High Performance Earthworks
Service Contract Terms
Should any work be added, deleted, or changed to the Contract, Contract Sum would be subject to change.
1. SCOPE OF AGREEMENT
Subject to the terms of this Contract and, in exchange for payment of the Contract Sum, Contractor shall perform, furnish and pay for all labor, supervision, materials, equipment, tools, supplies and other property and services necessary to timely and fully perform and furnish in a professional manner the services required by the Contract Documents enumerated above (the "Work"). The Work may be amended from time to time, as provided in this contract.
2. TIME OF COMMENCEMENT AND COMPLETION
Contractor shall commence and complete the Work in a timely and professional manner. Contractor agrees that the Contract Sum is sufficient to assure completion of the Work within a reasonable timeframe. Conditions at the job site may delay time completion of the Work. Conditions of this type are enumerated in this contract. Delays caused by these enumerated conditions shall not constitute a breach of this Contract for failure to complete by any Contract deadline. Contractor shall notify the Owner/Builder in writing of the actual work commencement date.
3. TERMINATION
This Contract may be terminated by the Contractor at any time without cause upon thirty (30) days’ written notice to Owner/Builder. This Contract may be terminated by Owner/Builder for any material breach by Contractor of its obligations under this Contract, provided that Owner/Builder has given Contractor advanced written notice of the alleged breach and an opportunity to cure and if Contractor has not cured such breach within seven (7) business days from its receipt of notice of the breach. Upon notice of termination, Contractor shall be promptly paid within seven (7) days under the terms of this contract for all Work provided to Owner/Builder prior to the effective date of termination. Contractor shall similarly promptly return to Owner/Builder any unearned Owner/Builder payments for work not yet performed by Contractor.
4. CONTRACT SUM
In consideration of Contractor's timely performance and furnishment of the Work pursuant to the Contract, Owner/Builder agrees to pay to Contractor, and Contractor agrees to accept from Owner/Builder as full payment for the Work, the sum enumerated above. Contractor shall pay all federal, state and local taxes and levies (including, without limitation, sales, use and excise taxes and levies) applicable to the Work, and the Contract Sum shall not be increased as a result of Contractor paying such taxes and levies. The Contract Sum may be subject to increase or adjustment from time to time as a result of certain events, such as: (1) Contractor being subjected to a 3% or more increase in material or equipment costs due to market fluctuations or supply chain issues, at which time such costs above 3% will be passed to the Owner/Builder; (2) written and agreed-to Change Orders, as defined below; (3) unexpected weather or force majeure events, as discussed below; or (4) other miscellaneous unexpected cost increases not specifically identified herein, to be discussed promptly with Owner/Builder if and when they arise. Contractor will provide written notice as soon as possible of any such increases.
5. PAYMENT OF TIME-AND-MATERIALS CONTRACTS
Unless otherwise determined by Contractor, for TIME-AND MATERIALS contracts, payments on the Contract Sum shall be made as follows:
A) An initial non-refundable $500 scheduling deposit is required to get on the Contractor’s schedule.
B) A retainer payment of one-half of the estimated Contract Sum, or the cost of materials, whichever amount is greater, shall be payable to Contractor shortly prior to mobilization and commencement of Work.
C) Once the Work commences, all additional applications for payment shall be submitted in writing by Contractor to Owner/Builder on a weekly basis. Contractor shall submit to Owner/Builder a payment invoice setting forth the Work completed as of the end of the preceding week. Each weekly invoice shall state the amount Contractor has been paid to date and what is owed as of the date of such invoice. Weekly invoices shall be due and payable immediately, but no later than seven (7) days after receipt.
D) Final payment, constituting the remaining unpaid balance of the Work performed, including change orders, materials and other Contract revisions, shall be paid to Contractor immediately upon Contractor’s completion of the Work, but no later than seven (7) days after receipt of Contractor’s final invoice and request for final payment. Note that all final invoices contain a one-month late fee built into the final balance due. Prompt payment in full of the final balance within seven (7) days of receipt of the final invoice will result in an elimination of this late fee.
E) Owner/Builder must notify Contractor within five (5) days of receipt of the final invoice of any questions or concerns regarding the Work or charges; failure to timely raise questions or concerns will be deemed acceptance of the Work and all invoice charges.
Late payments beyond seven (7) days shall carry interest at 45% APR unless Contractor receives prior written notice from Owner/Builder of a dispute over the terms or balance due under an invoice. Interest begins to accrue once the payment becomes overdue over seven (7) days and runs until the date of payment.
6. PAYMENT OF FIXED BID CONTRACTS
Unless otherwise determined by Contractor, for FIXED BID Contracts, payments on the Contract Sum shall be made as follows:
A) An initial non-refundable $500 scheduling deposit is required to get on the Contractor’s schedule.
B) A payment of one-half of the contract Sum, or the cost of materials, whichever amount is greater, shall be payable Contractor shortly prior to mobilization and commencement of Work.
C) Final payment, constituting the remaining unpaid balance of the Contract Sum, including change orders and other Contract revisions, shall be paid to Contractor immediately upon Contractor’s completion of the Work, but no later than seven (7) days after receipt of Contractor’s final invoice and request for final payment. Note that all final invoices contain a one-month late fee built into the final balance due. Prompt payment in full of the final balance within seven (7) days of receipt of the final invoice will result in an elimination of this late fee.
D). Owner/Builder must notify Contractor within five (5) days of receipt of the final invoice of any questions or concerns regarding the Work or charges; failure to timely raise questions or concerns will be deemed acceptance of the Work and all invoice charges.
7. CHANGE ORDERS
Owner/Builder, at any time after execution of this Contract, shall have the right, by written and signed by Owner/Builder, to a Change Order, to order changes in the Work (including, without limitation, alterations, additions, or deviations or omissions to and from the Work). The ordering of any such changes, regardless of their magnitude, shall in no way invalidate this Contract and such changes shall be governed by the terms of this Contract. Owner/Builder is advised that approval of a change order might result in a delay of the completion of the job. Contractor has the full right and power to refuse to implement any change if Contractor has not received a written and signed Change Order. Contractor’s on-site field staff are not authorized to agree to any Change Orders proposed by Owner/Builder and do not handle customer service issues. Any change orders or work issues should be directed to Contractor’s office.
Contractor shall, within a reasonable time after such request, provide a written estimate to Owner/Builder of: (i) the likely time required to implement the change; (ii) any necessary variations to the fees and other charges; (iii) the likely effect of the Change Order; and (iv) any other impact the Change Order might have on the performance of this Contract.
If a change ordered by a Change Order affects the cost of performing the Work, the Contract Sum shall be adjusted in accordance with the provisions of the Change Work Order.
Contractor reserves the right to charge all rates and fees at one-hundred-fifty percent (150%) of original contract rates on all Change Orders requested by Owner/Contractor that are not considered a necessity to completing the Work defined in this Contract.
8. INSURANCE AND INDEMNITY
Contractor agrees to procure and maintain at its own expense the following insurance coverages: Commercial General Liability Insurance in the amount of $1,000,000.00 each occurrence. Upon written request from Owner/Builder, Contractor shall provide a certification of insurance.
Contractor shall indemnify, defend and hold harmless Owner/Builder and its agents and employees from and against all claims, demands, liens, damages, losses and expenses, including, without limitation, reasonable attorney's fees, arising out of or resulting from the performance (negligent or otherwise) of the Work by Contractor, except for changes resulting from conditions which Contractor has listed under (Contractor's Conditions). The Contractor has specifically limited his liability with respect to those listed conditions and the Owner/Builder accepts responsibility and will not seek indemnity from Contractors for damages arising out of those listed conditions.
Owner/Builder shall indemnify, defend and hold harmless Contractor and its agents and employees from and against all claims, demands, liens, damages, losses and expenses, including, without limitation, reasonable attorney's fees, arising out of or resulting from, against or incurred by Contractor as a direct or indirect result of Owner/Builder: (i) breach of this Contract and/or any addendum and/or any Change Order, (ii) death of or injury to any person, resulting directly or indirectly from the acts or omissions of Owner/Builder, or (iii) from any grossly negligent or willful act of Owner/Builder including grossly negligent errors and omissions.
9. LIMITATION OF LIABILITY
IN NO CIRCUMSTANCE SHALL EITHER PARTY OR THEIR AGENTS BE LIABLE TO THE OTHER FOR PUNITIVE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGE (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENUE, LOST BUSINESS, OR OTHER ECONOMIC LOSS, EVEN IF THE OTHER PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORSEEN SUCH DAMAGES), ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT. Contractor’s total liability under this Contract shall be limited to the price of the Work under the Contract.
10. WARRANTIES
Each party represents and warrants to the other that it is free to enter into this Contract and has no obligations that conflict with or are inconsistent with the obligations stated under this Contract. Each party shall comply with applicable national, state, regional and local laws related to the business of such party. Contractor warrants that the Work provided under this Contract shall be performed with that degree of skill and judgment normally exercised by recognized professional firms performing services of the same or substantially similar nature. Septic installation shall come with a two (2) year guarantee that Contractor’s installation work will be free from defects after completion, or Contractor will repair, and correct work-related errors incurred as a result of Contractor. This warranty is valid within two (2) years from the date of final inspection approval by the applicable government inspecting agency where the system is located. In connection with warranty claim, Owner/Builder must demonstrate that any problems or issues arising are clearly and demonstrably a result of an error caused by Contractor’s installation services. Any defects due to material or manufacturer production, design, or other errors may be covered by an applicable manufacturer warranty and are NOT covered by Contractor. Third party warranties may vary from product to product. It is Owner/Builder’s responsibility to consult the applicable product documentation for specific warranty information. OTHER THAN THE WARRANTIES STATED ABOVE, BOTH PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE.
11. EXCLUSIONS
Unless specifically included in the Work and Contract Bid, not included in the services provided under this contract and therefore the cost for any such items shall be additional, are the following items:
1. Changes for any required bonds
2. Cost of all permits and fees required to perform the job
3. Any required site security fencing and gates
4. Cost of moving any security fencing for others on the job
5. Cost of testing, removal and disposal of hazardous materials found on the site
6. Cost of removing any unsuitable materials above or below sub grades, except those described in any geotechnical report delivered to the company prior to commencement of the Work and of which have been included in the Work
7. Cost of testing soils, materials and compacting
8. Cost of any required traffic supervision, unless otherwise defined in the Work
9. Cost of paving on or off the site
10. Cost of pumping and use of drainage/dewatering systems, unless otherwise defined in the Work
11. Rock breaking, removal and disposal
12. Excavation and backfill required by other trades
13. Sidewalks, landscaping and planting, temporary seeding and mulching of disturbed areas
14. Marking all utilities, pipes and /or cables as well as repair or relocation of any on-site utilities not shown on plans.
15. Private utility location services
16. Signs, guardrails, pavement markings, on site furnishings
17. Additional time and materials required to appropriately respond to winter conditions during work of asphalt, concrete, and earthworks
18. Additional costs to improve or repair at a later date any completed compaction, septic installation, or utility line repair work that is performed between the months of October to the following May
19. Remedying porous fill under slab on grade
20. Any material import or spreading, unless otherwise defined in the Work
21. Snow and/or ice removal
22. Tree, stump and landscape clearing or removal
23. Any additional mobilization fees due to weather or Owner/Builder scheduling conflicts
24. Any material haul away not specifically outlined in the contract bid
25. In the event that access to a neighboring property is needed by Contractor to perform the Work, Owner/Builder shall obtain the necessary approvals from the neighboring person or entity.
26. Any water damage caused by flooding, stormwater, or any other condition outside of the control of Contractor that occurs prior to completion of the Work.
27. Core drilling of foundations
12. CONTRACTOR'S CONDITIONS AND ASSUMPTIONS
The following are assumed to be the case unless Contractor is notified in writing to the contrary:
1. All on-site excavation is suitable for on-site embankments, as indicated by Project geotechnical report.
2. All UST’s and piping have been removed by others.
3. All hazardous materials have been removed by others.
4. No maintenance and traffic protection plan is required.
5. All permits, fees, road opening permits, soil removal permits are to be obtained and paid for by others.
6. Owner/Builder will provide a timely update of the project schedule to the contractor.
7. Contractor will provide pavement patching for Contractor’s work only.
8. Owner/Builder is responsible for providing all onsite survey location markings.
9. Unless part of Contractor’s scope of work, Owner/Builder is responsible for having all utilities, pipes, and cable clearly marked prior to commencing the Work.
10. Owner/Builder shall provide Contractor with approved access to the job site for the equipment needed for the performance of the Contract.
13. DUST AND DISTURBANCES
Virtually all construction work creates dust and Contractor shall not be deemed responsible for any dust generated as a result of its Work. Owner/Builder accepts that some disturbance of ground near excavation will occur as a result of normal operation of equipment. Repairs to items such as landscaping caused by ground disturbance are not included unless separately priced as a part of the excavation contract.
14. SUBCONTRACTOR OR INDEPENDENT CONTRACTORS
In its sole and absolute discretion, Contractor shall be free to engage any subcontractor or independent contractors of its choosing (including affiliates of Contractor) to provide any Work.
15. PROJECT TIMELINE AND DELAYS
Contractor cannot make any guarantees on the project timeline. Contractor will notify the Owner/Builder within one week (seven days or less) of the commencement date of the Project. Contractor shall not be responsible for any delays to the commencement, progress or completion of the Work due to actions or events outside of the control of Contractor, including, but not limited to: inaccessibility of materials or supplies and their delivery schedules, poor geological conditions, mechanical damage or breakdowns, staffing issues, delays of other contractors, required inspections, or failure of Owner/Builder to make decisions or to timely communicate. Owner/Builder shall be responsible for any added costs incurred by Contractor as a result of delays outside of Contractor’s control. Contractor shall provide the Owner/Builder with reasonable and regular notice when the Project commencement, progress, or completion dates must be altered or changed due to unforeseeable delays.
Contractor will also be permitted delays for weather conditions, based on the concurrence of Contractor and Owner/Builder or Engineer, for two circumstances: 1) isolated inclement weather, wherein the project site is determined to be unworkable for days of precipitation and days following for short times between otherwise good weather; and 2) sustained inclement weather, wherein the project site is determined to be unworkable for a sustained period of time, such as in winter conditions, with only an occasional working day within the sustained unworkable conditions. In the event Contractor determines that the Project requires additional time or resources due to severe weather conditions, the Contractor shall notify the Owner/Builder immediately of this necessity in writing and Owner/Builder thereby agrees to be billed on a time-and-materials basis for the additional time and resources required to preserve the progress of the Work. Owner/Builder shall be responsible for extra costs incurred due to weather events, including but not limited to damaged, lost, or additional materials.
16. FORCE MAJEURE
Neither party shall be liable for a delay in performance of their obligations and responsibilities under this Contract due to causes beyond their control, and without their fault or negligence, such as, but not limited to: war, embargo, pandemic, national emergency, insurrection or riot, acts of the public enemy, fire, flood or other natural disaster, provided that said party has taken reasonable measures to notify the other party promptly in writing, of such delay (but in any event, within 48 hours of the force majeure event).
17. HIDDEN CONDITIONS AND DEFECTS ("EXISTING CONDITIONS")
Contractor will use its best efforts to discover any hidden existing conditions prior to the commencement of construction. However, any hidden existing conditions or defects at the worksite not reasonably discoverable prior to the commencement of construction which in any way interfere with the safe and satisfactory completion of the Work will be corrected at additional expense to the Owner/Builder by Change Order.
18. SEVERABILITY
If any term or provision of this Contract is prohibited by the laws of the State of Colorado or declared invalid or void by a court of competent jurisdiction, the remainder of this Contract shall not be affected thereby and each term and provision of this Contract shall be valid and enforceable to the fullest extent permitted by law.
19. NOTICES
All notices hereunder must be in writing. Any notice required or permitted to be delivered hereunder shall be deemed delivered, whether actually received or not (i) when sent by Fedex or equivalent overnight service or (ii) when deposited in the United States Mail, postage prepaid, Registered or Certified Mail, Return Receipt Requested, addressed to the parties hereto at the respective addresses set out above, or at such other addresses as they have heretofore specified by written notice delivered in accordance herewith.
20. DISPUTE RESOLUTION
The parties to this Contract establish this dispute resolution section to resolve any misunderstanding, concern, dispute, or question about this Contract and/or the related construction work, in a prompt, efficient, and cost-effective framework. The first, if any, attempt at resolution will be by an agreed-upon mediator. If the result of mediation is unsatisfactory to either party, the dispute will be subject to binding arbitration.
21. MEDIATION
Should there be any misunderstanding, concern, dispute, or question about this Contract and/or the related construction work, the parties agree first to try in good faith to resolve the dispute by mediation with a neutral mediator, selected upon mutual agreement, that is knowledgeable and familiar with the professional building industry with at least ten years’ experience in the field of residential construction. If a mediation organization was required, rather than an individual, it would be necessary for at least one member of this organization to satisfy the preceding criteria. The mediation would be governed by the Construction Mediation Rules of the American Arbitration Association. The parties shall share the cost of the mediator. The mediation shall be treated as a settlement discussion and shall therefore be confidential and may not be used against either party in any later proceeding relating to the dispute. Such mediation shall be completed within 45 days of the demand for mediation made by either party upon the other, unless otherwise agreed to by the parties.
22. ARBITRATION
In the event such mediation does not result in settlement of the dispute, then any disputes and claims will be settled through binding arbitration, though either party may bring a lawsuit for specific performance or injunctive relief. The arbitration proceeding will be held in Boulder County, Colorado, and conducted by a single arbitrator under the Commercial Rules of the American Arbitration Association. The parties will jointly select the arbitrator; if the parties cannot agree; the American Arbitration Association shall select the arbitrator. The decision and award, if any, will be final, binding, and not subject to judicial review. The costs of arbitration shall be borne by the party that incurs them, and the arbitration and arbitrator fees will be shared evenly by the parties.
23. CONSENT TO USE OF PROJECT IMAGES
Owner/Builder understands and agrees that Contractor shall be permitted to use photos of their Work for advertising and marketing purposes, including on Contractor’s website and in social media, unless Owner/Builder notifies Contractor otherwise in writing.
24. EXECUTION
This Contract may be executed by use of an electronic signature process.
