CONSTRUCTION SERVICES AGREEMENT
(Wisconsin – Private Project)
[// GUIDANCE: This template is drafted to comply with Wisconsin construction-lien statutes, payment-bond rules, and retainage limits current as of the date of drafting. Practitioners must confirm no statutory amendments have occurred before use.]
TABLE OF CONTENTS
- Document Header
- Definitions
- Scope of Work
- Contract Price; Payment Terms
- Time of Performance
- Conditions Precedent
- Representations & Warranties
- Covenants
- Insurance & Risk Allocation
- Indemnification
- Limitation of Liability
- Lien Law Compliance
- Retainage
- Changes in the Work
- Events of Default; Remedies
- Suspension & Termination
- Dispute Resolution
- General Provisions
- Execution Block
Exhibit A – Scope of Work & Specifications
Exhibit B – Wisconsin Notice of Lien Rights (Statutory Form)
Exhibit C – Payment Bond (if required)
Exhibit D – Schedule of Values & Progress Payment Schedule
1. DOCUMENT HEADER
This Construction Services Agreement (this “Agreement”) is 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”).
Owner and Contractor are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
A. Owner owns or controls the real property located at [PROPERTY ADDRESS] as more particularly described in Exhibit A (the “Site”).
B. Owner desires to engage Contractor to perform certain construction services at the Site, and Contractor desires to perform such services, all on the terms set forth herein.
C. The Parties intend for this Agreement to be governed by and construed in accordance with the laws of the State of Wisconsin.
NOW, THEREFORE, in consideration of the mutual covenants herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
2. DEFINITIONS
For purposes of this Agreement, the following capitalized terms have the meanings set forth below. Other capitalized terms are defined in context.
“Applicable Law” – All federal, state, and local statutes, regulations, ordinances, building codes, and rules applicable to the Work, including Wisconsin construction-lien statutes (currently ch. 779, Wis. Stats.).
“Change Order” – A written amendment to the Contract Documents executed in accordance with Section 14.
“Contract Documents” – Collectively, this Agreement (including all Exhibits), Change Orders, the Schedule of Values, any Project schedules, plans, specifications, and drawings referenced herein.
“Contract Price” – The total amount payable to Contractor for performance of the Work, being [WRITE “Lump Sum of $” OR “Cost of the Work plus Fee not-to-exceed $”, etc.].
“Date of Substantial Completion” – The date certified by Owner on which the Work is sufficiently complete, in accordance with the Contract Documents, to permit beneficial occupancy or use for its intended purpose, subject only to Punch-List items.
“Lien Notice” – The statutory “Notice of Lien Rights” delivered pursuant to Section 12.1 and attached hereto as Exhibit B.
“Payment Bond” – A bond satisfying Section 12.3, issued by a surety licensed in Wisconsin, guaranteeing payment to Subcontractors and suppliers.
“Progress Payment” – A partial payment of the Contract Price in accordance with Section 4.2.
“Project” – The construction, improvement, and related services to be performed at the Site as generally described in Exhibit A.
“Punch-List” – A written list of minor Work items to be completed or corrected following Substantial Completion.
“Retainage” – The percentage of each Progress Payment withheld by Owner as security for completion and performance, not to exceed the statutory maximum (currently five percent (5%)).
“Subcontractor” – Any person or entity, of any tier, engaged directly or indirectly by Contractor to perform any portion of the Work.
“Work” – All labor, materials, equipment, and services to be provided by Contractor under the Contract Documents.
3. SCOPE OF WORK
3.1 Scope. Contractor shall furnish all labor, materials, tools, equipment, supervision, and services necessary to perform the Work in strict accordance with the Contract Documents.
3.2 Standards of Performance. Contractor shall perform the Work (a) in a diligent, expeditious, safe, and workmanlike manner, (b) in compliance with Applicable Law, (c) in accordance with generally accepted construction industry standards, and (d) so as not to unreasonably interfere with other activities at or adjacent to the Site.
3.3 Supervision & Coordination. 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 Contract Documents.
3.4 Protection of Persons & Property. Contractor shall take reasonable precautions for safety and shall comply with all safety laws and regulations. Contractor shall protect existing property and improvements on or adjacent to the Site.
4. CONTRACT PRICE; PAYMENT TERMS
4.1 Contract Price. Owner shall pay Contractor the Contract Price as full compensation for complete performance of the Work, subject to additions and deductions by Change Order.
4.2 Progress Payments.
(a) Schedule of Values. Contractor shall furnish a Schedule of Values allocating the Contract Price among labor, materials, and other cost items.
(b) Application for Payment. On or before the [DAY] of each month, Contractor shall submit to Owner an Application for Payment for Work performed through the preceding month, supported by such documentation as Owner reasonably requests.
(c) Certification & Payment. Provided that the Application for Payment is correct and the Work is proceeding satisfactorily, Owner shall, within [___] days after receipt, pay Contractor the amount certified, less (i) Retainage, (ii) previous payments, and (iii) amounts Owner is entitled to withhold under Section 4.5.
4.3 Retainage. Owner shall withhold Retainage from each Progress Payment in the amount set forth in Section 13.
4.4 Final Payment. Upon (a) Substantial Completion, (b) completion of Punch-List items, (c) delivery of as-built drawings, warranties, and other close-out items, and (d) receipt of final lien waivers from Contractor and all Subcontractors and suppliers, Owner shall pay Contractor the unpaid balance of the Contract Price, including Retainage, within [___] days.
4.5 Owner’s Right to Withhold. Owner may withhold any payment to the extent reasonably necessary to protect Owner from loss or damage due to (a) defective Work not remedied, (b) third-party claims, (c) Contractor’s failure to make payments to Subcontractors, (d) reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Price, or (e) Contractor’s breach of this Agreement.
5. TIME OF PERFORMANCE
5.1 Commencement. Contractor shall commence the Work on [COMMENCEMENT DATE] or within [___] days after receipt of written notice to proceed, whichever occurs first.
5.2 Substantial Completion. Contractor shall achieve Substantial Completion not later than [SUBSTANTIAL COMPLETION DATE], subject to excusable delays as defined in Section 9.4 (Force Majeure).
5.3 Time Is of the Essence. Time is of the essence with respect to Contractor’s performance.
5.4 Liquidated Damages. If Contractor fails to achieve Substantial Completion by the required date (as may be adjusted), Contractor shall pay Owner liquidated damages of $[___] per day for each day of delay, which the Parties agree is a reasonable estimate of Owner’s damages.
6. CONDITIONS PRECEDENT
Contractor’s obligation to commence or continue the Work is conditioned upon:
(a) Owner’s timely payment of amounts properly due;
(b) Owner’s delivery of all information and approvals reasonably necessary for performance;
(c) Owner’s procurement of all zoning, land-use, or easement rights not the responsibility of Contractor; and
(d) Obtaining and maintaining the Payment Bond, if required.
7. REPRESENTATIONS & WARRANTIES
7.1 Contractor. Contractor represents and warrants that:
(a) It is duly organized, validly existing, and in good standing under the laws of its state of organization and is authorized to conduct business in Wisconsin;
(b) It possesses all licenses, registrations, and permits required to perform the Work;
(c) All materials furnished will be new, of good quality, free from defects, and fit for the intended purpose; and
(d) The Work will be performed in conformity with the Contract Documents and Applicable Law.
[Survival. The warranties set forth in this Section 7.1 shall survive Substantial Completion for a period of [ONE] year or for such longer period as may be provided in the Contract Documents.]
7.2 Owner. Owner represents and warrants that:
(a) Owner has fee simple title to the Site (or other sufficient property interest) and authority to contract for the Work; and
(b) Financing is in place or funds are otherwise available to pay the Contract Price.
8. COVENANTS
8.1 Owner Access. Owner and its representatives shall have reasonable access to the Site and the Work at all reasonable times.
8.2 Cooperation. Each Party shall cooperate with the other to facilitate timely completion of the Work and shall give notices and approvals required under the Contract Documents without unreasonable delay.
8.3 Notices. All notices required or permitted under this Agreement shall be in writing and delivered by personal delivery, certified mail (return receipt requested), or commercial courier to the addresses set forth above (or such other address designated in writing).
8.4 Recordkeeping & Audit. Contractor shall maintain complete and accurate records of costs, expenses, and Project correspondence for at least three (3) years after final payment and shall make such records available for Owner’s inspection upon reasonable request.
9. INSURANCE & RISK ALLOCATION
9.1 Contractor Insurance. Contractor shall, at its own expense, procure and maintain:
(a) Commercial General Liability insurance with limits of not less than $[] per occurrence and $[] aggregate;
(b) Workers’ Compensation insurance in statutory limits and Employers’ Liability insurance with limits of not less than $[];
(c) Automobile Liability insurance covering owned, non-owned, and hired automobiles with limits of not less than $[] combined single limit; and
(d) Builder’s Risk or Course-of-Construction insurance covering the full replacement value of the Work (unless provided by Owner).
All policies shall name Owner as an additional insured (except Workers’ Compensation) and provide for waiver of subrogation in favor of Owner.
9.2 Owner Insurance. Owner shall maintain property insurance upon the existing structure and its contents and shall be responsible for deductibles applicable thereto.
9.3 Insurance Certificates. Prior to commencing the Work and upon renewal, Contractor shall deliver certificates of insurance and endorsements evidencing the required coverage.
9.4 Force Majeure. Neither Party shall be liable for delay or failure in performance due to causes beyond its reasonable control, including acts of God, terrorism, strikes, pandemic, governmental orders, or severe weather, provided that the affected Party notifies the other within five (5) days of the event and resumes performance promptly thereafter.
10. INDEMNIFICATION
10.1 Contractor Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless Owner and its affiliates, officers, directors, employees, and agents from and against any and all claims, damages, losses, liabilities, fines, penalties, and expenses (including reasonable attorney fees) arising out of or relating to (a) the Work, (b) personal injury, death, or property damage caused by the negligence or willful misconduct of Contractor or anyone for whom Contractor is responsible, or (c) Contractor’s breach of this Agreement, except to the extent caused by the sole negligence of Owner.
10.2 Defense Obligation. Contractor’s duty to defend is independent of its duty to indemnify and shall arise upon assertion of a covered claim. Owner may participate in the defense with counsel of its choice at its own expense.
11. LIMITATION OF LIABILITY
Except for (a) Contractor’s indemnification obligations, (b) liability for gross negligence or willful misconduct, or (c) amounts recoverable under available insurance, the total aggregate liability of either Party to the other arising out of or related to this Agreement shall not exceed the Contract Price. Neither Party shall be liable for incidental, consequential, special, or punitive damages, including lost profits, loss of use, or loss of business, whether based on contract, tort, or any other legal theory.
12. LIEN LAW COMPLIANCE
12.1 Lien Notice Requirement. Contractor shall, within the time period required by Applicable Law (currently 10 days after first furnishing labor or materials for improvements to one- or two-family dwellings), deliver the Lien Notice to Owner in the statutory form attached as Exhibit B.
12.2 Waivers & Releases. As a condition precedent to each Progress Payment, Contractor shall furnish partial lien waivers from itself and its Subcontractors and suppliers covering Work for which payment is sought. As a condition precedent to final payment, Contractor shall furnish unconditional final lien waivers from itself and all Subcontractors and suppliers.
12.3 Payment Bond (Optional/As Required). If (a) the Contract Price exceeds $[THRESHOLD] or (b) Owner so requests in writing, Contractor shall furnish a Payment Bond in the penal sum of 100% of the Contract Price, in form and substance reasonably acceptable to Owner and in compliance with Wisconsin bonding statutes (currently § 779.14 for public work and § 779.035 for private Payment Bonds), guaranteeing prompt payment to all persons furnishing labor or materials for the Work. [// GUIDANCE: Delete or modify Section 12.3 for projects where a Payment Bond is not required.]
12.4 Discharge of Liens. Contractor shall promptly discharge (by payment, bond, or court order) any mechanic’s or construction lien filed against the Project arising out of the Work.
13. RETAINAGE
13.1 Percentage; Cap. Owner shall withhold Retainage equal to [5% or LOWER] of each Progress Payment; however, in no event shall Retainage exceed the maximum percentage permitted under Applicable Law (currently five percent (5%)).
13.2 Reduction of Retainage. Upon Substantial Completion and written request by Contractor, Owner shall reduce Retainage to the lesser of (a) two percent (2%) of the Contract Price or (b) an amount sufficient, in Owner’s reasonable judgment, to cover incomplete or defective Work and outstanding claims.
13.3 Interest. Retainage shall not bear interest unless required by Applicable Law, in which case interest shall accrue at the statutory rate.
14. CHANGES IN THE WORK
14.1 Change Orders. Owner may order changes, additions, or deletions to the Work by issuing a written Change Order describing the change and any adjustment to the Contract Price and/or Contract Time.
14.2 Contractor-Requested Changes. Contractor shall not deviate from the Contract Documents without an executed Change Order.
14.3 Pricing of Changes. Adjustments to the Contract Price shall be (a) mutually agreed lump sum, (b) unit prices, or (c) time-and-material plus a fee of [___]%.
15. EVENTS OF DEFAULT; REMEDIES
15.1 Contractor Default. The following constitute Contractor defaults:
(a) Failure to prosecute the Work diligently;
(b) Failure to pay Subcontractors as required;
(c) Failure to maintain required insurance or Payment Bond;
(d) Material breach of any representation, warranty, or covenant; or
(e) Insolvency or bankruptcy.
15.2 Owner’s Remedies. Upon Contractor default and after [SEVEN (7)] days’ written notice and opportunity to cure, Owner may:
(a) Suspend work or terminate this Agreement for cause;
(b) Take over the Work and offset the cost of completion against the unpaid Contract Price;
(c) Seek specific performance, injunctive relief, or damages; and/or
(d) Exercise any other rights available at law or equity.
15.3 Owner Default. Owner defaults include:
(a) Failure to make payments when due;
(b) Material breach of this Agreement; or
(c) Failure to provide access or approvals causing delay.
15.4 Contractor’s Remedies. Upon Owner default and after [SEVEN (7)] days’ written notice and opportunity to cure, Contractor may:
(a) Suspend performance;
(b) Terminate this Agreement and recover payment for Work executed plus reasonable termination costs; and/or
(c) Pursue any other rights available at law or equity.
15.5 Attorneys’ Fees. The prevailing Party in any dispute arising from this Agreement shall be entitled to recover its reasonable attorneys’ fees, court costs, and expenses.
16. SUSPENSION & TERMINATION
16.1 Owner Suspension for Convenience. Owner may, for its convenience, order Contractor in writing to suspend all or part of the Work. Contractor shall resume the Work within a reasonable time after receipt of notice to resume. The Contract Price and Contract Time shall be equitably adjusted for costs and delays incurred due to the suspension.
16.2 Owner Termination for Convenience. Owner may terminate this Agreement without cause upon [] days’ written notice. Contractor shall stop Work as directed, and Owner shall pay Contractor (a) for Work executed, (b) reasonable demobilization costs, and (c) a termination fee of []% of the unpaid portion of the Contract Price (if any).
16.3 Contractor Termination. Contractor may terminate this Agreement in accordance with Section 15.4.
17. DISPUTE RESOLUTION
17.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin, without regard to its conflict of laws rules.
17.2 Forum Selection. The state courts located in [COUNTY], Wisconsin (and, if permitted, the federal courts of the Western District of Wisconsin) shall have exclusive jurisdiction over any action arising out of or relating to this Agreement, except as provided in Section 17.3.
17.3 Arbitration (Optional). [Select One]
☐ Arbitration Not Applicable.
☐ Arbitration Applicable. Any dispute shall be resolved by binding arbitration administered by the American Arbitration Association under its Construction Industry Arbitration Rules; judgment upon the award may be entered in any court having jurisdiction. The arbitration site shall be [CITY, WI].
17.4 Jury Trial Waiver (Optional). IF NOT PROHIBITED BY LAW AND IF INITIALLED BY BOTH PARTIES, EACH PARTY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ITS RIGHT TO TRIAL BY JURY.
Owner _ Contractor ___
17.5 Injunctive Relief. Notwithstanding Section 17.3, either Party may seek temporary or preliminary injunctive relief in a court of competent jurisdiction to protect its rights or property pending resolution of the dispute.
18. GENERAL PROVISIONS
18.1 Entire Agreement. The Contract Documents constitute the entire agreement between the Parties and supersede all prior discussions.
18.2 Amendment & Waiver. No amendment or waiver shall be effective unless in writing signed by the Parties. No waiver of any breach shall be deemed a waiver of subsequent breaches.
18.3 Assignment. Neither Party may assign or delegate its rights or obligations without the prior written consent of the other, except that Owner may assign its rights to a lender providing construction financing.
18.4 Successors & Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
18.5 Severability. If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force, and the invalid provision shall be reformed to the minimum extent necessary to render it enforceable.
18.6 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which is deemed an original, and all of which together constitute one instrument. Signatures delivered by PDF or electronic signature technology shall be binding.
18.7 Independent Contractor. Contractor is an independent contractor and not an employee, partner, joint venturer, or agent of Owner.
18.8 No Third-Party Beneficiaries. Except as expressly provided herein, no person other than the Parties and their permitted successors and assigns has any rights under this Agreement.
19. EXECUTION BLOCK
IN WITNESS WHEREOF, the Parties have executed this Construction Services Agreement as of the Effective Date.
OWNER:
[OWNER LEGAL NAME]
By: ____
Name: ____
Title: ____
CONTRACTOR:
[CONTRACTOR LEGAL NAME]
By: ____
Name: ____
Title: ____
[Notary acknowledgments if required]
EXHIBIT A – SCOPE OF WORK & SPECIFICATIONS
[Attach detailed drawings, specifications, and description of the Work.]
EXHIBIT B – WISCONSIN NOTICE OF LIEN RIGHTS
[// GUIDANCE: Use the exact statutory text and formatting required under Wisconsin lien statutes. Ensure delivery within statutory timeframe and keep proof of service.]
EXHIBIT C – PAYMENT BOND (IF REQUIRED)
[Attach AIA A312 Payment Bond form or equivalent surety form compliant with Wisconsin law.]
EXHIBIT D – SCHEDULE OF VALUES & PROGRESS PAYMENT SCHEDULE
[Provide line-item breakdown tied to Contract Price and construction schedule.]
[// GUIDANCE: Before issuing to a client or counter-party, review (1) current Wisconsin statutes on lien notices, retainage caps, and payment-bond thresholds; (2) project-specific insurance requirements; and (3) any lender or owner mandates that may override default provisions.]