaction, in accordance with this Agreement and in accordance with all requirements of the owner of the Premises (and Contractor acknowledges receipt of such requirements) (“Completion”). Contractor shall achieve Substantial

Completion on or before [ENTER DATE] (“Completion Date”), unless otherwise agreed upon by the parties and reflected by a Change Order (as hereinafter defined). In the event of conflict between any terms of this Agreement and the terms of the

Work as set forth in Exhibit A, Exhibit B, Exhibit C and Exhibit D, the terms of this Agreement shall control. For the purpose of clarity, if the terms of the Work as set forth in Exhibit A, Exhibit B, Exhibit C, and Exhibit D contain terms other than a description of the services to be performed, such terms and conditions shall be of no effect. At no time shall Contractor’s bid or proposal, in whole or part, be incorporated into this Agreement unless expressly attached hereto as one of the foregoing exhibits.

Contractor agrees to (i) keep the Premises and surrounding area free from the accumulation of construction materials, equipment, tools, machinery, and waste, (ii) make every effort not to disrupt the operations or other business activities of Owner while performing the Work, (iii) utilize and install, on a temporary basis, any barriers and/or protective devises to ensure the safety of Owner's employees, agents, vendors, other contractors, and consumers on or about the Premises and surrounding area, and (iv) protect Owner's other property, including but not limited to inventory, equipment, and supplies.

Contractor shall supervise and direct the Work, using Contractor’s best skill and attention. Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences, and procedures, and for coordinating all portions of the Work under the Agreement, unless the Agreement gives other specific instructions concerning these matters. Contractor shall be responsible to Owner for acts and omissions of Contractor’s employees, subcontractors and their agents and employees, and other persons or entities performing portions of the Work for, or on behalf of, the Contractor or any of Contractor’s subcontractors.

2. Schedule of Work

(i) Date of Commencement of the Work shall be:

The Date of this Agreement

The following date:

A date set forth in a notice to proceed issued by the Owner.

If a Date of Commencement of Work is not selected above, then the Date of Commencement shall be the date of this

Agreement. The contract time shall be measured from the Date of Commencement of the Work.

(ii) Substantial Completion is the stage in the progress of the Work when the Work or a designated portion thereof is sufficiently complete in accordance with the Agreement so that Owner can occupy or utilize the Work for its intended use and a Certificate of Occupancy has been obtained. Date of Substantial Completion of the Work shall be achieved by Contractor:

Not later than ( ) calendar days from the Date of Commencement of the Work.

Not later than the following date:

(iii) If Contractor fails to achieve Substantial Completion as provided in this Section, liquidated damages shall be assessed as follows (“Liquidated Damages”):

$[INSERT DOLLAR AMOUNT] per day for each calendar day after the Substantial Completion Date has passed.

3. Fee: Payment. The agreed upon fees for the Work shall not exceed _________________ ($___________) (“Fee”). No payment shall be due and/or payable by Owner hereunder unless and until Contractor complies with the provisions of this

Section. Owner shall pay Contractor for the performance of the Work, in arrears, and no more often than monthly, payable within thirty (30) days after Owner's receipt of the appropriate invoice, subject to retainage of ten percent (10%), or such lesser percentage if the lesser percentage is mandated by applicable law. All invoices are to be sent to [INSERT CONTACT NAME

AND EMAIL ADDRESS] with a copy to [INSERT CONTACT NAME AND EMAIL ADDRESS] and shall be accompanied by a conditional lien waiver/release for the amount of the invoice, including those lien waivers/releases all subcontractors and suppliers who have performed services and/or provided materials for the Work. Any second and subsequent invoices shall also include unconditional lien waivers/releases from Contractor and/or any subcontractor and suppliers for those payments previously paid. Owner reserves the right to withhold additional amounts from payment (above and beyond retainage) in the amount of any invoiced line item if Contractor does not supply Owner with fully executed lien waiver/releases.

Additionally, upon any notice of lien rights from a subcontractor or supplier, Owner reserves the right to require joint checks that shall be signed by both Contractor and all subcontractors or material suppliers on a going forward basis.

(i) Each invoice submitted to Owner shall be supported by sufficient information to substantiate Contractor's right to payment, such as subcontractor's and material supplier’s requisitions, equipment, and supplies stored on or off the Premises, and labor provided relating to the work.

(ii) Notwithstanding anything contained in this Agreement to the contrary, if Owner contests all or any portion of any invoice, Owner shall be required to pay only the portion of such invoice not contested by Owner. Any contested portion of such invoice shall not be payable by Owner until any disagreement between Owner and Contractor with respect thereto is resolved and a revised invoice is submitted to Owner by Contractor reflecting the appropriate adjustments agreed to by the parties. Contractor may be notified by Owner of any contest by facsimile, electronic mail, or by regular U.S. Mail.

(iii) Upon Owner's receipt of notice from Contractor that Contractor has achieved Completion, including but not limited to the return to Owner by Contractor of any final punch list, Owner and Contractor will make final inspection of the Work. If the Work is to the satisfaction of Owner, Owner will make final payment to Contractor.

Final payment shall consist of any remaining balance of the Fee owed to Contractor for Work performed and any and all retainage (“Final Payment"). Final Payment is conditioned upon Contractor providing Owner with

Contractor's unconditional lien waiver/release in the full amount of the Fee and unconditional lien waivers/releases from all subcontractors and suppliers providing any portion of the Work and/or material for the

Work and all close-out documentation, warranties, operating manuals, as-built drawings, etc (including final

Certificate of Occupancy).

(iv) The Owner is hereby authorized to deduct and offset from any payment an amount equal to any and all sums or obligations owing by the Contractor to the Owner and costs necessary to complete the work to be performed under this Agreement, and any and all claims liquidated or unliquidated, by the Owner against the Contractor, arising hereunder, under any other contract or agreement between the Contractor and the Owner or from any other liability or obligation of the Contractor to the Owner whether under this Agreement or otherwise. Owner may apply any payments otherwise due to Contractor hereunder to any other indebtedness, liability or obligation of

Contractor to Owner whether under this Agreement or any other agreement or circumstance.

(v) Contractor shall provide conditional and unconditional lien waiver/releases in the form as attached hereto and fully incorporated herein as Exhibit E.

4. Liens. In the event that liens or petitions for mechanics liens are filed by anyone in relation to the labor and/or material being furnished by Contractor, Contractor agrees to have the same discharged, unless Owner is in breach of its undisputed payment obligations hereunder, by posting a bond with the appropriate authorities or otherwise, within ten (10) days of receipt of notice from Owner.

(i) In the event that such liens are not so discharged, Owner shall have the right to bond-off said lien(s) and withhold or recover from Contractor all costs incurred as a result thereof, including but not limited to, bond premiums and attorneys’ fees. The cost of bonding-off such liens shall be borne by Contractor, unless Contractor itself pays for the required bond and it is subsequently determined that such liens were the result of Owner’s failure to pay

Contractor in accordance with the Contract Documents. In such case, the cost of bonding-off such liens shall be reimbursed to Contractor as a change to the Agreement. Owner’s remedies under this Section are in addition to, and not a limitation of, any rights Owner may have under this Agreement or other rights Owner may have under the law. Provided Owner has fulfilled its payment obligations under this Agreement, Contractor shall defend and indemnify Owner from all loss, liability, damage or expense, including reasonable attorneys’ fees and litigation expenses, arising out of any lien claim or other claim for payment by any subcontractor or material supplier at any tier.

(ii) Contractor shall include the following provision (or one substantially the same) in all subcontracts or other contractual writings with Contractor’s subcontractors and material suppliers: Unless in conflict with the laws, statutes, and regulations of the state in which the Premises is located and in which a lien or petition for mechanics lien would be filed, and notwithstanding any other notice requirements as required by law, subcontractor shall deliver written notice to Contractor and to Owner at least ten (10) days prior to filing any petition or claim for lien.

5. Change Orders. Changes in the Work may be made after execution of this Agreement by written instrument prepared by

Contractor and signed by Contractor and Owner ("Change Order"). Each Change Order shall, at a minimum, specify the changes to the Work, the amount of any adjustment to the Fee for such changes to the Work, and the effect such changes to the

Work may have on Completion. If Owner desires a change in the Work, Owner will provide Contractor with notice of such changes and Contractor shall, within five (5) days of receiving such notice from Owner, provide a proposed change order

(“Proposed Change Order") to Owner. Any adjustment to the Fee for such Change Order shall be in an amount no greater than the cost of such Change Order plus ten percent (10%). Owner shall provide Contractor with (i) a signed Proposed Change

Order, or (ii) an unsigned Proposed Change Order with additional changes necessary before Owner will sign the Proposed

Change Order. Contractor shall, within five (5) days of receiving such unsigned Proposed Change Order with additional changes from Owner, provide any additional response or modification to the Proposed Change Order or return a Contractor-executed version of same. Once both parties sign a Proposed Change Order, it becomes a Change Order.

6. Suspension of Work. Owner may, without cause and at any time, suspend, delay, or interrupt Work for any such period as Owner deems appropriate in Owner’s sole discretion. Owner shall issue such notice of suspension in writing.

7. Default. If Contractor defaults, neglects to carry out the Work in accordance with the Agreement, or otherwise commits a material breach of the Agreement, and Contractor fails within a seven (7) day period after receipt of notice from Owner to commence and continue correction of such default or neglect with diligence and promptness. or otherwise cure the material breach, Owner may, without prejudice to other remedies that Owner may have, correct such default or neglect at Contractor’s sole cost and expense.

8. Termination (Default). In addition to those remedies available in the Default section, Owner may also terminate the

Agreement for default after seven (7) days’ written notice. Further, Owner may terminate the Agreement for default after seven

(7) days’ written notice if Contractor: (A) refuses or fails more than once to supply sufficient skilled labor or materials; (B) fails to make payment to subcontractors or material suppliers; (C) disregards applicable law, statutes, codes, ordinances, regulations, or lawful orders from the government or public authority; or (D) is bankrupt, insolvent, or files or has filed against it, a petition under title 11 of the United States Code (the “Bankruptcy Code”). Upon the date of termination, Owner may exclude Contractor from the Work site, take possession of all materials, equipment, tools, and machinery located at the site, and complete the Work by whatever reasonable means or method Owner determines appropriate in its sole discretion. Within ten (10) days of the date of termination, Contractor shall submit to Owner an invoice for all Work performed between the last submitted invoice and the date of termination, however, Contactor shall not receive further payment until Owner completes the

Work. Within thirty (30) days of completion of the Work, Owner shall calculate and pay to Contractor all remaining Fee then due, less any costs and expenses to complete the Work, other damages sustained by Owner, and any reasonable attorneys’ fees and costs associated with the termination for default (collectively, “Owner Completion Costs”). In the event Owner Completion

Costs exceed the unpaid balance of the Fee owed to Contractor, Contractor shall pay the difference to Owner.

9. Insolvency. The Contractor represents and warrants that it is an expert in the particular line or lines of work herein contracted to be done and that it is competent to know whether the materials, methods and apparatus specified for this Work are sufficient and suitable to secure the results contemplated by this Agreement. In the event Contractor files or has filed against it, a petition under the Bankruptcy Code or other state of federal insolvency proceeding (each, a “Contractor Insolvency

Proceeding”), and a trustee or receiver is appointed in such proceeding, there shall be deemed an automatic default by

Contractor hereunder based upon lack of expertise of said trustee or receiver in the subject matter of this Agreement. The parties hereto acknowledge that time is of the essence, and Contractor shall not oppose any request by Owner in an insolvency proceeding to shorten the time for assumption or rejection of this Agreement. Owner expressly reserves all rights and remedies available at law, in equity, and pursuant to the Bankruptcy Code, including the right to demand adequate assurance of future performance.

10. Termination (Convenience). Owner may, in its sole discretion, immediately terminate this Agreement with written notice to Contractor. Contractor shall cease operations as directed by Owner, take actions necessary or as directed by Owner to protect and preserve Work, terminate all existing subcontracts and purchase orders, and not enter into any new subcontracts or purchase orders in support of the Work. Contractor shall be paid for all Work actually performed to the satisfaction of Owner through the date of termination and for any fees or expenses associated with protection and preservation of Work directed by Owner and incurred up until the date of termination. This Agreement shall commence on the Effective Date and shall remain in full force and effect until the later of the (i) effective date of termination, or (ii) Owner makes Final Payment. Without limiting the generality of the foregoing, Sections 4, 8, 11, 15-19, and 21-25, and any other Section which by its very nature is intended to survive the termination or expiration of this Agreement will survive the termination or expiration of this Agreement.

11. Warranties; Representations; Covenants. Contractor warrants and represents that the execution, delivery, and performance of this Agreement by Contractor (A) is not inconsistent with and will not violate or contravene any laws applicable to Contractor; (B) is not inconsistent with and will not violate or contravene the certificate of incorporation or bylaws or operating agreement of Contractor; (C) does not and will not contravene any provision of, or constitute a default under, any contract to which Contractor is a party or which it is bound; and (D) does not require any consents from any person, association, entity, or governmental authority necessary to render the transaction contemplated hereby lawful, effective in accordance with the terms of this Agreement, and in compliance with any requirements by which Contractor is bound. Contractor warrants, represents, and covenants (a) that it has received a full set of drawings and specifications as itemized and set forth on Exhibit

A; (b) that the Work it is to provide will be of skillful and workmanlike quality and will be performed with that level of care and skill ordinarily exercised by members of Contractor's business or profession, and will be performed in accordance with the provisions of this Agreement and in accordance with all requirements of the Premises owner; (c) that it is qualified, and if required by law, duly licensed to perform the Work; (d) that it and its employees and agents are, and during the Term shall remain, fully qualified, licensed as required by law, and skilled to perform the Work; (e) that any equipment and materials furnished under the Agreement will be in compliance of the Agreement and will be of good quality and new; and (f) that the

Work will be free from defects.

(i) Contractor shall promptly correct, to Owner’s satisfaction and at no cost to Owner, Work rejected by the Owner or any governmental authority or failing to conform to the requirements of the Agreement, whether discovered before or after Completion and whether or not fabricated, installed, or completed.

(ii) In addition to Contractor's obligations under this Section 6, if, within one year after the Completion Date, any of the Work is found not to be in accordance with the requirements of the Agreement, the requirements of the

Premises owner, the requirements or representations of Contractor, or otherwise defective, Contractor shall correct it to Owner’s satisfaction (and at no cost to Owner) promptly after receipt of written notice from Owner.

(iii) Execution of the Agreement by Contractor is a representation that Contractor has visited the Work site, become generally familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Agreement. Contractor shall promptly report to Owner any errors, inconsistencies, omissions or nonconformity with laws in the Agreement discovered by or made known to

Contractor.

12. Compliance with Laws. In performing the Work required under this Agreement, Contractor shall comply with all federal, state, county, and municipal laws, statutes, ordinances, rules, and regulations, including without limitation, any licensing, bonding, and permit requirements, payment of all applicable taxes and withholding workers’ compensation. Contractor shall flow down the same or substantially similar requirement to all subcontractors and other persons or entities performing portions of the Work for, or on behalf of, Contractor and any subcontractors.

(i) Without limiting the foregoing, Contractor shall not discriminate against any individual because of race, gender, age, color, national origin, disability, sexual preference or gender reclassification. If Contractor is determined to be in violation of federal, state, or county non-discrimination laws by an order, opinion, or a decision of a

Maryland court or an administrative body or agency, Owner may terminate or suspend this Agreement in whole or in part, and Contractor may be declared ineligible for any future contracts with Owner.

13. Relationship of the Parties. Contractor does hereby acknowledge, represent, and warrant that it is an independent contractor. In no event and under no circumstances shall Contractor, in the performance of its contractual obligations hereunder, be deemed or considered to be acting as a servant, agent, employee, co-partner, or joint venture of Owner, nor shall any of the provisions of this Agreement be construed in any manner as to make Owner liable for the debts or obligations of

Contractor. Contractor agrees that it is solely responsible for all payments due or to become due to all its employees or material suppliers, including the withholding of appropriate taxes and compliance with any and all workers’ compensation laws or similar employer obligations or requirements with respect to its employees. Contractor hereby agrees to indemnify, defend, save, and hold harmless Owner and its affiliates, subsidiaries, employees, agents, members, and parent corporations of and from any and all liability therefor.

Contractor, as soon as practicable after execution of the Agreement, shall notify Owner of the subcontractors or suppliers proposed for each of the principal portions of the Work. Contractor shall not contract with any subcontractor or supplier to whom the Owner has made reasonable written objection within ten days after receipt of the Contractor’s list of subcontractors and suppliers. If required by the premises owner, the premises owner shall also have approval rights over the subcontractors and suppliers.

14. Insurance and Bonds. Contractor warrants and represents that it carries, and covenants that it will continue to carry at all times during the term of this Agreement, an insurance policy or policies protecting Owner and its respective owners, officers, directors, partners, agents, and employees against loss, damage, or liability for bodily injury, property damage, or personal injury or expense, arising out of or occurring upon or in connection with Contractor's performance of this Agreement. Owner shall be added as an Additional Insured on such policy or policies (with exception of Workers' Compensation). Proof of insurance coverage shall be received by Owner before Contractor’s performance of the Work hereunder.

(i) Such policy or policies shall be issued by an insurance company or companies satisfactory to Owner and shall include, at a minimum, the following coverage:

a. Commercial General Liability insurance, including premises liability, products liability, completed operations, and contractual liability for bodily injury, property damage, and personal injury coverage, with a per occurrence limit of at least Two Million Dollars ($2,000,000), a products/completed operations aggregate limit of at least Two Million Dollars ($2,000,000), and a general aggregate limit of at least Two Million

Dollars ($2,000,000); Form/Endorsements required: Additional Insured ISO Form CG2010 (11/85) or its equivalent (CG2010/10-01) and CG2037 (07-04). Waiver of Subrogation, Primary & Non-contributory wording (as stated in (ii) following), Severability of Interest Clause.

b. Automobile Liability insurance covering all owned, hired, and non-owned vehicles, for bodily injury, property damage, uninsured motorists, and underinsured motorists coverage, with a combined single limit of at least One Million Dollars ($1,000,000) any one loss or accident; and

c. Workers' Compensation and Employers Liability insurance, as well as such other insurance as may be required by statute or rule of any state where the Services are to be performed.

(ii) The insurance afforded by the policy or policies respecting liability shall not be limited in any way by reason of any insurance that may be maintained by Owner, and shall specifically state that in all circumstances said policy or policies arc primary and not excess over or contributory with any policy or policies maintained by Owner. Contractor shall furnish a Certificate of Insurance showing compliance with the foregoing requirements to Owner. Such certificate shall state that said policy or policies will not be canceled or materially altered without at least thirty (30) days prior written notice to Owner and shall reflect proof of payment of premiums. Maintenance of such insurance and the performance by Contractor of the obligations under this Section shall not relieve Contractor of liability under the

Indemnity provisions set forth in Section 8 of this Agreement. In the event that Contractor receives from an insurer any notice of cancellation, non-renewal, or any other modification of any of the insurance policies required in this

Agreement, Contractor shall give written notice to Owner within twenty four (24) hours of receipt of such document.

(iii) Contractor shall purchase and maintain, at its sole cost, property insurance written on a builder’s risk ‘'all-risk" or equivalent policy form in the amount of the Fee on a replacement cost basis without optional deductibles. Such properly insurance shall be maintained until final payment of the Fee has been made or until no party other than Owner has an insurable interest in the Premises, whichever is later.

a. Property insurance shall be on an "all-risk” or equivalent form and shall include, without limitation, insurance against the perils of fire and physical loss or damage.

b. If the property insurance requires deductibles, Contractor shall pay costs not covered because of such deductibles.

c. The property insurance shall cover materials for the Work stored at a location other than the Premises as well as those materials for the Work in transit.

(iv) All liability policies (excluding workers compensation) shall list Owner, the premises owner, and any other entities required by Owner or the Premises owner, as additional insureds. Contractor agrees to comply with any other insurance requirements of the Premises owner.

(v) In addition, Contractor shall, upon request from Owner, furnish surety bonds covering faithful performance of the

Agreement and payment of obligations arising hereunder as stipulated in the Agreement. Any such bond shall be in an amount and in form and content and with a corporate surety authorized to do business in the jurisdiction in which the Premises are located and acceptable to Owner, in its sole discretion.

15. Indemnification. Contractor will indemnify, defend, and hold harmless Owner and its directors, officers, agents, and employees from any loss, claim, liability, and expense (including reasonable attorneys' fees and expenses of litigation) with respect to (i) Worker's Compensation benefits payable on account of injury or death to any Contractor employee or to any employee of Contractor's subcontractors, where the injury or death arises out of or is in any way related to the Work performed or to be performed under this Agreement; (ii) claims for bodily injury, personal injury, death, or property damage or loss asserted by any Contractor employee, agent, or subcontractor where the injury, death, damage, or loss arises out of or is in any way related to the Work performed or to be performed under this Agreement; (iii) claims for personal injury, death, property damage, or loss by theft asserted by third parties including any employees of Contractor, or Contractor’s subcontractors, agents, employees, or delegates, or of any other party at the Premises where the injury, death, damage, or loss by theft arises out of or is in any way related to the Work performed or to be performed under this Agreement or where the claim is based on any act or omission by Contractor, Contractor's subcontractors, agents, employees, or delegates; (iv) claims from any state agency or taxing authority related to the Work; and (v) claims resulting in fines and/or forfeitures for failure to comply with all federal, state, county, and municipal laws, statutes, ordinances, rules, and regulations, including without limitation, any licensing, bonding, and permit requirements.

16. Entire Agreement. This Agreement, and all agreements contemplated and referenced herein, represent the complete and final agreement of the parties with respect to the subject matter herein contained and supersedes and incorporates all prior and contemporaneous representations, understandings, and agreements. This Agreement is binding upon the parties, their heirs, personal representatives, successors, and assigns. No alteration, variation, amendment, or modification of the terms of this

Agreement shall be valid unless made in writing and signed by the parties hereto (“Modification”). No delay or omission by any party to exercise any right or power it has under this Agreement will impair or be construed as a waiver of such right or power. A waiver of any party of any breach or covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers shall be in writing and signed by the party waiving its rights.

17. Authority. Each signatory represents and warrants that he/she has the full power and authority to execute and deliver this

Agreement on behalf of the entity for which he/she is signing, and that he/she will defend and hold harmless the other party and signatory from any claim that he/she was not fully authorized to execute this Agreement on behalf of the entity for which he/she signed.

18. Governing Law: Venue. This Agreement shall be governed by the substantive laws of the State of Maryland without giving effect to conflict of law principles. The foregoing notwithstanding, the exclusive venue of any such action shall be in

Howard County, Maryland, and each of the parties hereby consents to the exclusive personal jurisdiction of any court of competent subject matter jurisdiction sitting in Howard County, Maryland.

19. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same document. Delivery of an executed counterpart of this Agreement via facsimile or electronic mail in portable document file format shall be as effective as delivery of an originally-signed executed counterpart of this Agreement.

20. Assignment. Contractor shall be prohibited from assigning or transferring any rights under this Agreement without the prior written consent of Owner, which shall not be unreasonably withheld.

21. Confidentiality and Non-Disclosure. In connection with the performance of this Agreement, it may be necessary for

Owner to disclose to Contractor certain information relating to Owner’s business, operations, finances, employees and customers, as well as other confidential or proprietary Owner information (the “Information”). Contractor agrees that all

Information will be held in confidence, except for information which is already in the public domain or becomes available to the public in a printed publication through no act or failure to act on Contractor’s part, or which Contractor hereafter rece ives from another party which did not receive such Information directly or indirectly from Owner. Contractor agrees that it will not disclose the Information to others, and will exercise all reasonable precautions to prevent the disclosure of such Information to others. Contractor shall not use any such Information except for the benefit of Owner as specifically authorized and instructed by authorized Owner personnel. At any time upon Owner’s request, Contractor shall surrender to Owner all documents or material from such documents that it may receive from Owner or that it may make that contain any Information.

22. Recitals; Exhibits; Headings. The Recitals are hereby incorporated in this Agreement, constitute a part of this Agreement, and are made a part of this Agreement as fully and completely as if set out herein in their entireties. All Exhibits attached to this Agreement are hereby incorporated in this Agreement, constitute a part of this Agreement, and are made a part of this

Agreement as fully and completely as if set out herein in their entireties. The headings used herein are for convenience only and shall not affect the meaning or interpretation of this Agreement, nor be taken as a limitation or constriction of the terms hereof.

23. Construction. Each party has read this Agreement, understands this Agreement, and voluntarily enters into this

Agreement with no coercion from any other person, entity, or party. Each party warrants and represents that it has had reasonable time to consult with its attorneys, and has consulted with its attorneys, regarding this Agreement. It is acknowledged, that each party has had substantial input individually, and by their attorneys, into the drafting of this Agreement.

It is therefore, agreed that this Agreement shall not be construed for or against any of the parties based upon the drafter of the ultimate Agreement.

24. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Notwithstanding the foregoing, notices and requests concerning Proposed Change Orders and

Change Orders may be sent via email. Such communications must be sent to the respective parties at the addresses indicated below (or at such other address for a party as shall be specified in a notice given in accordance with this Section).

If to Owner:

[OWNER ADDRESS]

Facsimile:[INSERT FAX NUMBER]

Email: [INSERT EMAIL]

Attention:[INSERT TITLE OF OFFICER TO RECEIVE NOTICES]

With Copy To:

[OWNER ATTORNEY ADDRESS]

Email: [INSERT EMAIL]

Attention: General Counsel

If to Contractor:

[INSERT CONTRACTOR ADDRESS]

Facsimile:[INSERT FAX NUMBER]

Email: [INSERT EMAIL]

Attention: [INSERT TITLE OF OFFICER TO RECEIVE NOTICES]

25. Miscellaneous.

(i) Validity. If any portion of this agreement shall be held invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision, it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.

(ii) Conflict of Interest. The parties shall maintain, and enforce, procedures for the identification, disclosure, and management of any actual, or potential, conflicts of interest. No employee for either party shall have any personal interest, direct or indirect, in this Agreement, nor shall any such employee participate in any decision relating to this Agreement which could reasonably affect his or her personal interests or the interests of any corporation, partnership, or association in which he or she is directly or indirectly interested. Both parties agree to avoid actual, or potential, conflicts of interest or the appearance of any conflicts of interest at all times during the performance of this Agreement. If either party becomes aware of the existence of an actual, or potential, conflict of interest, it shall immediately notify the other party.

(iii) Dispute and Attorneys’ Fees. In any dispute between the parties arising from or relating to the Agreement and which that results in litigation between the parties, the losing party shall reimburse the prevailing party for all reasonable attorneys’ fees incurred by the prevailing party, including, but not limited to, attorneys’ fees incurred by the prevailing party in any post-judgment or post-award proceedings. Notwithstanding any judgment related to this Agreement, this fee-shifting provision shall not be merged into such judgment but shall survive the same and shall be binding and conclusive on the parties for all time. Post-judgment attorneys’ fees and costs incurred related to the enforcement of such judgment related to this Agreement shall be recoverable hereunder in the same or separate actions.

(iv) The parties agree to perform such further acts and execute and deliver such further instruments and documents which may reasonably be required to carry out more effectively the intent and purpose of this Agreement. Time is of the essence.

IN WITNESS WHEREOF, this Agreement has been duly executed by the parties to be effective on the Effective Date.

[INSERT OWNER NAME]

By: __________________________________________

Name: __________________________________________

Title: __________________________________________

Date: __________________________________________

[INSERT CONTRACTOR NAME]

By: __________________________________________

Name: __________________________________________

Title: __________________________________________

Date: __________________________________________

Exhibit A

(Project Drawings and Specifications)

Exhibit B

(Clarifications and Exclusions)

Exhibit C

(Schedule of Values)

Exhibit D

(Project Schedule)

Exhibit E

(Lien Releases and Waivers)