CONSTRUCTION SERVICES AGREEMENT

(Montana – Private Project)

[// GUIDANCE: This template is drafted for private commercial and residential projects located in Montana. For public-works contracts, additional statutory bonding, procurement, and retainage rules apply under the Montana “Little Miller Act” and related provisions. Practitioners should tailor this Agreement accordingly.]

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Operative Provisions
   3.1 Scope of Work
   3.2 Contract Time
   3.3 Contract Price & Payment
   3.4 Lien-Law Compliance
   3.5 Conditions Precedent & Subsequent
4. Representations & Warranties
5. Covenants & Restrictions
6. Default & Remedies
7. Risk Allocation
8. Dispute Resolution
9. General Provisions
10. Execution Block

1. DOCUMENT HEADER

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

• [OWNER LEGAL NAME], a [STATE] [ENTITY TYPE] having its principal place of business at [ADDRESS] (“Owner”); and
• [CONTRACTOR LEGAL NAME], a [STATE] [ENTITY TYPE] having its principal place of business at [ADDRESS] (“Contractor”).

Recitals

A. Owner owns or controls certain real property located at [PROJECT ADDRESS / LEGAL DESCRIPTION] in the State of Montana (the “Site”).
B. Owner desires that Contractor furnish all labor, materials, equipment, and services necessary to complete the Work (as defined below) in accordance with the Contract Documents (collectively, the “Project”).
C. Contractor is duly licensed and qualified to perform such Work in the State of Montana and is willing to do so under the terms and conditions set forth herein.

In consideration of the mutual covenants and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:

2. DEFINITIONS

The following capitalized terms have the meanings set forth below. Defined terms include the plural as well as the singular and references to one gender include all genders.

“Affiliate” – Any entity that directly or indirectly controls, is controlled by, or is under common control with a Party.
“Applicable Law” – All statutes, regulations, ordinances, building codes, licensing requirements, and common-law duties applicable to the Project, including the Montana Construction Lien Act, Mont. Code Ann. Title 71, ch. 3, part 5.
“Change Order” – A written modification to the Contract Documents, executed by both Parties, altering the Work, Contract Price, Contract Time, or other terms.
“Contract Documents” – This Agreement, the Plans and Specifications, all approved Change Orders, and any other attachment or exhibit expressly incorporated herein.
“Contract Price” – The not-to-exceed sum of $[CONTRACT PRICE], subject to adjustments pursuant to this Agreement.
“Contract Time” – The period beginning on the Commencement Date and ending on Final Completion, as may be adjusted by Change Order.
“Final Completion” – The stage when (a) the Work is fully performed in accordance with the Contract Documents, (b) all punch-list items are completed, (c) all close-out deliverables are delivered, and (d) all obligations under Section 3.3.5 are satisfied.
“Lien” – Any mechanic’s, laborer’s, materialman’s, or construction lien, or similar security interest arising out of labor or materials provided for the Project.
“Notice of Right to Claim a Lien” (“Lien Notice”) – The statutory notice described in Mont. Code Ann. § 71-3-535.
“Plans and Specifications” – The stamped drawings, technical specifications, and written narratives prepared by [ARCHITECT/ENGINEER] dated [DATE], as may be amended by Change Order.
“Substantial Completion” – The stage in the progress of the Work when the Project is sufficiently complete, in accordance with the Contract Documents, to permit Owner to occupy or use the Project for its intended purpose, as evidenced by issuance of a certificate of substantial completion.
“Work” – All construction and related services, labor, materials, supplies, equipment, testing, and documentation to be furnished by Contractor as more fully described in the Contract Documents.

[// GUIDANCE: Alphabetize any additional defined terms you add.]

3. OPERATIVE PROVISIONS

3.1 Scope of Work

3.1.1 Contractor shall diligently perform the Work in a good and workmanlike manner, strictly in accordance with the Contract Documents, industry best practices, and all Applicable Law.
3.1.2 Contractor shall provide sufficient labor, supervision, materials, tools, equipment, and other resources to achieve Substantial Completion on or before [SUBSTANTIAL COMPLETION DATE].
3.1.3 No substitution or deviation from the Plans and Specifications is permitted without a prior written Change Order.

3.2 Contract Time

3.2.1 Commencement Date. Work shall commence on [COMMENCEMENT DATE] (“Commencement Date”).
3.2.2 Milestones. Contractor shall achieve Substantial Completion no later than [SUBSTANTIAL COMPLETION DATE] and Final Completion no later than [FINAL COMPLETION DATE].
3.2.3 Time Is of the Essence. Contractor acknowledges that time is of the essence with respect to its obligations hereunder.
3.2.4 Delays. Contractor shall promptly notify Owner in writing of any actual or anticipated delay, stating the cause and proposed mitigation. Only delays expressly excused under Section 7.4 (Force Majeure) or by approved Change Order shall extend the Contract Time.

3.3 Contract Price & Payment

3.3.1 Schedule of Values. Within ten (10) days after the Effective Date, Contractor shall furnish a detailed schedule of values allocating the Contract Price among cost categories (“Schedule of Values”).
3.3.2 Progress Payments. Owner shall make monthly progress payments based on the percentage of Work properly performed, as certified in Contractor’s sworn Application for Payment, less (a) retainage per Section 3.3.3, (b) amounts previously paid, and (c) any set-offs authorized hereunder.
3.3.3 Retainage. Owner shall withhold retainage equal to five percent (5%) of each progress payment. Retainage shall be released upon Final Completion, subject to Section 3.3.5.
3.3.4 Lien Waivers. As a condition precedent to each payment, Contractor shall deliver conditional or unconditional lien waivers from itself and all subcontractors and suppliers whose Work is covered by the Application for Payment.
3.3.5 Final Payment. Final payment constitutes payment of the entire unpaid balance of the Contract Price and shall be due within thirty (30) days after Final Completion, receipt of (a) a final affidavit of payment, (b) full lien waivers, (c) as-built drawings, warranties, O&M manuals, and (d) evidence of removal of all temporary facilities. Acceptance of final payment by Contractor shall operate as a release of all claims except those previously asserted in writing and unresolved.

3.4 Lien-Law Compliance

3.4.1 Contractor’s Statutory Notice. Contractor shall serve a Lien Notice on Owner and, if required, the construction lender, within twenty (20) days after Contractor first furnishes labor or materials, in strict compliance with Mont. Code Ann. § 71-3-535.
3.4.2 Subcontractor & Supplier Notices. Contractor shall require each lower-tier participant to provide timely Lien Notices and shall furnish copies to Owner upon request.
3.4.3 Owner Posting. Upon receipt, Owner shall conspicuously post any Lien Notice at the Site as required by Applicable Law.
3.4.4 Payment Bond (Optional). At Owner’s written request, Contractor shall furnish a payment bond in the full amount of the Contract Price, issued by a surety acceptable to Owner and authorized to do business in Montana, to secure payment of all Lien claimants.
3.4.5 Lien Discharge. Contractor shall promptly discharge or bond off any Lien filed against the Site arising from the Work and not caused by Owner’s non-payment, within ten (10) days after notice. Failure to do so shall constitute an Event of Default.

3.5 Conditions Precedent & Subsequent

3.5.1 Permits & Licenses. Contractor shall obtain and pay for all permits, licenses, inspections, and governmental fees required for performance of the Work.
3.5.2 Insurance. Contractor shall maintain the insurance coverages described in Exhibit [INSURANCE EXHIBIT] from commencement of the Work until expiration of the warranty period.
3.5.3 Bonds. If required under Section 3.4.4 or Applicable Law, Contractor shall maintain statutory payment and performance bonds.
3.5.4 Safety. Contractor shall be solely responsible for the safety and protection of persons and property on or adjacent to the Site.

4. REPRESENTATIONS & WARRANTIES

4.1 By Contractor
a. Organization & Authority. Contractor is duly organized, validly existing, and in good standing under the laws of its state of formation and is duly qualified to transact business in Montana.
b. Licensure. Contractor and all required personnel hold current, unrestricted, and appropriate Montana contractor’s licenses.
c. No Conflicts. Execution and performance of this Agreement do not violate any other agreement, judgment, or Applicable Law.
d. Standard of Work. All Work shall be (i) free from defects, (ii) performed in a workmanlike manner, and (iii) in strict conformity with the Contract Documents and Applicable Law.
e. Title. Upon payment, good and transferable title to all materials and equipment incorporated into the Work shall pass to Owner free of all liens, encumbrances, and security interests.

4.2 By Owner
a. Authority. Owner has the legal right, title, and interest in the Site necessary to enter into this Agreement and perform its obligations.
b. Financing. Owner has arranged adequate financing to pay the Contract Price as it becomes due.
c. Access. Owner shall provide Contractor with continuous access to the Site commencing on the Commencement Date.

4.3 Survival & Limitations. The warranties in this Section 4 survive Final Completion for a period of [ONE (1)/TWO (2)] year[s] or such longer period as may be required by Applicable Law or manufacturers’ warranties.

5. COVENANTS & RESTRICTIONS

5.1 Affirmative Covenants of Contractor. Contractor shall:
i. Comply with all Applicable Law, including OSHA and environmental regulations;
ii. Maintain an on-site superintendent at all times Work is in progress;
iii. Keep the Site free of accumulated waste, rubbish, and hazardous materials; and
iv. Cooperate with Owner’s other contractors to avoid interference.

5.2 Negative Covenants of Contractor. Without Owner’s prior written consent, Contractor shall not:
i. Assign this Agreement or subcontract all of the Work;
ii. Permit any lien or encumbrance to remain unsatisfied of record beyond the cure period in Section 3.4.5;
iii. Make any alteration to structural components, life-safety systems, or utilities differing from the Plans and Specifications.

5.3 Notice & Cure. A Party claiming breach of any covenant shall give written notice specifying the breach in reasonable detail. The breaching Party shall have [10] days to cure monetary defaults and [15] days to cure non-monetary defaults, subject to extension if cure is commenced within such period and diligently pursued.

6. DEFAULT & REMEDIES

6.1 Events of Default by Contractor:
a. Failure to prosecute the Work diligently causing, in Owner’s reasonable judgment, material delay;
b. Failure to make prompt payment to subcontractors or suppliers;
c. Filing or failure to discharge a Lien as required by Section 3.4.5;
d. Material breach of any representation, warranty, or covenant;
e. Insolvency, bankruptcy, or appointment of a receiver.

6.2 Owner’s Remedies (Cumulative & Graduated):
i. Suspension of Work pending cure;
ii. Supplemental performance by Owner or others at Contractor’s expense;
iii. Termination for Cause upon forty-eight (48) hours’ notice;
iv. Recovery of all direct costs, including reasonable attorney fees;
v. Offset against unpaid Contract Price.

6.3 Contractor’s Remedies. Upon Owner’s failure to pay sums due and owing and failure to cure within the period stated in Section 5.3, Contractor may suspend Work and/or terminate this Agreement. Contractor’s exclusive monetary remedy shall be payment for Work properly performed, plus reasonable demobilization costs.

6.4 Attorneys’ Fees. The prevailing Party in any dispute arising out of or relating to this Agreement shall be entitled to recover reasonable attorneys’ fees, expert fees, and costs.

7. RISK ALLOCATION

7.1 Indemnification

Contractor shall indemnify, defend, and hold harmless Owner and Owner’s Affiliates, and their respective officers, directors, employees, and agents (collectively, the “Indemnitees”), from and against any and all claims, damages, liabilities, losses, costs, and expenses, including reasonable attorneys’ fees, to the extent arising out of or resulting from (i) bodily injury, sickness, disease, or death of any person, or damage to real or personal property, including loss of use, caused by or in connection with the negligent acts, errors, omissions, or willful misconduct of Contractor or anyone for whom Contractor is responsible, (ii) any breach of this Agreement by Contractor, or (iii) any claim for unpaid wages, benefits, or contributions by Contractor’s employees, subcontractors, or suppliers. The foregoing indemnity is in addition to, and not in limitation of, any other rights or remedies available to Owner at law or in equity.

7.2 Limitation of Liability

Except for (a) Contractor’s indemnity obligations, (b) claims arising from gross negligence or willful misconduct, or (c) damages covered by insurance, Contractor’s aggregate liability to Owner under this Agreement shall not exceed the Contract Price.

7.3 Insurance

Contractor shall procure and maintain, at its own expense, insurance of the types and minimum limits set forth in Exhibit [INSURANCE EXHIBIT]. All policies shall (i) name Owner as an additional insured (except workers’ compensation), (ii) be primary and non-contributory, and (iii) provide a waiver of subrogation in favor of Owner.

7.4 Force Majeure

Neither Party shall be liable for delay or failure in performance due to causes beyond its reasonable control, including acts of God, governmental actions, labor disputes, fire, or unavoidable casualties (“Force Majeure Event”), provided the affected Party (i) gives prompt written notice of the Force Majeure Event, and (ii) uses diligent efforts to mitigate the impact. The Contract Time shall be equitably adjusted for the duration of the Force Majeure Event.

8. DISPUTE RESOLUTION

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

8.2 Forum Selection. All actions arising out of or relating to this Agreement shall be brought exclusively in the state courts located in [COUNTY], Montana.

8.3 Optional Arbitration. [SELECT ONE:
☐ 8.3.1 The Parties agree to submit any dispute to binding arbitration administered by the American Arbitration Association (“AAA”) under its Construction Industry Arbitration Rules. Judgment on the award may be entered in any court of competent jurisdiction.
☐ 8.3.2 Arbitration is expressly not required under this Agreement.]

8.4 Jury Trial Waiver. [☐ Each Party irrevocably waives its right to a trial by jury in any action arising out of or relating to this Agreement.]

8.5 Equitable Relief. Nothing in this Section 8 shall limit a Party’s right to seek injunctive relief, specific performance, or other equitable remedies in aid of arbitration or to prevent irreparable harm.

9. GENERAL PROVISIONS

9.1 Amendment & Waiver. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties. A waiver on one occasion shall not constitute a waiver on any other occasion.

9.2 Assignment. Contractor shall not assign or delegate its rights or obligations under this Agreement without Owner’s prior written consent, which may be withheld in Owner’s sole discretion.

9.3 Successors & Assigns. Subject to Section 9.2, this Agreement binds and benefits the Parties and their respective successors and permitted assigns.

9.4 Severability. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.

9.5 Integration. This Agreement, together with the Contract Documents, constitutes the entire agreement between the Parties and supersedes all prior discussions, negotiations, and agreements, oral or written.

9.6 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which is deemed an original, and all of which constitute one instrument. Signatures delivered electronically (e.g., PDF, DocuSign®) are deemed original and binding.

9.7 Independent Contractor. Contractor is an independent contractor and nothing herein shall be construed to create a partnership, joint venture, or agency relationship.

9.8 Notices. All notices must be in writing and delivered by (i) personal delivery, (ii) certified U.S. Mail, return receipt requested, (iii) nationally recognized overnight courier, or (iv) email with read-receipt confirmation, to the addresses below (or such other address a Party designates in writing). Notice is effective on receipt or refusal.

10. EXECUTION BLOCK

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

[// GUIDANCE: Add notary blocks if required by local practice or lender requirements. For residential owner-occupied projects, consider Montana’s Home Solicitation Sales Act and federal “cooling-off” rules.]

END OF DOCUMENT