2026-08-19_McIntosh_Park_Wetland_Construction.pdf

CONTRACT FOR MCINTOSH PARK

WETLAND CONSTRUCTION

(26-048UO-IFB)

This CONTRACT FOR MCINTOSH PARK WETLAND CONSTRUCTION (the "Contract") is made and entered into by and between the City of Plant City, a Florida Municipal Corporation (the "City") and ___________________________________________________________ (the "Contractor"). This Contract is executed under seal, and shall be dated as of and effective on ______________________ (“Effective Date”).

This Contract is for the construction of a project identified as McIntosh Park Wetland Construction (the "Project").

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements stated herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree:

1.

DOCUMENTS INCORPORATED BY REFERENCE

Contract Documents Defined. The contract between the parties shall consist of the “Contract

Documents.” The Contract Documents shall include this Agreement, and the following documents prepared by the City: Invitation for Bid #26-048UO-IFB, and any addenda thereto, including but limited to, Scope of Work;

Special Provisions; McIntosh Park Integrated Water Management Plans 100% Wetland Design prepared by Dewberry Engineers, Inc. dated June 6, 2026; McIntosh Park Construction Package dated May 2025 consisting of 486 pages; McIntosh Park Elements prepared by Dewberry Engineers, Inc. dated February 18, 2026;

Agreement No. LPA0038 between Florida Department of Environmental Protection and City of Plant City dated June 3, 2020; Amendment No. 1 to Agreement No. LPA0038 between Florida Department of Environmental Protection and City of Plant City dated February 3, 2022; Amendment No. 2 to Agreement No. LPA0038 between Florida Department of Environmental Protection and City of Plant City dated March 28, 2023;

Amendment No. 3 to Agreement No. LPA0038 between Florida Department of Environmental Protection and City of Plant City dated June 26, 2024; Environmental Resource Permit No. 43044733.002 dated May 24, 2024;

Safety and Site Security Scope of Work; Defend 360 Instruction Manual; Environmental Protection Commission Permit No. 79173 Authorization for Wetland Impact with Mitigation Plan dated February 12, 2025; Department of Army Permit No. SAJ-2024-04226(SP-CM); and Payment and Performance Bond, all of which are hereby incorporated herein by reference and made a part hereof. To the extent that the Contractor’s Executed Bid Form does not conflict with the above Contract Documents, it shall be incorporated herein. Any conflict with the Contractor’s Executed Bid Form and the documents prepared by or on behalf of the City shall be construed in favor of the documents prepared by or on behalf of the City. Change Orders issued hereafter, and any other amendments executed by the City and the Contractor, shall become and be a part of this Contract. Documents not included or expressly contemplated in this Section 1 do not, and shall not, form any part of this Contract.

The Executed Bid Form is attached as Exhibit “A”.

2.

REPRESENTATIONS OF THE CONTRACTOR

In order to induce the City to execute this Contract and recognizing that the City is relying thereon, the Contractor, by executing this Contract, makes the following express representations to the City:

(A) The Contractor is fully qualified to act as the contractor for the Project and has, and shall maintain, any and all licenses, permits or other authorizations necessary to act as the contractor for, and to construct, the Project;

(B) The Contractor has become familiar with the Project site and the local conditions under which the Project is to be constructed and operated;

(C) The Contractor has received, reviewed and carefully examined all of the documents which make up this Contract, including, but not limited to, the plans and specifications, and has found them in all respects to be complete, accurate, adequate, consistent, coordinated and sufficient for construction; and

(D) Contractor warrants good right and title to all material, supplies, and equipment installed or incorporated in the work and agrees upon completion of all work to deliver to City all material, supplies, and equipment installed or incorporated in the work constructed free of any claims, liens, or charges.

3.

INTENT AND INTERPRETATION

With respect to the intent and interpretation of this Contract, the City and the Contractor agree as follows:

(A) This Contract, including all documents incorporated by reference to this Contract pursuant to Section 1 herein, shall constitute the entire and exclusive agreement between the parties with reference to the Project, and said Contract supersedes any and all prior discussions, communications, representations, understandings, negotiations, or agreements.

(B) Anything that may be required, implied or inferred by the documents which make up this Contract, or any one or more of them, shall be provided by the Contractor for the Contract Price.

(C) Nothing contained in this Contract shall create, nor be interpreted to create, privity or any other relationship whatsoever between the City and any person except the Contractor.

(D) When a word, term, or phrase is used in this Contract, it shall be interpreted or construed first, as defined herein; second, if not defined, according to its generally accepted meaning in the construction industry;

and third, if there is no generally accepted meaning in the construction industry, according to its common and customary usage.

(E) The words "include", "includes", or "including", as used in this Contract, shall be deemed to be followed by the phrase, "without limitation".

(F) The specification herein of any act, failure, refusal, omission, event, occurrence or condition as constituting a material breach of this Contract shall not imply that any other, non-specified act, failure, refusal, omission, event, occurrence or condition shall be deemed not to constitute a material breach of this Contract.

(G) The Contractor shall have a continuing duty to read, examine, review, compare and contrast each of the documents which make up this Contract, shop drawings, and other submittals and shall give written notice to the City and the CEI of any conflict, ambiguity, error or omission which the Contractor may find with respect to these documents before proceeding with the affected work. The express or implied approval by the City or the CEI of any shop drawings or other submittals shall not relieve the Contractor of the continuing duties imposed hereby, nor shall any such approval be evidence of the Contractor's compliance with this Contract.

HOWEVER, THE CITY MAKES NO REPRESENTATION OR WARRANTY OF ANY NATURE WHATSOEVER TO THE CONTRACTOR CONCERNING SUCH DOCUMENTS. The Contractor again hereby acknowledges and represents that it has received, reviewed and carefully examined such documents, has found them to be complete, accurate, adequate, consistent, coordinated and sufficient for construction, and that the Contractor has not, does not, and will not rely upon any representations or warranties by the City concerning such documents, as no such representations or warranties have been or are hereby made.

(H) In the event of any conflict, discrepancy, or inconsistency among any of the documents which make up this Contract, the following shall control:

(1) As between figures given on plans and scaled measurements, the figures shall govern.

(2) As between large scale plans and small scale plans, the large scale plans shall govern.

(3) As between plans and specifications, the requirements of the specifications shall govern.

(4) As between this document and the plans or specifications, this document shall govern.

(I) Except when “days” specifically refers to “business days”, “days” shall mean “calendar days”.

(J) The City’s representative shall be the City Manager.

(K) The Project Construction Engineering & Inspection Professional (“CEI”) shall be as described in Section 12 herein.

4.

OWNERSHIP OF THE DOCUMENTS WHICH MAKE UP THE CONTRACT

The documents which make up this Contract, and each of them, as well as any other documents furnished by the City, shall remain the property of the City. The Contractor shall have the right to keep one (1) copy of the Contract upon completion of the Project; provided, however, that in no event shall the Contractor use, or permit to be used, any portion or all of such Contract on other projects without the City's prior written authorization.

5.

CONTRACTOR'S PERFORMANCE

The Contractor shall perform all of the work required, implied or reasonably inferable from this Contract including, but not limited to, the following:

(A) Construction of the Project;

(B) The furnishing of any required surety bonds and insurance;

(C) The provision or furnishing, and prompt payment therefor, of labor, supervision, services, materials, supplies, equipment, fixtures, appliances, facilities, tools, transportation, storage, power, fuel, heat, light, cooling, or other utilities, required for construction and all necessary building permits and other permits required for the construction of the Project; and

(D) The creation and submission to the City of detailed and comprehensive as-built drawings depicting all as-built construction. Said as-built drawings shall be submitted to the City upon final completion of the Project and receipt and approval of same by the City shall be a condition precedent to final payment to the Contractor.

6.

TIME FOR CONTRACTOR'S PERFORMANCE

(A) The Contractor shall commence the performance of this Contract within thirty (30) calendar days of the City’s written notice to proceed and shall diligently continue its performance to and until final completion of the

Project. The Contractor shall accomplish Substantial Completion of the Project on or before Five Hundred Forty

(540) days of the City’s written notice to proceed.

(B) The Contractor shall pay the City the sum of Five Thousand Seventy-Four Dollars ($5,574.00) per day for each and every calendar day of unexcused delay in achieving Substantial Completion beyond the date set forth herein for Substantial Completion. Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by the City, estimated at the time of executing this Contract. When the City reasonably believes that Substantial Completion will be inexcusably delayed, the City shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the City to be adequate to recover liquidated damages applicable to such delays. If and when the Contractor overcomes the delay in achieving Substantial Completion, or any part thereof, for which the City has withheld payment, the City shall promptly release to the Contractor those funds withheld, but no longer applicable, as liquidated damages.

(C) The term "Substantial Completion", as used herein, shall mean that point at which, as certified in writing by the CEI, the Project is at a level of completion in strict compliance with this Contract such that the City or its designee can enjoy beneficial use or occupancy and can use or operate it in all respects, for its intended purpose. Partial use or occupancy of the Project shall not result in the Project being deemed substantially complete, and such partial use or occupancy shall not be evidence of Substantial Completion.

(D) All limitations of time set forth herein are material and are of the essence of this Contract.

7.

FIXED PRICE AND CONTRACT PAYMENTS

(A) The City shall pay, and the Contractor shall accept, as full and complete payment for the Contractor's timely performance of its obligations hereunder the fixed price of _____________________________________________ Dollars ($____________________). The price set forth in this Subsection 7(A) shall constitute the Contract Price, which shall not be modified except by Change Order as provided in this Contract.

(B) The City shall pay the Contract Price to the Contractor in accordance with Section 218.70, Florida Statutes (“Local Government Prompt Payment Act”) and the procedures set forth in this Agreement. As provided in Section 255.05(b), Florida Statutes, no payment shall be made to the Contractor until Contractor has provided the City with an original and a certified copy of the recorded payment and performance bond. Prior to recording, the bond must be reviewed by the City Attorney. On or before the 1st day of each month after commencement of performance, but no more frequently than once monthly, the Contractor may submit a Payment Request for the period ending the 15th day of the prior month to the following:

CEI:

Dewberry Engineers, Inc.

1479 Town Center Drive, Suite D214 Lakeland, FL 33803

With copies to:

Jay Kwag Utilities Engineering Manager City of Plant City 302 West Reynolds Street Plant City, FL 33563

Kenneth Brush Procurement Director City of Plant City 302 West Reynolds Street Plant City, FL 33563

Said Payment Request shall be in such format and include whatever supporting information as may be required by the CEI, the City, or both. The City may retain five percent (5%) as retainage during the construction Project. The Contractor may request payment for ninety-five percent (95%) of that part of the Contract Price allocable to Contract requirements properly provided, and labor, materials and equipment properly incorporated in the Project, less the total amount of previous payments received from the City. Upon Substantial Completion, the City shall promptly make payment to the Contractor of the retainage, unless the City has grounds pursuant to Section 255.078(3), Florida Statutes for withholding the payment of retainage.

Each such Payment Request shall be signed by the Contractor and shall constitute the Contractor's representation that the quantity of work has reached the level for which payment is requested, that the work has been properly installed or performed in strict compliance with this Contract, and that the Contractor knows of no reason why payment should not be made as requested. Thereafter, the CEI shall review the Payment Request and may also review the work at the Project site or elsewhere to determine whether the quantity and quality of the work is as represented in the Payment Request and is in strict compliance with this Contract. The CEI shall thereupon notify the City and Contractor in writing. Upon confirmation from the CEI, the City shall make payment to the Contractor within twenty (20) business days after the date of which the Payment Request is stamped as received as provided in Section 218.74(1), Florida Statutes. The amount of each such payment shall be the amount approved for payment by the City less such amounts, if any, otherwise owing by the Contractor to the City or which the City shall have the right to withhold as authorized by this Contract. The submission by the Contractor of a Payment Request also constitutes an affirmative representation and warranty that all work for which the City has previously paid is free and clear of any lien, claim, or other encumbrance of any person whatsoever. If a Payment Request or invoice does not meet the requirements of this Contract, the City shall reject the Payment Request or invoice within twenty (20) business days after the date on which the Payment Request or invoice is stamped as received as provided in Section 218.74(1), Florida Statutes and the rejection shall be written and specify the deficiency and the action necessary to make the Payment Request or invoice proper. As a condition precedent to payment, the Contractor shall provide the City an original and a certified copy of the recorded bond as required in Section 255.05, Florida Statutes, and if required by the City, also furnish to the City a properly executed release from the surety and a Waiver of Right of Claim Against the Payment Bond in the form as provided in Section 255.05, Florida Statutes, from all subcontractors, materialmen, suppliers and other person or entity who has, or might have a claim against the City for the work done on the City’s property. Furthermore, the Contractor warrants and represents that, upon payment of the Payment Request submitted, title to all work included in such payment shall be vested in the City.

(C) When payment is received from the City, the Contractor shall immediately pay all subcontractors, materialmen, laborers and suppliers the amounts they are due for the work covered by such payment. In the event the City becomes informed that the Contractor has not paid a subcontractor, materialman, laborer, or supplier within 10 days after the Contractor’s receipt of payment, the City shall have the right, but not the duty, to issue future checks and payment to the Contractor of amounts otherwise due hereunder naming the Contractor and any such subcontractor, materialman, laborer, or supplier as joint payees. Such joint check procedure, if employed by the City, shall create no rights in favor of any person or entity beyond the right of the named payees to payment of the check and shall not be deemed to commit the City to repeat the procedure in the future. The joint check procedure shall not be required by the City if Contractor has provided City with a written consent from the surety regarding the project or payment as provided in Section 255.05(11), Florida Statutes.

(D) Neither payment to the Contractor, utilization of the Project for any purpose by the City, nor any other act or omission by the City shall be interpreted or construed as an acceptance of any work of the Contractor not strictly in compliance with this Contract.

(E) The City shall have the right to refuse to make payment and, if necessary, may demand the return of a portion, or all of, the amount previously paid to the Contractor due to:

(1) The quality of a portion, or all, of the Contractor's work not being in accordance with the requirements of this Contract;

(2) The quantity of the Contractor's work not being as represented in the Contractor's Payment Request, or otherwise;

(3) The Contractor's rate of progress being such that, in the City's opinion, Substantial Completion or final completion, or both, may be inexcusably delayed;

(4) The Contractor's failure to use Contract funds, previously paid the Contractor by the City, to pay Contractor's Project-related obligations including, but not limited to, subcontractors, laborers and material and equipment suppliers;

(5) Claims made, or likely to be made, against the City or its property;

(6) Loss caused by the Contractor; or

(7) The Contractor's failure or refusal to perform any of its obligations to the City.

In the event that the City makes written demand upon the Contractor for amounts previously paid by the City as contemplated in this Subsection 7(E), the Contractor shall promptly comply with such demand.

(F) If within thirty (30) days from the date payment to the Contractor is due, the City, without cause or basis hereunder, fails to pay the Contractor any amounts then due and payable to the Contractor, the Contractor shall have the right to cease work until receipt of proper payment after first providing ten (10) days' written notice of its intent to cease work to the City. Any payment not made within thirty (30) days after the date due shall bear interest at the rate of twelve percent (12%) per annum.

(G) When Substantial Completion has been achieved, the Contractor shall promptly notify the City and the CEI in writing and furnish to the CEI a proposed punch list listing those matters yet to be finished. The proposed punch list shall include items listed in Subsection 7(J) herein. The CEI will thereupon conduct an inspection to confirm that the work is in fact substantially complete and shall upon determining that the work is substantially complete, shall review and revise, if necessary, the proposed punch list, for a final punch list which shall include the items in Subsection 7(J) herein, and the estimated costs to complete each item on the punch list (“final punch list”). Upon its confirmation that the Contractor's work is substantially complete, the CEI will so notify the City and Contractor in writing and will therein set forth the date of Substantial Completion and furnish the final punch list of items that need to be completed for final completion. The final punch list shall be prepared by the CEI within 30 calendar days of the date of Substantial Completion and shall be delivered by the CEI to the Contractor and City within five days after the final punch list has been prepared. If the CEI, through its inspection, fails to find that the Contractor's work is substantially complete, and is required to repeat all, or any portion, of its Substantial Completion inspection, the Contractor shall bear the cost of such repeat inspection(s) which cost may be deducted by the City from any payment then or thereafter due to the Contractor. Guarantees and equipment warranties required by this Contract shall commence on the date of Substantial Completion. Within 20 business days after the final punch list is furnished to the City and Contractor by the CEI, the City shall pay the Contractor the remaining contract balance that includes all retainage previously withheld by the City less an amount equal to 150 percent of the estimated cost to complete the items on the final punch list. However, the City is not required to pay or release any amounts that are the subject of a good faith dispute made in writing pursuant to this contract, including, but not limited to, liquidated damages, or subject of a claim brought pursuant to Section 255.05, Florida Statutes.

(H) When the Project is finally complete and the Contractor is ready for a final inspection, Contractor shall notify the City and the CEI thereof in writing. Thereupon, the CEI will perform a final inspection of the Project.

If the CEI confirms that the Project is complete in full accordance with this Contract and that the Contractor has performed all of its obligations to the City hereunder, the CEI will furnish a final Approval for Payment to the City certifying to the City that the Project is complete and the Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld pursuant to this Contract. If the CEI is unable to issue its final

Approval for Payment and is required to repeat its final inspection of the Project, the Contractor shall bear the cost of such repeat inspection(s), which costs may be deducted by the City from the Contractor's final payment.

(I) If the Contractor fails to achieve final completion within 30 days of (i) Substantial Completion, or (ii) the CEI’s delivery to the Contractor of the final punch list described in Subsection 7(G) herein, whichever is later, the Contractor shall pay the City the sum of Two Thousand Seven Hundred Eighty-Seven Dollars ($2,787.00) per day for each and every calendar day of unexcused delay in achieving final completion beyond the date set forth herein for final completion of the work. Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by the City, estimated at or before the time of executing this Contract. When the City reasonably believes that final completion will be inexcusably delayed, the City shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the City to be adequate to recover liquidated damages applicable to such delays. If and when the Contractor overcomes the delay in achieving final completion, or any part thereof, for which the City has withheld payment, the City shall promptly release to the Contractor those funds withheld, but no longer applicable, as liquidated damages.

(J) Prior to being entitled to receive final payment, and as a condition precedent thereto, the Contractor shall furnish the City, in the form and manner required by City, if any, with a copy to the CEI:

(1) An affidavit that all of the Contractor's obligations to subcontractors, laborers, equipment or material suppliers, or other third parties in connection with the Project, have been paid or otherwise satisfied;

(2) Separate Waiver of Right of Claim Against the Payment Bond in the form as provided in Section

255.05, Florida Statutes from each subcontractor, lower tier subcontractor, laborer, supplier or other person or entity who has, or might have a claim against the City;

(3) Written consent from the surety regarding the project or payment as provided in Section

255.05(11), Florida Statutes; and

(4) All product warranties, operating manuals, instruction manuals and other record documents, drawings including as-built drawings, satisfactory test results and things customarily required of the Contractor, or expressly required herein or set forth in the bid documents, as a part of or prior to Project closeout.

(K) The City shall, subject to its rights set forth herein, make final payment of all sums due the Contractor within ten (10) days of the CEI's execution of a final Approval for Payment.

(L) In accordance with Section 218.76, Florida Statutes, if a dispute arises between the Contractor and the City concerning payment of a Payment Request which is not resolved within 15 days of the Payment Request, the dispute shall be determined by the City Manager pursuant to the following. Proceedings before the City Manager shall be commenced within 30 days and concluded within 45 days after the date of the Payment Request was received by the City’s representative listed in Subsection 7(B) herein. The proceedings are not subject to Chapter 120, Florida Statutes and do not constitute an administrative proceeding that prohibits a court from deciding de novo any action arising out of the dispute. If the dispute is resolved in favor of the City, interest charges begin to accrue 15 days after the City Manager’s final determination. If the dispute is resolved in favor of the Contractor, then interest begins to accrue as of the original date the payment became due.

Notwithstanding, nothing herein shall prevent the Contractor and City from resolving the matter prior to final determination of the City Manager.

(M) Notwithstanding anything herein to the contrary, Contractor shall not be paid for equipment and materials until after installation and City’s inspection and approval.

8.

INFORMATION AND MATERIAL SUPPLIED BY THE CITY

(A) The City shall furnish to the Contractor, prior to the execution of this Contract, any and all written and tangible material in its possession concerning conditions below ground at the site of the Project. Such written and tangible material is furnished to the Contractor only in order to make complete disclosure of such material as being in the possession of the City and for no other purpose. By furnishing such material, the City does not represent, warrant, or guarantee its accuracy either in whole, in part, implicitly or explicitly, or at all, and shall have no liability therefor. The City shall also furnish, if appropriate, the legal description of the Project site, and any required survey.

(B) The Contractor shall obtain all required authorizations, approvals, and permits required by this Contract.

The City shall be responsible for obtaining all easements and the payment of all necessary permit fees.

(C) The City will provide the Contractor up to two (2) copies of the Contract without charge. The Contractor will be charged, and shall pay the City, the actual cost of duplication for any additional copy of the Contract which it may require.

9.

CEASE AND DESIST ORDER

In the event the Contractor fails or refuses to perform the work as required herein, the City may instruct the Contractor to cease and desist from performing further work in whole or in part. Upon receipt of such instruction, the Contractor shall immediately cease and desist as instructed by the City and shall not proceed further until the cause for the City's instructions has been corrected, no longer exists, or the City instructs that the work may resume. In the event the City issues such instructions to cease and desist, and in the further event that the Contractor fails and refuses within seven (7) days of receipt of same to provide adequate assurance to the City that the cause of such instructions will be eliminated or corrected, then the City shall have the right, but not the obligation, to carry out the work with its own forces, or with the forces of another contractor, and the Contractor shall be fully responsible and liable for the costs of performing such work by the City. The rights set forth herein are in addition to, and without prejudice to, any other rights or remedies the City may have against the Contractor.

10.

DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE CONTRACTOR

In addition to any and all other duties, obligations and responsibilities of the Contractor set forth in this Contract, the Contractor shall have and perform the following duties, obligations and responsibilities to the City:

(A) The Contractor is again reminded of its continuing duties set forth in Subsection 3(G), which are by reference hereby incorporated in this Subsection 10(A). The Contractor shall not perform work without adequate plans and specifications, or, as appropriate, approved shop drawings, or other submittals. If the Contractor performs work knowing or believing it involves an error, inconsistency or omission in the Contract without first providing written notice to the CEI and City, the Contractor shall be responsible for such work and pay the cost of correcting same.

(B) All work shall strictly conform to the requirements of this Contract.

(C) The work shall be strictly supervised, the Contractor bearing full responsibility for any and all acts or omissions of those engaged in the work on behalf of the Contractor.

(D) The Contractor hereby warrants that all labor furnished under this Contract shall be competent to perform the tasks undertaken, that the product of such labor shall yield only first-class results, that all materials and equipment provided shall be new and of high quality, that the completed work will be complete, of high quality, without defects, and that all work strictly complies with the requirements of this Contract. Any work not strictly complying with the requirements of this Subsection shall constitute a breach of the Contractor's warranty.

(E) Inspection Upon Arrival, During Installation, And After Installation. Upon arrival of any materials, supplies, systems, equipment, fixtures, furnishings, and other items at the Project site, whether procured by the City or Contractor, Contractor shall inspect such items for damage, for compliance with the Contract Documents and for compliance with all shipping documents and shall arrange for the proper storage and security of such items. Contractor shall also provide for and monitor the proper and timely installation of all such items on the Project. After such items are installed or made ready for use, Contractor shall again inspect all such items for damage and shall arrange for and monitor testing of all such items for compliance with the Contract Documents and readiness for use on the Project. If damage is discovered, Contractor shall immediately notify, in writing, the supplier, shipper, and City’s Representative of such damage and shall lodge and pursue all appropriate claims associated with such damages.

(F) The Contractor shall comply with all legal requirements applicable to the work, including, but not limited to, obtaining all required permits and licenses.

(G) The Contractor shall employ and maintain at the Project site only competent supervisory personnel. Key supervisory personnel assigned by the Contractor to this Project are as follows:

NAME FUNCTION

So long as the individuals named above remain actively employed or retained by the Contractor, they shall perform the functions indicated next to their names unless the City agrees to the contrary in writing. In the event one or more individuals not listed above subsequently assumes one or more of those functions listed above, the Contractor shall be bound by the provisions of this Subsection 10(G) as though such individuals had been listed above.

(H) Within five (5) calendar days of the Effective Date of this Agreement, the Contractor shall provide to the City and the CEI the Contractor's schedule for completing the work. Such schedule shall be in a form acceptable to the City and the Contractor shall comply with the schedule. The Contractor's schedule shall be updated no less frequently than monthly (unless the parties otherwise agree in writing) and shall be updated to reflect conditions encountered from time to time and shall apply to the total Project. Each such revision shall be furnished to the City and the CEI. Strict compliance with the requirements of this Subsection 10(H) shall be a condition precedent to payment to the Contractor, and failure by the Contractor to strictly comply with said requirements shall constitute a material breach of this Contract.

(I) The Contractor shall keep an updated copy of this Contract at the site. Additionally, the Contractor shall keep a copy of approved shop drawings and other submittals. All of these items shall be available to the City and the CEI at all regular business hours. Upon final completion of the work, all of these items shall be finally updated and provided to the City and shall become the property of the City.

(J) Shop drawings and other submittals from the Contractor do not constitute a part of the Contract. The Contractor shall not do any work requiring shop drawings or other submittals unless such shall have been approved in writing by the CEI. All work requiring approved shop drawings or other submittals shall be done in strict compliance with such approved documents. However, approval by the CEI or the City shall not be evidence that work installed pursuant thereto conforms with the requirements of this Contract. The City and the CEI shall have no duty to review partial submittals or incomplete submittals. The Contractor shall maintain a submittal log which shall include, at a minimum, the date of each submittal, the date of any resubmittal, the date of any approval or rejection, and the reason for any approval or rejection. The Contractor shall have the duty to carefully review, inspect and examine any and all submittals before submission of same to the City or the CEI.

(K) The Contractor shall maintain the Project site in a reasonably clean condition during performance of the work. Upon final completion, the Contractor shall thoroughly clean the Project site of all debris, trash and excess materials or equipment.

(L) At all times relevant to this Contract, the Contractor shall permit the City and the CEI to enter upon the Project site and to review or inspect the work without formality or other procedure.

(M) Within five (5) calendar days of the Effective Date of this Agreement, the Contractor shall prepare and present to the City and the CEI the Contractor's Schedule of Values apportioning the Contract Price among the different elements of the Project for purposes of periodic and final payment. The Contractor's Schedule of Values shall be presented in whatever format, with such detail, and backed up with whatever supporting information the CEI or the City requests. The Contractor shall not front-end load or imbalance its Schedule of Values, nor artificially inflate any element thereof. The violation of this provision by the Contractor shall constitute a material breach of this Contract. The Contractor's Schedule of Values will be utilized for the Contractor's Payment Requests but shall only be so utilized after it has been acknowledged in writing by the CEI and the City.

(N) Contractor shall perform the work in accordance with the Contract Documents. Contractor shall supervise and direct the work, using the Contractor’s best skill and attention. 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 this Contract, unless expressly specified in writing under the Contract Documents. Contractor shall be responsible to the City for acts and omissions of the Contractor’s employees, sub-contractors, suppliers, and their agents and employees, and other persons or entities performing portions of the work under a contract with the Contractor or his sub-contractors or suppliers, of any tier. The Contractor shall not be relieved of obligations to perform the work in accordance with the Contract Documents either by activities or duties of the CEI, or the City, in administration of the Contract, or by tests, inspections or approvals required or performed by persons other than the Contractor. Contractor shall be solely responsible for jobsite safety. In the event the Contractor determines that any construction activities required under the Contract Documents may not be performed in a safe manner, Contractor shall give immediate written notice to the City and CEI and shall not proceed with that portion of the work without further written instructions from the City and CEI.

11.

INDEMNITY

Contractor shall indemnify and hold the City, and its officers and employees, harmless from liabilities, damages, losses, and costs, including, but not limited to, reasonable attorneys’ fees, to the extent caused by the negligence, recklessness or intentional wrongful misconduct of Contractor or other persons employed or utilized by Contractor in the performance of this Contract. Contractor’s obligations under this Section shall survive the termination of this Agreement. Nothing herein shall be construed to obligate Contractor to indemnify the City for damages to persons or property caused by an act, omission, or default of the City.

12.

THE PROJECT CONSTRUCTION ENGINEERING & INSPECTION PROFESSIONAL (“CEI”)

The Construction Engineering & Inspection Professional for this Project is Dewberry Engineers, Inc. (the "CEI"). In the event the City should find it necessary or convenient to replace the CEI, the City shall retain a replacement CEI and the role of the replacement CEI shall be the same as the role of the CEI. Unless otherwise directed by the City in writing, the CEI will perform those duties and discharge those responsibilities allocated to the CEI in this Contract. The duties, obligations and responsibilities of the CEI shall include, but are not limited to, the following:

(A) Unless otherwise directed by the City in writing, the CEI shall act as the City's agent from the effective date of this Contract until final payment has been made, to the extent expressly set forth in this Contract.

(B) Unless otherwise directed by the City in writing, the City and the Contractor shall communicate with each other in the first instance through the CEI.

(C) When requested by the Contractor in writing, the CEI shall render interpretations necessary for the proper execution or progress of the work.

(D) The CEI shall draft proposed Change Orders.

(E) The CEI shall approve, or respond otherwise as necessary concerning shop drawings or other submittals received from the Contractor.

(F) The CEI shall be authorized to refuse to accept work which is defective or otherwise fails to comply with the requirements of this Contract. If the CEI deems it appropriate, the CEI shall be authorized to call for extra inspection or testing of the work for compliance with requirements of this Contract.

(G) The CEI shall review the Contractor's Payment Requests and shall approve in writing those amounts which, in the opinion of the CEI, are properly owing to the Contractor as provided in this Contract.

(H) The CEI shall, upon written request from the Contractor, perform those inspections required in Section 7 hereinabove.

(I) The CEI shall be authorized to require the Contractor to make changes which do not involve a change in the Contract Price or in the time for the Contractor's performance of this Contract consistent with the intent of this Contract.

(J) THE DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE CONTRACTOR UNDER THIS CONTRACT SHALL IN NO MANNER WHATSOEVER BE CHANGED, ALTERED, DISCHARGED, RELEASED, OR SATISFIED BY ANY DUTY, OBLIGATION OR RESPONSIBILITY OF THE CEI. THE CONTRACTOR IS NOT A THIRD-PARTY

BENEFICIARY OF ANY CONTRACT BY AND BETWEEN THE CITY AND THE CEI. IT IS EXPRESSLY

ACKNOWLEDGED AND AGREED THAT THE DUTIES OF THE CONTRACTOR TO THE CITY ARE INDEPENDENT

OF, AND ARE NOT DIMINISHED BY, ANY DUTIES OF THE CEI TO THE CITY.

13.

CLAIMS BY THE CONTRACTOR

Claims by the Contractor against the City are subject to the following terms and conditions:

(A) All Contractor claims against the City shall be initiated by a written claim submitted to the City and the CEI. Such claim shall be received by the City and the CEI no later than seven (7) calendar days after the event, or the first appearance of the circumstances, causing the claim, and same shall set forth in detail all known facts and circumstances supporting the claim.

(B) The Contractor and the City shall continue their performance hereunder regardless of the existence of any claims submitted by the Contractor.

(C) In the event the Contractor discovers previously concealed and unknown site conditions which are materially at variance from those typically and ordinarily encountered in the general geographical location of the Project, the Contract Price may be modified, either upward or downward, upon the written claim made by either party within seven (7) calendar days after the first appearance to such party of the circumstances. As a condition precedent to the City having any liability to the Contractor due to concealed and unknown conditions, the Contractor must give the City and the CEI written notice of, and an opportunity to observe, such condition prior to disturbing it. The failure by the Contractor to give the written notice and make the claim as provided by this Subsection 13(C) shall constitute a waiver by the Contractor of any rights arising out of or relating to such concealed and unknown condition. As there may be a number of factors which may delay the performance of the contract, the measured mile method shall not be used to calculate additional compensation pursuant to this Section. All such claims shall be based on actual documented costs.

(D) In the event the Contractor seeks to make a claim for an increase in the Contract Price, as a condition precedent to any liability of the City therefor, the Contractor shall strictly comply with the requirements of Subsection 13(A) above and such claim shall be made by the Contractor before proceeding to execute any additional or changed work. Failure of the condition precedent to occur shall constitute a waiver by the Contractor of any claim for additional compensation.

(E) In connection with any claim by the Contractor against the City for compensation in excess of the Contract Price, any liability of the City for the Contractor's cost shall be strictly limited to direct cost incurred by the Contractor and shall in no event include indirect cost or consequential damages of the Contractor. The City shall not be liable to the Contractor for claims of third-parties including subcontractors, unless and until liability of the Contractor has been established therefor in a court of competent jurisdiction.

(F) In the event the Contractor should be delayed in performing any task which at the time of the delay is then critical, or which during the delay becomes critical, as the sole result of any act or omission by the City or someone acting in the City's behalf, or by City-authorized Change Orders, unusually bad weather not reasonably anticipatable, fire or other Acts of God, the date for achieving Substantial Completion, or, as applicable, final completion, shall be appropriately adjusted by the City upon the written claim of the Contractor to the City and the CEI. Contractor’s sole remedy against City in the event of such delay of a critical task shall be the right to seek an extension of time. Under no circumstances shall any delay give rise to any right to damages or additional compensation from the City. A task is critical within the meaning of this Subsection 13(F) if, and only if, said task is on the critical path of the Project schedule so that a delay in performing such task will delay the ultimate completion of the Project. Any claim for an extension of time by the Contractor shall strictly comply with the requirements of Subsection 13(A) above. If the Contractor fails to make such claim as required in this Subsection 13(F), any claim for an extension of time shall be waived.

14.

SUBCONTRACTORS

Upon execution of this Contract, the Contractor shall identify to the City, in writing, those parties to be used as subcontractors on the Project. The City shall, in writing, state any objections the City may have to one or more of such subcontractors. The Contractor shall not enter into a subcontract with any subcontractor to whom the City objects, or any other subcontractor not disclosed to the City. All subcontracts shall afford the Contractor rights against the subcontractor which correspond to those rights afforded to the City against the Contractor herein, including those rights of Contract termination as set forth hereinbelow. Under no circumstances shall Contractor allow any subcontractor to further delegate or assign any work to any other subcontractor.

15.

CHANGE ORDERS

One or more changes to the work within the general scope of this Contract, may be ordered by Change Order. The Contractor shall proceed with any such changes, and same shall be accomplished in strict accordance with the following terms and conditions:

(A) Change Order shall mean a written order to the Contractor executed by the City and the CEI after execution of this Contract, directing a change in the work and may include a change in the Contract Price or the time for the Contractor's performance, or any combination thereof.

(B) Any change in the Contract Price resulting from a Change Order shall be determined as follows:

(1) By mutual agreement between the City and the Contractor as evidenced by (a) the change in the Contract Price being set forth in the Change Order, (b) such change in the Contract Price, together with any conditions or requirements relating thereto, being initialed by both parties and (c) the Contractor's execution of the Change Order; or

(2) If no mutual agreement occurs between the City and the Contractor, the change in the Contract

Price, if any, shall be derived by determining the reasonable actual costs incurred or savings achieved, resulting from revisions in the work. Such reasonable actual costs or savings shall include a component for direct jobsite overhead and profit but shall not include home-office overhead or other indirect costs or components. Any such costs or savings shall be documented in the format, and with such content and detail as the City or the CEI requires.

(C) The execution of a Change Order by the Contractor shall constitute conclusive evidence of the Contractor's agreement to the ordered changes in the work, this Contract as thus amended, the Contract Price and the time for performance by the Contractor. The Contractor, by executing the Change Order, waives and forever releases any claim against the City for additional time or compensation for matters relating to or arising out of or resulting from the work included within or affected by the executed Change Order.

(D) The City’s representative in this agreement is the City Manager. No change orders or other modifications to this agreement shall be effective unless in writing and signed by the City Manager.

(E) The Contractor shall notify and obtain the consent and approval of the Contractor's surety with reference to all Change Orders if such notice, consent or approval are required by the City, the Contractor's surety or by law. The Contractor's execution of the Change Order shall constitute the Contractor's warranty to the City that the surety has been notified of, and consents to, such Change Order and the surety shall be conclusively deemed to have been notified of such Change Order and to have expressly consented thereto.

16.

DISCOVERING AND CORRECTING DEFECTIVE OR INCOMPLETE WORK

(A) In the event that the Contractor covers, conceals or obscures its work in violation of this Contract or in violation of a directive from the City or the CEI, such work shall be uncovered and displayed for the City's or CEI's inspection upon request, and shall be reworked at no cost in time or money to the City.

(B) If any of the work is covered, concealed or obscured in a manner not covered by Subsection 16(A) above, it shall, if directed by the City or the CEI be uncovered and displayed for the City's or CEI's inspection. If the uncovered work conforms strictly with this Contract, the costs incurred by the Contractor to uncover and subsequently, replace such work shall be borne by the City. Otherwise, such costs shall be borne by the Contractor.

(C) The Contractor shall, at no cost in time or money to the City, correct work rejected by the City or by the CEI as defective or failing to conform to this Contract. Additionally, the Contractor shall reimburse the City for all testing, inspections and other expenses incurred as a result thereof.

(D) In addition to its warranty obligations set forth elsewhere herein, the Contractor guarantees and warrants the quality of the Project for a period of twelve (12) months and shall be specifically obligated to correct any and all defective or nonconforming work for a period of twelve (12) months following final completion upon written direction from the City.

(E) The City may, but shall in no event be required to, choose to accept defective…