CONSTRUCTION SERVICES AGREEMENT

(West Virginia – Private or Public Project)

[// GUIDANCE: This template is drafted for use on projects located in West Virginia and is intended to comply with state‐specific lien notice requirements, payment-bond practices, and statutory retainage limits. Bracketed items must be completed or tailored to the particular deal. Remove all guidance comments before final execution.]

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Operative Provisions
   3.1 Scope of Work
   3.2 Contract Price & Payment Terms
   3.3 Schedule & Milestones
4. Representations & Warranties
5. Covenants & Restrictions
6. Default & Remedies
7. Risk Allocation
   7.1 Indemnification
   7.2 Limitation of Liability
   7.3 Insurance
   7.4 Force Majeure
8. Dispute Resolution
9. General Provisions
10. Execution Block

1. DOCUMENT HEADER

This Construction Services Agreement (the “Agreement”) is 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”).

1.1 Recitals

A. Owner desires to engage Contractor to furnish all labor, materials, equipment, and services required for the construction of the project described herein (the “Project”), located at [PROJECT ADDRESS] in the State of West Virginia.
B. Contractor represents that it is duly licensed, experienced, and qualified to perform the Work (as defined below) in compliance with all applicable laws, including West Virginia mechanics-lien statutes and regulations.
C. The Parties wish to set forth their entire agreement with respect to the Project on the terms and conditions stated below.

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

2. DEFINITIONS

The following capitalized terms shall have the meanings set forth below. Other capitalized terms are defined contextually throughout this Agreement.

“Applicable Law” – all federal, state, and local statutes, regulations, ordinances, codes, and orders governing the Project, including without limitation the West Virginia Mechanics’ Lien Law and any payment-bond or retainage requirements applicable to the Project type (public or private).

“Change Order” – a written amendment executed by Owner and Contractor pursuant to Section 5.3, adjusting the Contract Price, Scope of Work, or Contract Time.

“Contract Documents” – collectively, this Agreement, the plans and specifications, all Change Orders, and any other documents listed on Exhibit A.

“Contract Price” – the not-to-exceed sum of [$$] payable to Contractor under Section 3.2, subject to adjustments by authorized Change Orders.

“Contract Time” – the period commencing on the Notice to Proceed and expiring upon Substantial Completion, as set forth in Section 3.3.

“Final Completion” – completion of all punch-list items, submission of all close-out deliverables, and issuance of final payment in accordance with Section 3.2.6.

“Lien Claimant” – any person or entity with lien rights arising under Applicable Law by virtue of furnishing labor, materials, or services to the Project.

“Notice to Proceed” – Owner’s written directive authorizing Contractor to commence the Work.

“Retainage” – the portion of each progress payment withheld by Owner under Section 3.2.3, not to exceed the lesser of (i) the maximum percentage permitted by Applicable Law or (ii) [RETAINAGE PERCENT]% of the earned amount.

“Subcontractor” – any person or entity, of any tier, engaged by Contractor to perform any portion of the Work.

“Substantial Completion” – the stage at which the Work is sufficiently complete, in accordance with the Contract Documents, so that Owner can occupy or utilize the Project for its intended purpose, as certified by the Architect/Engineer.

“Work” – all labor, materials, equipment, and services to be provided by Contractor as described in Section 3.1 and the Contract Documents.

3. OPERATIVE PROVISIONS

3.1 Scope of Work

3.1.1 Contractor shall perform the Work described in Exhibit B in a good, workmanlike, and lien-free manner, strictly in accordance with the Contract Documents and Applicable Law.
3.1.2 Contractor shall provide all supervision, labor, materials, tools, equipment, temporary facilities, and services necessary for completion of the Work.
3.1.3 Contractor shall obtain and pay for all permits, fees, licenses, and inspections required for the lawful execution of the Work.

3.2 Contract Price & Payment Terms

3.2.1 Contract Price. Owner agrees to pay Contractor, as full compensation for the satisfactory and timely performance of the Work, the Contract Price.
3.2.2 Schedule of Values. Within ten (10) days after the Effective Date, Contractor shall submit a detailed schedule of values allocating the Contract Price among labor, materials, and major components of the Work.
3.2.3 Progress Payments and Retainage.
(a) Contractor shall submit monthly Applications for Payment on AIA G702/G703 (or equivalent) covering Work performed through the payment cutoff date.
(b) Owner shall pay certified amounts within [XX] days after receipt, less Retainage and any set-offs permitted under Section 6.2.
(c) Retainage shall be withheld only to the extent and for the duration permitted by Applicable Law and, in any event, shall not exceed [RETAINAGE PERCENT]% until fifty percent (50%) of the Work is complete, after which Retainage shall be reduced to [REDUCED PERCENT]% of subsequent payments.
3.2.4 Conditional Lien Waivers. Each Application for Payment shall be accompanied by duly executed conditional lien waivers from Contractor and all Subcontractors and suppliers for the period covered.
3.2.5 Payment Bond (If Required). If the Project is subject to a statutory payment-bond requirement or if Owner otherwise directs, Contractor shall furnish a payment bond in the penal sum of the Contract Price, using the form attached as Exhibit C, issued by a surety authorized to do business in West Virginia and rated at least A- by A.M. Best.
3.2.6 Final Payment. Upon Final Completion and submission of (i) an unconditional final lien waiver from Contractor and all Lien Claimants, (ii) as-built drawings, warranties, O&M manuals, and other close-out items listed in Exhibit D, and (iii) proof of discharge of all liens, Owner shall release Retainage and make final payment within [XX] days. Final payment constitutes Owner’s acceptance of the Work, subject to latent defects and warranty obligations.

3.3 Schedule & Milestones

3.3.1 Time is of the essence. Contractor shall achieve Substantial Completion no later than [SUBSTANTIAL COMPLETION DATE].
3.3.2 Liquidated Damages. If Substantial Completion is not achieved by the foregoing date (as extended for Excusable Delays), Contractor shall pay Owner liquidated damages of [$/day] for each calendar day of delay, which the Parties agree is a reasonable estimate of Owner’s damages and not a penalty.

4. REPRESENTATIONS & WARRANTIES

4.1 Mutual Representations. Each Party represents that:
(a) it is duly organized, validly existing, and in good standing under the laws of its state of formation;
(b) it has full power and authority to enter into and perform this Agreement;
(c) this Agreement constitutes a legal, valid, and binding obligation enforceable against it in accordance with its terms.

4.2 Contractor Representations & Warranties. Contractor further represents and warrants that:
(a) it is properly licensed to perform the Work in West Virginia;
(b) its personnel are adequately trained and qualified;
(c) the Work will be performed in compliance with all Applicable Law and free of liens, claims, and encumbrances;
(d) all materials furnished will be new and of good quality unless otherwise specified;
(e) it will maintain the insurance coverages required under Section 7.3.
4.3 Warranty Period. Contractor warrants the Work against defects in materials and workmanship for a period of [ONE (1)] year from the date of Substantial Completion, or for such longer period as provided in the Contract Documents or manufacturer warranties.

[// GUIDANCE: Attach any disclosure schedules addressing known site conditions, hazardous materials, or Owner-furnished items.]

5. COVENANTS & RESTRICTIONS

5.1 Affirmative Covenants of Contractor. Contractor shall:
(a) maintain accurate books and records relating to the Work and allow Owner reasonable access for audit purposes;
(b) coordinate and supervise all Subcontractors;
(c) keep the site free of debris and comply with OSHA requirements;
(d) submit, within seven (7) days of Owner’s request, an updated list of Subcontractors and suppliers.

5.2 Negative Covenants. Contractor shall not:
(a) assign this Agreement or further subcontract any portion of the Work without Owner’s prior written consent, which shall not be unreasonably withheld;
(b) place or permit to remain any lien or claim against the Project or Owner’s property, other than in accordance with Applicable Law.

5.3 Changes in the Work. No change, addition, or deletion shall be binding unless executed as a Change Order. Pending resolution of any dispute regarding a Change Order, Contractor shall proceed diligently with the Work as directed by Owner.

6. DEFAULT & REMEDIES

6.1 Events of Default. The following shall constitute an Event of Default by Contractor:
(a) failure to prosecute the Work diligently;
(b) failure to achieve a material milestone or Substantial Completion within contract time;
(c) filing of a voluntary or involuntary petition in bankruptcy that is not dismissed within sixty (60) days;
(d) failure to comply with a material covenant, including lien discharge obligations.

6.2 Notice & Cure. Owner shall give Contractor written notice of default and a cure period of seven (7) days (or such longer period as is reasonably necessary if Contractor commences and continues diligent efforts to cure). Failure to cure within the period constitutes a material breach.

6.3 Owner Remedies. Upon Contractor’s uncured default, Owner may, without prejudice to any other rights, (i) terminate this Agreement in whole or in part, (ii) take possession of the site and materials, (iii) finish the Work by whatever method it deems expedient, and (iv) set off the cost of completion against any sums otherwise due to Contractor. Contractor shall be liable for all costs of completion in excess of the unpaid Contract Price, plus reasonable attorney fees and interest at [LEGAL RATE]%.

6.4 Contractor Remedies. If Owner fails to make payment when due and such failure continues for seven (7) days after written notice, Contractor may suspend performance until payment is made, and the Contract Time and Contract Price shall be equitably adjusted for resulting delays and costs.

7. RISK ALLOCATION

7.1 Indemnification

To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless Owner, its lenders, and their respective officers, directors, agents, and employees from and against any and all claims, damages, losses, liabilities, penalties, fines, and expenses (including reasonable attorney fees) arising out of or resulting from (i) the performance of the Work, (ii) any breach of this Agreement by Contractor, or (iii) any lien or claim asserted by a Lien Claimant, except to the extent caused by the sole negligence of Owner.

7.2 Limitation of Liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF CONTRACTOR TO OWNER FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT SHALL NOT EXCEED THE CONTRACT PRICE, PROVIDED THAT THIS LIMITATION SHALL NOT APPLY TO (A) CONTRACTOR’S INDEMNIFICATION OBLIGATIONS FOR THIRD-PARTY PERSONAL INJURY OR PROPERTY DAMAGE, (B) CLAIMS FOR INTENTIONAL MISCONDUCT OR FRAUD, OR (C) COVERAGE PROVIDED UNDER ANY REQUIRED INSURANCE POLICY.

7.3 Insurance

Contractor shall procure and maintain at its own expense, until Final Completion plus the applicable statute of repose, at least the following insurance:
(a) Commercial General Liability: $[X] per occurrence / $[Y] aggregate;
(b) Workers’ Compensation: statutory limits for the State of West Virginia;
(c) Employer’s Liability: $[X];
(d) Automobile Liability: $[X] combined single limit;
(e) Builder’s Risk / “All Risk” Property Insurance on a completed value form naming Owner and Contractor as insureds.

Certificates of insurance evidencing the foregoing coverages shall be delivered to Owner prior to commencement of the Work and shall provide for thirty (30) days’ prior written notice of cancellation.

7.4 Force Majeure

Neither Party shall be liable for delays or failure to perform caused by acts of God, terrorism, war, civil commotion, pandemics, labor strikes beyond the Party’s control, or any other cause beyond its reasonable control (“Force Majeure Event”). The affected Party shall promptly give written notice describing the Force Majeure Event and its anticipated impact. The Contract Time shall be extended for the period of delay attributable to 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 West Virginia, without regard to its conflict-of-law principles.

8.2 Forum Selection. Subject to Section 8.3, the circuit courts of the State of West Virginia located in [COUNTY NAME] County shall have exclusive jurisdiction over any action arising out of or relating to this Agreement, and each Party irrevocably submits to the personal jurisdiction of such courts.

8.3 Optional Arbitration. By initialing below, the Parties agree to submit all disputes (other than claims for injunctive relief) to binding arbitration under the Construction Industry Rules of the American Arbitration Association (“AAA”).
Owner Initials: _ Contractor Initials: _

8.4 Injunctive Relief. Notwithstanding Section 8.3, either Party may seek temporary, preliminary, or permanent injunctive relief or specific performance in any court of competent jurisdiction pending arbitration to prevent irreparable harm.

8.5 Jury Trial Waiver (Optional). IF AND ONLY IF THE PARTIES SO ELECT BY INITIALING, EACH PARTY HEREBY IRREVOCABLY WAIVES ITS RIGHT TO A JURY TRIAL FOR ANY ACTION ARISING OUT OF THIS AGREEMENT.
Owner Initials: _ Contractor Initials: _

9. GENERAL PROVISIONS

9.1 Entire Agreement; Integration. This Agreement, together with the other Contract Documents, constitutes the entire agreement between the Parties and supersedes all prior negotiations, representations, or agreements, whether oral or written.

9.2 Amendment & Waiver. No amendment or waiver of any provision shall be effective unless in writing and signed by authorized representatives of both Parties. A waiver on one occasion shall not be deemed a waiver on any subsequent occasion.

9.3 Severability. If any provision is held unenforceable, the remaining provisions shall remain in full force, and the unenforceable provision shall be reformed to the limited extent necessary to make it enforceable.

9.4 Assignment. Neither Party may assign or delegate its rights or obligations hereunder without the prior written consent of the other Party, except that Owner may assign this Agreement to its lender or any successor in interest without Contractor’s consent upon written notice.

9.5 Successors & Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.

9.6 Electronic Signatures & Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one instrument. Signatures transmitted electronically or by facsimile shall be deemed original signatures.

10. EXECUTION BLOCK

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

[OWNER LEGAL NAME]
By: _______
Name: [PRINTED NAME]
Title: [TITLE]

Date: _____

[CONTRACTOR LEGAL NAME]
By: _______
Name: [PRINTED NAME]
Title: [TITLE]

Date: _____

[NOTARY ACKNOWLEDGMENTS, IF REQUIRED BY PROJECT TYPE OR LENDER]

EXHIBITS (Attach as Needed)

Exhibit A – List of Contract Documents
Exhibit B – Scope of Work / Plans & Specifications
Exhibit C – Form of Payment Bond (if required)
Exhibit D – Close-Out Deliverables Checklist

[// GUIDANCE: Confirm that all statutory notice forms, timeframes, and filing locations required under West Virginia law for mechanics’ liens are addressed in the project administration workflow (e.g., pre-lien notices, Notice of Completion filing, and lien-release sequencing). Review retainage percentages against current legislative caps before populating placeholders. For public projects, verify compliance with West Virginia’s “Little Miller Act” and any agency-specific bond forms.]