Construction Contract - Missouri

CONSTRUCTION SERVICES AGREEMENT

(State of Missouri)

TABLE OF CONTENTS

1. Article 1 – Document Header
2. Article 2 – Definitions
3. Article 3 – Scope of Work & Performance Standards
4. Article 4 – Contract Price; Payment; Retainage
5. Article 5 – Time of Performance; Delays; Force Majeure
6. Article 6 – Site Matters; Changes in the Work
7. Article 7 – Representations & Warranties
8. Article 8 – Covenants & Compliance Obligations
9. Article 9 – Risk Allocation
10. Article 10 – Default & Remedies
11. Article 11 – Dispute Resolution
12. Article 12 – General Provisions
13. Article 13 – Execution Block
14. Exhibit A – Scope of Work and Specifications
15. Exhibit B – Statutory Lien Notices (Mo. Rev. Stat. § 429.012)
16. Exhibit C – Payment Bond Form (optional)

ARTICLE 1 DOCUMENT HEADER

1.1 Agreement. This Construction Services Agreement (“Agreement”) is made and entered into as of [EFFECTIVE DATE] (the “Effective Date”) by and between:

a. [OWNER LEGAL NAME], a [state & entity type] (“Owner”), whose principal place of business is [OWNER ADDRESS]; and
b. [CONTRACTOR LEGAL NAME], a [state & entity type] (“Contractor”), whose principal place of business is [CONTRACTOR ADDRESS].

Owner and Contractor are each a “Party” and together the “Parties.”

1.2 Recitals.
a. Owner owns or controls the real property located at [PROJECT ADDRESS OR LEGAL DESCRIPTION] (the “Site”).
b. Owner desires that Contractor furnish all labor, materials, equipment, and services necessary to complete the work described in Exhibit A (the “Work”).
c. Contractor represents that it is qualified to perform the Work and will obtain and maintain each license or permit required for the particular Work and its location, including any applicable local license or trade-specific credential, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual promises herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows.

ARTICLE 2 DEFINITIONS

2.1 “Applicable Law” means all federal, state, and local statutes, codes, ordinances, regulations, and orders of any governmental authority having jurisdiction over the Parties, the Work, or the Site.

2.2 “Change Order” has the meaning set forth in Section 6.2.

2.3 “Completion” means Substantial Completion and Final Completion, as defined in Sections 5.3 and 5.4, respectively.

2.4 “Contract Documents” means this Agreement, Exhibits A–C, any Change Orders, and the Project schedule.

2.5 “Contract Price” means the amount set forth in Section 4.1, as adjusted by Change Orders.

2.6 “Force Majeure Event” has the meaning set forth in Section 5.6.

2.7 “Lien Law” means Mo. Rev. Stat. § 429.005 et seq., as amended.

2.8 “Retainage” means the portion of each Progress Payment withheld pursuant to Section 4.4.

2.9 “Subcontractor” means any person or entity engaged by Contractor to perform any portion of the Work.

ARTICLE 3 SCOPE OF WORK & PERFORMANCE STANDARDS

3.1 Scope of Work. Contractor shall perform the Work in strict accordance with the Contract Documents.

3.2 Standard of Care. Contractor shall perform the Work in a good and workmanlike manner, consistent with industry standards and Applicable Law.

3.3 Supervision & Labor. Contractor shall be solely responsible for supervision, means, methods, techniques, sequences, and procedures.

3.4 Permits & Licenses. Except as expressly provided otherwise in Exhibit A, Contractor shall obtain and pay for all permits, licenses, and inspections.

3.5 Safety. Contractor shall comply with all safety laws and maintain a safety program for protection of persons and property at the Site.

ARTICLE 4 CONTRACT PRICE; PAYMENT; RETAINAGE

4.1 Contract Price. Owner shall pay Contractor the lump-sum amount of [INSERT AMOUNT] (the “Contract Price”) for full performance of the Work, subject to additions and deductions by Change Order.

4.2 Schedule of Values & Invoices. Contractor shall submit a Schedule of Values and monthly Applications for Payment in a form reasonably acceptable to Owner.

4.3 Progress Payments. Within [NUMBER] days after Owner’s receipt of a complete Application for Payment, Owner shall pay the undisputed amount thereof, less Retainage.

4.4 Retainage. Owner shall withhold ten percent (10 %) of each Progress Payment (the “Retainage”) until fifty percent (50 %) of the Work is completed; thereafter, Retainage shall not exceed five percent (5 %) of subsequent Progress Payments, and Retainage on Work satisfactorily completed shall be released with the next Progress Payment. If Mo. Rev. Stat. §§ 436.300–436.336 apply to this Project, Owner shall release all remaining Retainage within thirty (30) days after statutory substantial completion, except an amount no greater than one hundred fifty percent (150 %) of the cost to finish remaining items. Statutory substantial completion occurs at the earlier of an architect's or engineer's certificate issued under the Contract Documents or Owner's acceptance of performance of the full Contract. Owner shall release the permitted holdback as the remaining items are completed. Sections 436.300–436.336 do not apply to single-family residential construction or other residential construction of four or fewer units; for those projects, Owner shall release remaining Retainage upon Final Completion under this Agreement.

4.5 Final Payment. Final Payment of the Contract Price, excluding Retainage due earlier under Section 4.4, shall be due within [NUMBER] days after: (i) Final Completion; (ii) submission of final lien waivers from Contractor and all Subcontractors and suppliers; and (iii) delivery of all warranties, as-built drawings, and close-out documents. The [NUMBER] day period and close-out conditions do not extend a Retainage release deadline under Section 4.4.

4.6 Prompt Payment & Interest. Undisputed amounts not paid when due shall bear interest at [RATE]% per annum, not to exceed the maximum lawful rate.

4.7 Optional Payment Bond. If a payment bond is furnished under Section 8.2, the parties shall identify its surety, amount, beneficiaries, and claim procedure in Exhibit C. This clause does not waive any lien rights.

ARTICLE 5 TIME OF PERFORMANCE; DELAYS; FORCE MAJEURE

5.1 Commencement. Contractor shall commence the Work on [COMMENCEMENT DATE] (the “Commencement Date”).

5.2 Substantial Completion. Contractor shall achieve Substantial Completion no later than [DATE/NUMBER OF DAYS] after the Commencement Date.

5.3 Substantial Completion Defined. “Substantial Completion” occurs when the Work is sufficiently complete so that Owner can occupy or utilize the Project for its intended use, subject only to minor punch-list items.

5.4 Final Completion. “Final Completion” occurs when all punch-list items are completed and all Contract Documents fully performed.

5.5 Liquidated Damages (Optional). If Contractor fails to achieve Substantial Completion by the required date, Contractor shall pay Owner liquidated damages of $[AMOUNT] per calendar day, which the Parties agree represents a reasonable pre-estimate of Owner’s damages.

5.6 Force Majeure. Neither Party shall be liable for delays caused by a Force Majeure Event, defined as fire, flood, epidemic, acts of God, war, terrorism, governmental orders, or other causes beyond the affected Party’s reasonable control, provided that the affected Party gives written notice within five (5) business days after becoming aware of the event. The Completion dates shall be equitably adjusted for the period of delay.

ARTICLE 6 SITE MATTERS; CHANGES IN THE WORK

6.1 Site Conditions. Contractor has visited the Site, become generally familiar with local conditions, and correlates its observations with the Contract Documents.

6.2 Change Orders. No change, addition, or deletion to the Work or the Contract Price shall be binding unless set forth in a written change order executed by both Parties (“Change Order”).

6.3 Concealed Conditions. If concealed or unknown conditions differ materially from those indicated in the Contract Documents, Contractor shall notify Owner within two (2) business days. An equitable adjustment shall be made by Change Order.

ARTICLE 7 REPRESENTATIONS & WARRANTIES

7.1 Contractor’s Representations. Contractor represents and warrants that, as of the Effective Date and continuing through Final Completion:

a. It holds all required licenses;
b. It is financially solvent and able to perform the Work;
c. The Work will be free from defects in workmanship and materials for a period of one (1) year from Final Completion (the “Warranty Period”); and
d. The Work will comply with Applicable Law and the Contract Documents.

7.2 Survival. The warranties in this Article 7 shall survive Final Payment and completion of the Work.

ARTICLE 8 COVENANTS & COMPLIANCE OBLIGATIONS

8.1 Insurance. Contractor shall maintain, at its sole expense, insurance of the types and minimum limits set forth below and shall furnish certificates evidencing such coverage prior to commencing the Work:

a. Commercial General Liability: $[AMOUNT] per occurrence;
b. Automobile Liability (Any Auto): $[AMOUNT] combined single limit;
c. Workers’ Compensation: statutory limits;
d. Employer’s Liability: $[AMOUNT]; and
e. [Other project-specific coverages].

8.2 Bonding (Optional). Upon Owner’s written request, Contractor shall furnish a performance bond and a payment bond, each in the amount of the Contract Price, on the form attached as Exhibit C.

8.3 Lien Notice Compliance. Contractor shall deliver the “NOTICE TO OWNER” in Exhibit B before receiving any payment from Owner, at one of the times permitted by Mo. Rev. Stat. § 429.012.1: contract execution, material delivery, work commencement, or with the first invoice. Contractor shall secure and maintain executed lien waivers from Subcontractors and suppliers as a condition precedent to each Progress Payment.

8.4 Payroll Taxes & Contributions. Contractor shall pay all payroll taxes, unemployment insurance, and other contributions required by law with respect to the Work.

8.5 Records & Audit Rights. Contractor shall keep true and correct books and records relating to the Work for a period of three (3) years after Final Completion and shall permit Owner reasonable access for audit purposes.

ARTICLE 9 RISK ALLOCATION

9.1 Indemnification by Contractor. To the fullest extent permitted by Applicable Law, Contractor shall defend, indemnify, and hold Owner, its affiliates, and their respective officers, directors, employees, and agents (collectively, the “Indemnitees”) harmless from and against any and all claims, damages, losses, liabilities, penalties, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to:

a. Bodily injury, sickness, disease, or death of any person;
b. Damage to or loss of use of property;
c. Violation of Applicable Law; or
d. Mechanics’ lien claims asserted by Subcontractors or suppliers,

to the extent caused by the negligence, recklessness, or willful misconduct of Contractor, its Subcontractors, or anyone for whom Contractor is responsible.

9.2 Limitation of Liability. Notwithstanding anything to the contrary, Contractor’s aggregate liability to Owner for all claims arising under this Agreement shall not exceed the Contract Price; provided, however, that this limitation shall not apply to (i) Contractor’s indemnification obligations under Section 9.1, (ii) claims for gross negligence or willful misconduct, or (iii) amounts covered by insurance.

9.3 Waiver of Consequential Damages. Except for liquidated damages expressly provided herein, neither Party shall be liable to the other for consequential, incidental, or punitive damages.

9.4 Mechanics’ Liens.

a. Right to Withhold. If any lien is recorded or a lien notice served in connection with the Work, Owner may withhold from any payment then or thereafter due an amount sufficient to secure the release of such lien.
b. Discharge. Within ten (10) days after notice, Contractor shall (i) cause the lien to be released, (ii) bond around the lien, or (iii) otherwise secure Owner to Owner’s reasonable satisfaction.

ARTICLE 10 DEFAULT & REMEDIES

10.1 Events of Default. The following constitute a “Contractor Default”:

a. Failure to prosecute the Work diligently;
b. Failure to pay Subcontractors or suppliers;
c. Failure to comply with Applicable Law or a material term of this Agreement.

10.2 Notice & Cure. Owner shall give Contractor written notice of default. Contractor shall have seven (7) days (or such shorter period as required in an emergency) to cure.

10.3 Owner Remedies. If Contractor fails to cure within the stated period, Owner may, without prejudice to other remedies:

a. Terminate the Agreement for cause upon written notice;
b. Complete or correct the Work and back-charge Contractor for all costs;
c. Withhold further payments; and/or
d. Seek any other remedy available at law or in equity.

10.4 Suspension for Convenience. Owner may, upon ten (10) days’ written notice, suspend all or part of the Work for Owner’s convenience. Contractor shall be entitled to a Change Order for reasonable demobilization and remobilization costs and schedule extensions.

10.5 Termination for Convenience. Owner may terminate this Agreement for convenience upon fourteen (14) days’ written notice. Contractor shall be paid (i) the cost of Work performed to date, (ii) retainage on such Work, and (iii) reasonable termination costs, but no anticipatory or lost profits.

ARTICLE 11 DISPUTE RESOLUTION

11.1 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Missouri, without regard to conflict-of-laws principles.

11.2 Forum Selection. The Parties irrevocably submit to the exclusive jurisdiction of the state courts located in [COUNTY], Missouri.

11.3 Arbitration (Optional). At the election of [OWNER/CONTRACTOR/EITHER PARTY] made by written notice within thirty (30) days after the dispute arises, any claim shall be resolved by binding arbitration administered by the American Arbitration Association in accordance with its Construction Industry Arbitration Rules. Judgment on the award may be entered in any court of competent jurisdiction.

11.4 Jury-Trial Waiver (Optional). TO THE EXTENT NOT PROHIBITED BY LAW, EACH PARTY HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF THIS AGREEMENT.

11.5 Injunctive Relief. Either Party may seek temporary, preliminary, or permanent injunctive relief in a court of competent jurisdiction to preserve the status quo or prevent irreparable harm.

11.6 Attorneys’ Fees. The prevailing Party in any dispute shall be entitled to recover its reasonable attorneys’ fees and costs.

ARTICLE 12 GENERAL PROVISIONS

12.1 Entire Agreement. This Agreement, together with the Contract Documents, constitutes the entire agreement between the Parties and supersedes all prior negotiations and understandings.

12.2 Amendments & Waivers. No amendment or waiver shall be effective unless in writing and signed by the Party against whom enforcement is sought.

12.3 Assignment. Neither Party may assign this Agreement without the prior written consent of the other, except that Owner may assign to a lender providing construction financing upon notice to Contractor.

12.4 Severability. If any provision is held invalid, the remaining provisions shall remain in full force to the maximum extent permitted by law.

12.5 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original. Signatures transmitted electronically or by facsimile shall be deemed original.

12.6 Notices. All notices shall be in writing and delivered by hand, reputable overnight courier, or certified mail (return receipt requested) to the addresses set forth above (or such other address as a Party may designate).

12.7 Relationship of the Parties. Contractor is an independent contractor. Nothing herein creates a partnership, joint venture, or agency relationship.

12.8 Survival. Provisions that by their nature should survive termination or expiration shall so survive, including Articles 7, 9, 10, 11, and Sections 4.6, 12.1–12.8.

ARTICLE 13 EXECUTION BLOCK

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

[If Section 11.3 is retained, keep the following warning in at least 10-point capital letters immediately above the signature spaces. If arbitration is excluded, remove Section 11.3 and this warning.]

THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.

OWNER:
[OWNER LEGAL NAME]
By: ________________________________
Name: ______________________________
Title: _______________________________
Date: _______________________________

CONTRACTOR:
[CONTRACTOR LEGAL NAME]
By: ________________________________
Name: ______________________________
Title: _______________________________
Date: _______________________________

[NOTARY BLOCKS OR WITNESS SIGNATURES IF REQUIRED BY APPLICABLE LAW]

EXHIBIT A SCOPE OF WORK AND SPECIFICATIONS

[Attach detailed plans, drawings, and performance specifications.]

EXHIBIT B STATUTORY LIEN NOTICE

NOTICE TO OWNER

FAILURE OF THIS CONTRACTOR TO PAY THOSE PERSONS SUPPLYING MATERIAL OR SERVICES TO COMPLETE THIS CONTRACT CAN RESULT IN THE FILING OF A MECHANIC'S LIEN ON THE PROPERTY WHICH IS THE SUBJECT OF THIS CONTRACT PURSUANT TO CHAPTER 429, RSMO. TO AVOID THIS RESULT YOU MAY ASK THIS CONTRACTOR FOR "LIEN WAIVERS" FROM ALL PERSONS SUPPLYING MATERIAL OR SERVICES FOR THE WORK DESCRIBED IN THIS CONTRACT. FAILURE TO SECURE LIEN WAIVERS MAY RESULT IN YOUR PAYING FOR LABOR AND MATERIAL TWICE.

Deliver this disclosure in at least 10-point bold type to the person who contracts with Contractor, or to Owner if there is no contract, at a time permitted by Mo. Rev. Stat. § 429.012.1 and before receiving payment. Preserve proof of delivery.

EXHIBIT C PAYMENT BOND (OPTIONAL)

[Attach the payment bond form if Owner requests one under Section 8.2. Identify the surety, bond amount, protected claimants, and claim procedure.]