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Contractor Terms

This agreement (“Agreement”) is entered into by and between Pura Vida, LLC (“Owner”) and contractor (“Contractor”) who entered into an agreement with Owner by beginning performance for certain construction in response to Owner’s offer via email (“Confirming Email”) for the project identified in the Confirming Email (“Project”). Owner and Contractor are collectively referred to as the “Parties” and are individually referred to as a “Party.”

1. Contract Documents.  The Agreement shall consist of the following documents (“Contract Documents”): A) the Agreement; B) the plans and specifications (“Plans and Specifications”) provided by Owner; C) the Confirming Email; and D) the project schedule provided by Owner (“Project Schedule”).  The Contract Documents represents the entire and integrated agreement between the Parties, and supersedes all prior negotiations, representations, or agreements, either written or oral. 

2. Scope of Work.  Contractor agrees to furnish all labor, material, equipment, and permits to provide the improvements (the “Work”) at the Project identified in the Confirming Email in accordance with the Contract Documents.

3. Contract Price.   As full compensation for performance by Contractor of the Work, Owner agrees to pay Contractor the lump-sum price as set forth in the Confirming Email for all Work, including all labor, material, equipment, permits, taxes, and licenses necessary to complete the Work. 

4. Contract Time.  The Contractor acknowledges that time is of the essence.  Contractor agrees to immediately commence its Work upon receiving notice to proceed from Owner, and all Work shall be performed in accordance with the Project Schedule.

5. Payment Terms.  Upon Contractor’s completion of its Work in accordance with the Contract Documents and to Owner’s satisfaction, Owner agrees to pay Contractor the Contract Price in three payments: A) 50 percent of the Contract Price at 50 percent completion; B) 40 percent of the Contract Price at substantial completion; and C) 10 percent of the Contract Price at final completion.   Owner will pay Contractor each payment within ten business days of completion of each phase, provided that, and as a condition precedent to payment, Contractor submits: A) a detailed Payment Application consistent with the AIA G702 and 703 form; B)completed lien waivers from Contractor; and C) completed lien waivers from each of Contractor’s subcontractors, laborers, and suppliers. Owner may deduct from any payment owed to Contractor any costs or fees incurred by Owner due to any breach by Contractor or otherwise due to any fault of Contractor. Moreover, Owner may withhold any payments due or to become due to Contractor to protect itself as it deems necessary against possible loss or damage arising in any way out of Contractor’s Work or fault, including, but not limited to, construction defects, third-party claims, and failures or alleged failures of Contractor to make payments to subcontractors or suppliers.  Contractor agrees that Owner’s payment of Contractor’s Payment Application constitutes a waiver of all claims by Contractor against Owner at the time the Payment Application is submitted, including for alleged changes, extras, differing site conditions, price escalation, delays, disruptions, inefficiencies, interference, and cumulative impact.   

6. Quality of Work.  Contractor agrees to perform and furnish all Work in a good and workmanlike manner, free from defects, and in accordance with all applicable laws, building codes, and industry standards. Contractor further agrees that all materials and equipment furnished by Contractor shall be new (unless otherwise specified in writing), of good quality, in conformance with the Contract Documents, and free from defects. Contractor accepts the risk of price escalation in material, equipment, and labor, and accepts full responsibility for any such escalation. 

7. Warranties.  Contractor expressly warrants for a period of two years from the date of final completion of the Project that all Work shall be performed in a good and workmanlike manner, free from defects, and in accordance with all applicable laws, building codes, and industry standards, and that all materials and equipment furnished by Contractor shall be new (unless otherwise specified in writing), of good quality, in conformance with the Contract Documents, and free from defects.  Without limiting Owner’s other rights, within five days of notice from Owner of a breach of this warranty, Contractor will correct the breach to ensure that all Work complies with the requirements of the warranty. 

8. Insurance.  Before commencing the Work and as a condition precedent to payment, Contractor shall procure and maintain Workers’ Compensation Insurance, Business Automobile Liability Insurance, and Commercial General Liability (“CGL”) Insurance in the amount of $1,000,000 per occurrence and $2,000,000 aggregate (without a deductible or self-insured retention). The CGL Policy shall include coverage for liability arising from premises, operations, independent contractors, products-completed operations hazards, personal injury, advertising liability, contractual liability, and broad-form property damage. Contractor shall maintain completed operations coverage for six years after completion of the Work. Contractor shall name Owner, and Owners members and employees, as additional insureds on the CGL policy to the same extent that Contractor is required to maintain coverage, including for completed and ongoing operations.  If requested, Contractor shall provide Owner with a Certificate of Insurance proving the contractually required coverage; however, Contractor’s furnishing of a Certificate of Insurance or Owner’s decision to not request a copy does not in any way limit Contractor’s obligations under this paragraph to maintain the contractually required insurance. 

9. Indemnification.  Contractor agrees to defend, hold harmless, and indemnify Owner and its members and employees from and against any and all claims, damages, liabilities, fees, and costs, including all attorney fees, costs, and expenses, that in any way arise out of or are in any way related to the Work or Contractor’s or its subcontractors’ negligence and/or breaches, provided that Owner was not the sole cause of the claims, damages, liabilities, fees, and costs.  Contractor agrees that its defense and indemnification obligations respectively entail paying and reimbursing for the fees and costs of attorneys solely chosen by Owner. 

10. Delays.  Any request by Contractor to extend the time for completion of the Work must be in writing and state the grounds for the request.  If the prosecution or completion of Contractor’s Work shall be delayed because of fire, earthquake, cyclones, casualties, or events of like nature, or causes wholly beyond the control and without the fault or negligence of Contractor, or its subcontractors or suppliers, and which were not foreseeable by Contractor at the time the parties entered into this Agreement, Contractor shall, within five days after the commencement of any such delay, give to Owner written notice of delay and of the anticipated results of the delay. Within five days after the termination of any such delay, Contractor shall file a written notice with Owner specifying the actual duration of the delay. Failure to give either of the above notices shall be grounds for denial of an extension of time and constitute a waiver by Contractor. If Owner determines that the delay was beyond the control and without the fault or negligence of Contractor, or Contractor’s subcontractors or suppliers, and not foreseeable by Contractor or Owner at the time the parties entered into the Agreement, and provided that Contractor provides timely notice, Owner shall determine the duration of the delay and may extend the Contract Time. Contractor hereby waives recovery for any damages suffered by reason of any delays, disruptions, inefficiencies, interference, differing site conditions, cumulative impacts, and price escalation, and/or waives any right to an increase in the Contract Price due to any such events, regardless of the fault of Owner, and acknowledges that its sole and exclusive remedy for any such events is an increase in the Contract Time.  

11. Governing Law.  The Parties agree that all terms in this Agreement and all disputes arising out of this Agreement shall be governed by Colorado law. 

12. Liens.  If any of Contractor’s subcontractors or suppliers files a lien on the Project, Contractor agrees to procure a bond to replace the security of the lien on the Project within five days of the filing of the lien. If Contractor fails to procure this bond, Owner may procure the bond and back charge the Contractor for any fees, costs, and premiums incurred by Owner to remove or otherwise address the lien.

13. No Assignment.  Contractor shall not assign the Agreement or any part of this Agreement, including an assignment of rights, a delegation of obligations, and/or an assignment of claims and/or damages for breach of this Agreement.  Any attempt to assign rights, obligations, or damages shall be null and void, and Contractor agrees to defend and indemnify Owner for any claims asserted as an assignment against Owner. 

14. Termination.  Owner may terminate theAgreement for causeif Contractor: A) refuses or fails to supply enough properly skilled workers or proper materials; B) fails to make timely payments to subcontractors or suppliers; C) disregards applicable laws, statutes, ordinances, rules, codes, or regulations; D) fails to maintain the Construction Schedule; E) performs faulty workmanship; and/or F) otherwise breaches the Agreement.  When any of the above reasons exist for termination for cause, Owner may: A) exclude Contractor from the Project; B) hire Contractor’s subcontractors directly to perform the Work; C) complete the Work; D) setoff any payments owed by Owner to Contractor by any costs and fees, including attorney fees, incurred by Owner to complete the Work and/or because of Contractor’s breach; and/or E) recover any additional damages against Contractor for the breach, including financing damages, costs to complete the Work, and other direct and consequential damages.  Additionally, Owner may, at any time, terminate the Agreement for the Owner’s convenience and without cause.  Upon receipt of written notice from Owner of such termination for Owner’s convenience, Contractor shall: A) cease operations as directed by Owner in the notice; B) tale actions necessary, or that Owner may direct, for the protection and preservation of the Work; and C) except for the Work directed to be performed prior to the effective date of termination stated in the notice, terminate all existing subcontracts and purchase orders and enter into no further subcontracts or purchase orders.  In case of such termination for Owner’s convenience, Contractor shall only be entitled to receive payment for the Work executed by the time of the termination.  Contractor shall flow this provision down to all subcontracts and purchase orders. 

15. Suspension.  Owner may, at any time and without cause, order Contractor in writing to suspend or interrupt the Work in whole or in part for such period of time as Owner may determine, without adjustment to the Contract Price. 

16. Changes and Extras.  The Parties agree that Owner may, at any time, direct in writing a change, extra, or deduction to the Work. The Parties shall execute a change order reflecting all increases or decreases to the Contract Price or Contract Time. To the extent that the Parties cannot agree to the change in the Contract Price or Contract Time, then the Contract Price shall be changed as determined by Owner, and Contractor may submit to Owner a written claim within five days of the amount by which it claims the Contract Price and Time should be changed. Contractor agrees that no claim for extra compensation or time shall be valid unless Contractor provides Owner with written notice of the claim not later than 5 days after the event giving rise to the claim occurred, otherwise Contractor waives such claim. 

17. Consequential Damages and Liability Limitation.  Contractor waives any right it has or may have to consequential damages from Owner, including, but not limited to, damages for lost profits from other projects, financing damages, and damages owed to third parties.  To the extent Contractor is entitled to damages from Owner, Contractor’s damages shall be limited to the Contract Price less any payments made by Owner to Contractor. 

18. Dispute Resolution.  If Owner provides written notice to Contractor demanding arbitration, then the parties agree to participate in arbitration administered by the American Arbitration Association (“AAA”) and conducted in accordance with the AAA Construction Industry Arbitration Rules in Denver, Colorado, and such award by the arbitrator shall be final and binding, and the parties may be confirmed with any court having jurisdiction. If Owner does not elect arbitration, then the venue of any dispute shall be in the appropriate court in Denver, Colorado. During any dispute between the Parties, Contractor agrees to continue to perform its Work. 

19. Liquidated Damages.  The Parties agree that time for completion is of the essence, and that Owner will suffer substantial damages if Contractor’s work is not timely completed. The Parties also recognize that there would be difficulties proving the exact damages suffered by Owner as a result of Contractor’s failure to timely complete its work.  As such, the Parties agree that as liquidated damages for Contractor’s failure to timely complete its work, Contractor shall be liable to Owner for 10% of the Contract Price for each day that Contractor fails to timely complete its work. The Parties deem these liquidated damages to be a reasonable estimate of Owner’s actual damages. 

20. Attorney Fees and Costs.  Contractor agrees to reimburse Owner for any and all attorney fees and costs, including expert fees and costs, incurred by Owner due to Contractor’s breach or fault, including those fees and costs incurred in Owner’s litigation or arbitration against Contractor.