3-Exhibit E Supplemental Contract Terms Conditions.pdf

SUPPLEMENTAL CONTRACT

TERMS AND CONDITIONS

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EXHIBIT E

SUPPLEMENTAL CONTRACT TERMS AND CONDITIONS

1.0 DEFINITIONS

Wherever used in these Supplemental Contract Terms and Conditions or in the other Contract Documents, the following terms shall have the meanings indicated which are applicable to both the singular and plural thereof and applicable whether or not beginning with an upper case or lowercase letter.

1.2 "As directed," "as permitted," "reviewed," "acceptable," "approved," or words of similar importance mean the direction, requirements, permission, approval, or acceptance of Engineer, unless stated otherwise.

1.3 "As shown," "as indicated," "as detailed," or works of similar import refer to the Drawings unless stated otherwise.

1.4 "Availability Date"-- The earliest date the Contractor will be able to commence the work specified in these Contract Documents.

1.5 "Bid"-- The offer or proposal of the Contractor setting forth the not-to-exceed price for the work to be performed. The term Proposal is synonymous with Bid. Bid and Proposal are used interchangeably throughout this Contract.

1.6 "Bonds" -- Bid, performance, payment bonds and other instruments of security.

1.8 "Demobilization" -- The removal of all equipment and material from the work location and doing so in a manner which leaves the work site in its original condition, or in a condition acceptable to the Owner, or as specified by the Contract.

1.9 "Environmental Pollution" -- The presence of chemical, physical or biological elements or agents which adversely affect human health or welfare;

unfavorably alter ecological balance of importance to human life; affect other species of importance to man; or degrade the utility of the environment for aesthetic or recreational purposes. The control of environmental pollution requires consideration of air, water and land and involves noise, solid waste-management and management of radiant energy and radioactive materials, as well as other pollutants.

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1.10 "Final Acceptance" -- The date when the construction of the project is complete in accordance with the Contract Documents so that the entire project can be utilized for the purposes for which it is intended and all monies due Contractor are eligible for payment in the Final Application for Payment.

1.11 "Inspector" -- The engineering or technical observer of the work duly authorized or appointed by Engineer, limited to the particular duties entrusted to them.

1.12 "Major Equipment" -- The major equipment items which are to be furnished and installed under the Contract.

1.14 "Mobilization" -- The transporting, positioning, and readying of all equipment and personnel required to complete the work as specified in the Contract. Mobilization is complete when the first cubic yard of fill is placed within a specified shorefront Acceptance Section.

1.15 "Modification" -- (a) A written amendment of the Contract Documents signed by both parties, (b) a Change Order, or (c) a Field Order. A modification may only be issued after the effective date of the Agreement.

1.16 "Notice of Intent to Award" – Posting of the Owner’s intent to award the Contract.

1.17 "Plans" -- This term is synonymous with the term "Drawings."

1.18 "Provide" -- As used in the Specifications means furnish and install.

1.19 “Town” – The Town of Hilton Head Island, South Carolina. This term is synonymous with the term “Owner”.

2.0 DIMENSIONS AND DRAWINGS

2.1 Dimensions and Measurements

2.1.1 Finished surfaces in all cases shall conform with the lines, grades, cross-sections, and dimensions shown on the Drawings. Deviations from the Drawings, as may be required by the exigencies of construction, will in all cases be determined by the Engineer and authorized in writing by the Engineer or by Owner. If additional dimensions are required, they shall be requested from the Engineer.

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2.1.2 Figures, distances, dimensions, elevations, etc. marked on Drawings shall be followed in preference to scaled measurements. The Contractor shall not use the Drawings to determine distances, dimensions, or other values through scaling. The Contractor shall compare all Drawings and verify the figures before laying out the Work and will be responsible for any errors which may have been avoided thereby.

2.2 Additional Drawings and Instructions

2.2.1 The Drawings and Specifications are intended to be comprehensive and to indicate in detail the Scope of Work. Should it appear that the Work to be done, or any of the matters relative thereto, is not sufficiently detailed or explained in these Contract Documents, including the Drawings, Contractor shall apply to Engineer for such further explanations as may be necessary and shall conform thereto as part of this Contract, so far as may be consistent with the terms of the Contract.

2.2.2 In addition to these explanations Engineer may furnish additional Drawings and instructions from time-to-time during the progress of the Work to clarify or to define in greater detail the intent of the Specifications and Drawings, and Contractor shall make their Work conform to all such additional Drawings and instructions.

3.0 OWNER-CONTRACTOR-ENGINEER RELATIONS

3.1 Rights-of-Way. Owner will provide limited rights-of-way and easements necessary for equipment and crew access to the beach in the areas where Work is to be performed by Contractor under this Contract. The Contractor shall be responsible for all damage to private and public property that is the result of the Contractor’s actions. The Contractor shall repair all such damages at the Contractor’s expense to restore equipment access or storage locations utilized during the Work, including but not necessarily limited to paving, fencing, boardwalks, dunes and vegetation, etc. All site grading conditions shall be returned to “as found.” The Contractor shall document via video and photography the condition of all access locations prior to initiating any construction activity. A copy of the videos and photographs shall be provided to the Owner.

3.2 Suspension of Work. Owner may at any time suspend the Work, or any part thereof, by giving reasonable notice to Contractor. The Work shall be

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resumed by Contractor on the date fixed in a written notice from Owner to Contractor. If suspension of the Work is due to no fault of Contractor and not otherwise authorized by other provisions of the Contract Documents, Owner will reimburse Contractor for such expense, if any, which is incurred by Contractor in connection with the Work under this Contract as a result of such suspension which would not have been incurred or reasonably required if there had not been such suspension; provided that there shall be no reimbursement if the period of suspension occurs after expiration of the time allowed for completion of the Work, exclusive of any extension of time because of avoidable delays.

3.3 Archaeological Finds. Notwithstanding anything to the contrary herein, in the event any archaeological artifacts within the Project are discovered during the course of the Work, the Owner or the State of South Carolina shall have and retain all right, title, and interest to such artifacts and shall have the further right, during the course of the Contract, to suspend the Work and/or to examine or cause to have examined, the site of archaeological finds and to explore for, discover, recover and remove such artifacts from the site of the Work. In the event the work of archaeological examination and related work delays Contractor's Work, they shall be entitled to an extension of time to complete the Work equal to the number of days they are thus delayed – if allowed by Permit and no additional compensation shall be paid.

3.4 Protection of Existing Structures. Unless otherwise indicated on the Drawings or unless otherwise taken care of by the Owner thereof, all existing groins and breakwaters, piers, utilities, seawalls, pools, dune overwalks, boardwalks, and all other structures of any nature, whether below or above ground, that may be affected by the Work shall be protected and maintained by Contractor and shall not be disturbed or damaged by them during the progress of the Work. Should Contractor disturb, disconnect, or damage any lawn, utility or any structure, all expenses of whatever nature arising from such disturbance or the replacement or repair thereof shall be borne by Contractor. This includes impacts resulting from saltwater spray originating from leaking or broken pipelines.

3.5 Assumption of Risks. Those areas of the Work within the full Project limits that are under the active control of the Contractor, including but not limited to access, staging, and storage areas, those portions of the beach fill where Work is actively taking place and the Owner and general public are thus excluded from beneficial use of the beach, and those areas where

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operations, excavation, and transport are occurring during the Work shall be under Contractor's care and charge and they shall be responsible therefore until the completion and Final Acceptance by Owner of all of the Work under or implied by this Contract. Contractor shall rebuild, replace, repair, restore, and make good all injuries, damages, re-erection, and repairs occasioned or rendered necessary by causes of any nature whatsoever, except those determined to be the result of a named tropical storm or hurricane event, or other similar Act of God, which results in a declared emergency for Beaufort County, SC, as determined by the State or Federal Emergency Management Agencies, to all or any portions of the Work, except as otherwise stipulated. This requirement shall not relieve the Contractor of the responsibility to rebuild, replace, repair, restore, and make good all injuries, damages, re-erection, and repairs occasioned or rendered necessary by the actions of the Contractor, their employees, subcontractors, or equipment regardless of location. Should the Contractor refuse, neglect, or delay compliance with these requirements, the damages may be restored by the Owner, and the cost thereof will be deducted from any amounts due or to become due the Contractor.

3.6 Acceptance of Contractor's Plans. The acceptance by Engineer of any Drawing or any method of work proposed by Contractor shall not relieve Contractor of any of their responsibility for any errors therein and shall not be regarded as any assumption of risk or liability by Owner or any officer or employee thereof; and Contractor shall have no claim under the Contract on account of the failure or partial failure or inefficiency of any plan or method so accepted. Such acceptance shall be considered to mean merely that Engineer has no objection to Contractor's using, upon their own full responsibility, the plan or method proposed.

3.7 Suggestions to Contractor. Any plan or method of work suggested by Engineer to Contractor, but not specified or required, if adopted or followed by Contractor in whole or in part, shall be used at the risk and responsibility of Contractor, and Engineer and Owner shall assume no responsibility therefore.

3.8 Inspection. The Engineer and/or their designated representatives may direct the maintenance of the gages, ranges, baseline monuments/stations, location marks and limit marks in proper order and position, but the presence of the Inspector shall not relieve the Contractor of the responsibility for the proper execution of the Work in accordance with the Specifications and Drawings.

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4.0 MATERIALS AND WORKMANSHIP

4.1 Removal of Condemned or Misplaced Materials, Structures, and Work.

4.1.1 Contractor shall remove from the site of the Work, without delay, all rejected materials, or Work of any kind brought to or incorporated in the Work, and upon their failure to do so, or to make satisfactory progress in so doing within two working days after the service of a written notice from Engineer, the rejected materials or Work may be removed by Owner and the cost of such removal shall be taken out of the money that may be due or may become due Contractor on account of or by virtue of this Contract. No such rejected material shall again be offered for use by Contractor under this Contract.

4.1.2 Should the Contractor during the progress of the Work lose, dump, sink, or misplace any material, plant, machinery, or appliance, which in the opinion of the Owner or Engineer may be dangerous to or obstruct navigation, the Contractor shall, at their own expense recover and remove the same with utmost dispatch. The Contractor shall give the immediate notice, with description and location of such obstructions, to the Engineer or their representative, and when required, shall mark or buoy such obstructions, until the same are removed. Should the Owner or Engineer discover such material, plant, machinery, equipment, or appliance, the Owner or Engineer may locate through electronic means or buoy the material, plant, machinery, equipment, or appliance, and may notify the Contractor of its location.

Removal of the material, plant, machinery, equipment, or appliance, shall be the responsibility of the Contractor and the Contractor will pay for cost of the removal. Should the Contractor refuse, neglect or delay compliance with the above requirements, such obstruction may be removed by the Owner and the cost of marking and/or removal may be deducted from any money due or to become due to the Contractor. The liability of the Contractor for the removal of the vessel wrecked or sunk without fault or negligence shall be limited to that provided in Section 15, 19 and 20 of the River and Harbor Act of March 3, 1899 (33-U.S.C. 409 and 410 et seq.)

4.2 Final Clean-Up. Final clean-up shall include the removal of all of the Contractor's plant and equipment either for disposal or reuse. Plant and/or equipment to be disposed of shall only be disposed of in a manner and at locations approved by the Engineer and Owner. Unless otherwise approved in writing by the Owner, the Contractor will not be permitted to abandon cable wire, marine mattress material, SGC-7 geogrid material, rocks, or other equipment in the access, staging, and storage area, water areas, or other areas adjacent to, or within the Work site. Any stakes, pipes or other markers placed by the Contractor must be removed as part of the final clean-up. All stakes, including grade stakes, placed as part of the construction activities, shall be removed completely and disposed of properly. No grades stakes shall be left buried in the backfill.

5.0 INSURANCE, LEGAL RESPONSIBILITY, AND SAFETY

5.1 Deliveries to Contractor. Delivery by Owner or any of its agents or representatives to Contractor of any Drawings, samples, notices, letters, communications, or other things may be made by personal delivery to Contractor; by personal delivery to Contractor's foreman or superintendent at the site of the work; by delivery to Contractor's business address specified in the bid or specified in a written notice of change of address delivered to Owner; or by delivery to Contractor's office at the site of the Work.

Delivery to Contractor's above-mentioned business address or to Contractor's office at the site of the Work may be made either by personal delivery to such address or office or by depositing the thing to be delivered in the United States mail, postage prepaid, addressed to such address or office.

5.2 Protection of Persons and Property

5.2.1 Contractor shall be solely and completely responsible for conditions of the job site, including safety of all persons and property during performance of the Work. This requirement shall apply continuously and not be limited to normal working hours.

Contractor shall furnish such watchmen, guards, fencing, barriers, warning signs, lights, and walkways, and shall take all other precautions as shall be necessary to prevent damage to persons or property. All existing structures, dunes, vegetation and improvements in the vicinity of the Work shall be protected by Contractor, and if such property is damaged, injured, or destroyed by Contractor, their employees, Subcontractors, or agents, it shall be restored to a condition as good as when they entered upon the Work.

5.2.2 The Contractor shall maintain and move as necessary a restrictive barrier around the any active area where Work may present a safety hazard to the public.

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5.2.3 The duty of Engineer to conduct construction inspection of Contractor's performance does not include any review of the adequacy of Contractor's safety measures in, on, or near the construction site or sites. Engineer has not been retained or compensated to provide design and construction review services relating to Contractor's safety precautions or to means, methods, techniques, sequences, or procedures required for Contractor to perform their Work.

5.3 Accident Prevention. In order to provide safety controls for protection to the life and health of employees and other persons; for prevention of damage to property, materials, supplies and equipment; and for avoidance of Work interruptions in the performance of this contract, the Contractor shall comply with all pertinent provisions of Corps of Engineers Manual, EM 385-1-1, dated September 2008, entitled "Safety and Health Requirements Manual", as amended, or its successor, and will also take or cause to be taken such additional measures as the Engineer may determine to be reasonably necessary for this purpose.

The Engineer will notify the Contractor of any noncompliance with the foregoing provisions and the action to be taken. The Contractor shall, after receipt of such notice, immediately take corrective action. Such notice, when delivered to the Contractor or their representative at the site of the Work, shall be deemed sufficient for the purpose. If the Contractor fails or refuses to comply promptly, the Engineer may issue an order stopping all or part of the Work until satisfactory corrective action has been taken. No part of the time lost due to any such stop orders shall be made the subject of claim for extension of time or for excess costs or damages by the Contractor.

5.4 Project Safety Sign. Contractor shall erect and maintain a safety bulletin board at job sites, or on dredges, within 15 calendar days after commencement of Work which displays data reflecting the overall job safety record on a current basis. The sign shall indicate the number of days on the job and the number of days since a reportable lost time personal injury or material or equipment damage loss of $100.00 or greater. The poster Safety and Health Protection On the Job as required by OSHA, Department of Labor, for all private industrial operations shall be posted with a copy of the approved Accident Prevention Plan, safety posters and literature as provided by the Contractor's insurance company and the Engineer or Owner. Such posting shall be in a weatherproof bulletin case, SGC-9 whereby it is easily legible, adequately protected from the elements and cannot be removed by an unauthorized person.

6.0 PROGRESS AND COMPLETION OF WORK

6.1 Commencement of Contract Time; Notice to Proceed. The Contract time will commence to run on the day indicated in the Notice to Proceed issued by the Owner.

6.2 Pre-Construction Conference. A pre-construction conference with the

Owner, Engineer, and Contractor will be held prior to commencement of Work.

6.3 Notice of Starting Work. Contractor shall notify Owner forty-eight (48) hours before starting Work at the site of the Work of their intentions to do

so. In case of temporary suspension of Work they shall give reasonable notice before resuming Work.

6.4 Time of Completion. Contractor shall promptly begin the Work and prosecute the same in a continuous and satisfactory manner until the Work under this Contract is completed and ready for full use within the time specified in the Agreement. Once Mobilization has been deemed to be complete, which is the time at which excavation has begun at the Work, the Contractor may not remove from the project site any equipment determined by the Engineer to be necessary to complete the Work in accordance with the Contract.

6.5 Equipment and Methods.

6.5.1 The Work under this Contract shall be prosecuted with all materials, tools, machinery, apparatus, and labor, and by such methods as are necessary to the complete execution of everything described, shown, or reasonably implied in the Contract Documents. If at any time before the beginning or during the progress of the Work, any part of Contractor's plant or equipment or any of their methods of execution of the Work appear to Engineer to be inefficient or inadequate to ensure the required quality or rate of progress of the Work, they may request and Owner may order Contractor to increase or improve their facilities or methods and Contractor shall comply promptly with such orders, but neither compliance with such orders nor failure of Owner to issue such orders shall relieve Contractor from their obligation to secure the quality of the Work and the rate of progress

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or production required. Contractor alone shall be responsible for the safety, adequacy, and efficiency of their equipment and methods.

6.5.2 The Contractor agrees to keep on the job sufficient plant, personnel, and equipment necessary to meet the requirements of the Work. The plant shall be in satisfactory operating condition and capable of safely and efficiently performing the Work set forth in the Specifications and the plant shall be subject to inspection by the Engineer at all times. The Contractor is responsible for the safety of the plant operations.

6.6 Unfavorable Weather and Other Conditions. During unfavorable weather and other unfavorable conditions the Contractor shall pursue only such portions of the work as shall not be damaged thereby. No portions of the Work whose satisfactory quality or efficiency will be affected by unfavorable conditions shall be constructed while these unfavorable conditions exist unless, by special means or precautions, Contractor shall be able to overcome them to the satisfaction of the Owner.

6.7 Alterations, Deletions, and Extra Work

6.7.1 Owner reserves the right to increase or decrease the quantity of any item or portion of the Work, or to omit portions of the Work, as may be deemed necessary or advisable by Owner and, also, to make such alterations or deviations, additions to, or deletions from the Work or the Specifications and Drawings as may be determined during the progress of the Work to be necessary and advisable for the proper completion thereof. Upon written order of Owner, Contractor shall proceed with the Work as increased, decreased, or altered. Such Work shall be considered a part of and subject to all terms and requirements of the Contract Documents.

6.7.2 Engineer is authorized to order, on behalf of Owner, minor changes in the Work which do not involve extra cost to Owner and which do not change the character of the Work. Engineer is not authorized to order any other changes, alterations, deletions, additions, or extra Work, unless they are approved in a Change Order properly authorized in writing by Owner.

6.7.3 No claim of Contractor for extra compensation because of any change, alteration, deletion, addition, or extra Work will be paid or be payable unless a written Order for such change, alteration, SGC-11 deletion, addition, or extra Work is signed by the authorized representative of Owner. All adjustments, if any, in the Contract Price to be paid to Contractor because of any such change, alteration, deletion, addition, or extra Work will be made only to the extent and in the manner provided under the paragraph, "Payment For Extra Work and Work Deleted" (Section 7.3) in these Supplemental Contract Terms and Conditions. Such alterations shall in no way affect, violate, or make void this Contract or any part thereof, except that which is necessarily affected by such alterations and is clearly the evident intention of the parties to this Contract.

6.7.4 In case of neglect or refusal by Contractor to perform any extra Work which may be authorized by Owner or to make satisfactory progress in its execution, Owner may employ any person or persons to perform such Work and Contractor shall not in any way interfere with or molest the person or persons so employed.

6.7.5 When any changes decrease the amount of Work to be done, such changes shall not constitute a basis or reason for any claim by Contractor for extra compensation or damages on account of any anticipated profits which they thereby lose on the omitted Work, and Contractor shall not be entitled to any compensation or damages therefore.

6.8 Delays

6.8.1 Avoidable Delays

6.8.1.1 Avoidable delays in the prosecution or completion of the Work shall include all delays which might have been avoided by the exercise of care, prudence, safety, foresight, or diligence on the part of Contractor.

6.8.1.2 Delays in the prosecution of parts of the Work which may in themselves be unavoidable but do not necessarily prevent or delay the prosecution of other parts of the Work nor the completion of whole Work within the time herein specified; reasonable loss of time resulting from the necessity of submitting drawings to Engineer for approval and from the making of surveys, measurements, and inspection; and such interruptions as may occur in the prosecution of the Work on account of the reasonable interference of other Contractors employed by Owner, which do not necessarily prevent

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the completion of the whole Work within the time herein specified, will be deemed avoidable delays within the meaning of this Contract.

6.8.2 Unavoidable Delays. Unavoidable delays in the prosecution or completion of the Work under this Contract shall include all delays which may result through causes beyond the control of Contractor and which they could not have provided against by the exercise of care, prudence, foresight, or diligence. Orders issued by Owner changing the amount of Work to be done, the quantity of material to be furnished, or the manner in which the Work is to be prosecuted; failure of Owner to provide rights-of-way as provided herein; and unforeseen delays in the completion of the Work of other Contractors under Contract with Owner will be considered unavoidable delays, so far as they necessarily interfere with Contractor's completion of the Work. Delays due to adverse weather conditions or tides will not be regarded as unavoidable delays as Contractor should understand that such conditions are to be expected and plan their Work accordingly.

6.8.3 Notice of Delays

6.8.3.1 Wherever Contractor foresees any delay in the prosecution of the Work and, in any event, immediately upon the occurrence of any delay, they shall notify Engineer in writing of the probability of the occurrence of such delay and its cause in order that Engineer may determine whether the delay is to be considered avoidable or unavoidable, how long it continues, and to what extent the prosecution and completion of the Work are to be delayed thereby.

6.8.3.2 After the completion of any part or the whole of the Work, Engineer, in approving the amount due Contractor, will assume that any and all delays which have occurred in its prosecution and completion have been avoidable delays, except such delays as shall have been called to the attention of Engineer at the time of their occurrence and later found by them to have been unavoidable.

Contractor shall make no claims that any delay not called to the attention of Engineer at the time of its occurrence has been an unavoidable delay.

6.9 Extension of Time (As Allowed by Permit)

6.9.1 For Unavoidable Delays. For delays which are unavoidable, as determined by Owner, Contractor will be allowed, if they apply for the same, an extension of time beyond the time specified for completion, SGC-13 proportionate to such unavoidable delay or delays, within which to complete the Contract, and Contractor will not be charged, because of any extension of time for such unavoidable delay, any engineering and inspection costs are charged in the case of extensions of time for avoidable delays.

6.9.2 For Avoidable Delay.

6.9.2.1 If the Work called for under this Contract is not finished and completed by Contractor, in all parts and in accordance with all requirements, within the time specified for completion elsewhere in these Contract Documents, including extensions of time granted because of unavoidable delay; or if at any time prior to the expiration of said time it should appear to Owner that Contractor will be unable to finish and complete said Work as aforesaid within said time; and if Contractor's failure or inability to finish and complete said Work as aforesaid within said time should be due, as determined by Owner, to avoidable delay or delays, then in that event Owner, if it finds such to be for the best interests of Owner, may, but will not be required to, grant to Contractor an extension or extensions of time within which to finish and complete all said Work.

6.9.2.2 In addition, if the time limit be so extended, Owner shall charge to Contractor, and may deduct from the final payment for the Work, all engineering and inspection expenses incurred by Owner in connection with the Work during the period of such extension or extensions, except that the cost of final surveys and preparation of final estimates will not be included in such charges. Such expenses of Owner shall be computed on the basis of the hourly schedule of charges set forth in these Supplemental Contract Terms and Conditions of the Contract.

6.9.3 Effect of Extension of Time. The granting of any extension of time on account of delays which in the judgment of Owner are avoidable delays shall in no way operate as a waiver on the part of Owner of its rights under this Contract or the terms included within any State or Federal permit for the Work.

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7.0 PAYMENTS TO CONTRACTOR

7.1 Progress Estimates and Payments

7.1.1 The date for each progress payment is the 25th day of each month.

The period of construction work covered by each payment request is the period ending 10 days prior to date for each progress payment and starting day following end of preceding period. Contractor shall, together with a representative of Engineer, make an estimate of the value of the Work performed in accordance with this Contract since the last preceding Application for Payment was made. Contractor shall then prepare and submit (in triplicate) the Application for Payment to Engineer on a periodic estimate for partial payment form.

Payment forms will be submitted in advance to Owner for determination of acceptability.

7.1.2 The Contractor will be paid as follows: sixty percent (60%) of the Mobilization and Demobilization cost as specified herein, less retainage, shall be payable upon arrival of sufficient plant to construct the Project and excavation for the first structure has begun.

Monthly Progress Payments shall be based on the percentage completion of the structure which are approved by the Engineer. The Owner shall retain ten percent (10%) of each monthly payment, including the initial Mobilization payment, to be paid along with forty percent (40%) of Mobilization and Demobilization cost subject to Demobilization, completion of all excavation, placement of composite, marine mattresses, armor and chinking stone, placement and washing in of backfill, and Final Acceptance of the completed Work.

7.2 Unit Price Items. The itemized quantities shall be considered by the Contractor as the quantities required to complete the Work for the purpose of bidding. Should actual quantities required in the construction of the Work be greater or less than the quantities shown on the items, an amount equal to the difference in quantities at the unit prices for the item will be added to or deducted from the Contract price via Change Order. When itemized quantities are not given in the Bid, the Work shown on the Plans or specified shall be considered by the Contractor to be included in their Contract for the lump sum prices Bid.

7.3 Payment for Extra Work and Work Deleted. Whenever corrections, additions, or modifications in the Work under this Contract change the

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amount of Work to be done, or the amount of compensation due Contractor except as provided for unit price items, Owner will prepare a Change Order setting forth the extra Work to be performed or Work to be omitted. Such a Change Order will also set forth the method of computing the added or reduced compensation to be due Contractor. The method of computing the added or reduced compensation will be determined under one or more of the following methods as selected by Owner.

7.3.1 By unit prices contained in Contractor's original Bid and incorporated in this Contract.

7.3.2 By negotiated unit prices for items not included in Contractor's original Bid; or

7.3.3 By negotiated lump sum price.

7.4 Surveys. The Contractor shall make accurate surveys and computations as are necessary to determine the quantities of Work performed or placed during each period for which progress payment is to be made. All original field notes, computations, and other records shall be recorded in duplicating field books, the original pages of which shall be furnished daily in ring binders to the representatives of the Engineer at the site of the Work and shall be used by the Engineer to the extent necessary in determining the proper amount of progress payments due the Contractor. Unless waived by the Engineer in each specific case, all surveys made by the Contractor shall be made in the presence and under the direction of a representative of the Engineer. The Contractor shall notify the Engineer in advance of each intent to perform surveys of any nature. Technical requirements for all surveys are described in the Exhibit G Technical Requirements.

7.4.1 The Contractor shall immediately provide the Engineer with any available survey information requested. Such data shall include, but not be limited to, daily check surveys performed by the Contractor in the prosecution of the work. Such data shall be faxed to the Engineer, upon request, in both tabular and graphic formats.

7.4.2 The Owner reserves the right to perform check surveys as necessary for verification of surveys made by the Contractor. The Owner may also make final surveys for purposes of Acceptance.

7.4.3 The Contractor shall prepare graphical depictions of the pre-construction and post-construction surveys superimposed on the required construction template, and allowable template tolerances for each primary baseline

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station. The Contractor shall use the same scale as shown in the Drawings for these depictions and all cross-shore distances shall be relative to the project baseline.

7.5 Owner's Right to Withhold Certain Amounts

7.5.1 Owner may withhold from payment to Contractor, in addition to the retained percentage, such an amount or amounts as may be necessary to cover:

7.5.1.1 Payments that may be earned or due for just claims for labor or material furnished in and about the Work. The Owner may withhold payment for more than the Work involved in the claim.

7.5.1.2 Defective Work not remedied.

7.5.1.3 Failure of Contractor to make proper payments to a Subcontractor.

7.5.1.4 Reasonable doubt that this Contract can be completed for the balance then unpaid.

7.5.1.5 Damage to another Contractor, where there is evidence thereof.

7.5.1.6 Excess cost of field engineering, inspection, and other expenses caused by Contractor. Said cost incurred by the Engineer shall be invoiced at rates prevailing at the time of construction.

7.5.1.7 Failure of Contractor to timely complete cleanup, property restoration, final shaping of the beach fill, and mitigation.

7.5.2 Owner also reserves the right, even after full completion and acceptance of the Work, to refuse payment of the final amount due Contractor until it is satisfied that all Subcontractors, material Suppliers, and employees of Contractor have been paid in full and Contractor has provided evidence of same as described in Section 7.9.2 of these Supplemental Contract Terms and Conditions.

7.6 Payment for Uncorrected Work. If any portion of the Work done or Material furnished under this Contract is found to be not in conformance with the Contract Documents and if the non-conforming Work is not of sufficient magnitude or importance to make the Work dangerous or wholly undesirable; or if the removal of such Work is impracticable or will create conditions which are dangerous or undesirable, Engineer shall have the right and authority to retain such Work instead of requiring it to be removed and reconstructed, but they shall recommend to Owner

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such deductions therefore in the payment due or to become due Contractor as may be just and reasonable, and Owner may make such deductions as are just and reasonable.

7.7 Payment for Work by Owner Following Termination of the Contract. Upon termination of the Contract by Owner no further payment shall be due Contractor until the Work is completed. If the unpaid balance of the Contract Amount shall exceed the cost of completing the Work, including all overhead costs, attorney's fees, engineering fees, the excess shall be paid to Contractor. If the cost of completing the Work shall exceed the unpaid balance, Contractor shall pay the difference to Owner. The cost incurred through Contractor's default shall be certified by Owner.

7.8 Acceptance. Any part of the Work may be accepted in writing by Owner when it shall have been completed in accordance with the terms of the Contract Documents as determined by Owner and its official representatives. When the Work is substantially completed, Contractor shall notify Owner, in writing, that the Work will be ready for final inspection and test on a definite date which shall be stated in such notice. The notice shall be given at least ten (10) days in advance of said date and shall be forwarded through Engineer. Owner shall cause an inspection to be made in order to determine whether the Work has been completed in accordance with the terms of the Contract Documents.

7.9 Final Estimate and Payment

7.9.1 Contractor shall, as soon as practicable after the Final Acceptance of the Work by Owner under this Contract, make a final estimate of the amount of Work done thereunder and the value thereof. Such final estimate shall be checked, approved, and signed by Engineer and by the official representative of Owner after approval of the governing body of Owner.

After such approval, Owner shall pay or cause to be paid to Contractor, in the manner provided by law, the entire sum so found to be due hereunder, after deducting therefrom all previous payments and such other amounts as the terms of this Contract prescribe.

7.9.2 Neither the final payment nor any part of the retained percentage shall become due until Contractor shall deliver to Owner a complete release of claims or liens arising out of this Contract, or receipts in full in lieu thereof and, if required in either case, an affidavit that to their knowledge or information, the release and receipts include all the labor and material for which a lien or claim could be filed, but Contractor may, if a Subcontractor refuses to furnish a release or receipt in full, furnish a Bond satisfactory to

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Owner to indemnify Owner against any claim or lien (in cases where such payment is not already guaranteed by surety bond). If any claim or lien remains unsatisfied after all payments are made, Contractor shall refund to Owner all moneys that the latter may be compelled to pay in discharging such a lien, including all costs and a reasonable attorney's fee.

7.10 Use of Completed Portion. The Owner shall have the right to take possession of and use any completed or partially completed portions of the Work, notwithstanding the time for completing the entire Work, or such portions which may not have expired, but such taking possession and use shall not be deemed an acceptance of any Work not completed in accordance with the Contract Documents.