Attachment G - Form of Agreement.Thomas Mitchell Stream Restoration.docx

AGREEMENT FOR CONSTRUCTION OF THE THOMAS MITCHELL STREAM RESTORATION PROJECT

This Agreement for Construction of the Thomas Mitchell Stream Restoration Project (“Agreement”) is entered into by and between Polk County, Iowa, a governmental entity and political subdivision of the State of Iowa, (“County”) and INSERT CONTRACTOR (“Contractor”). The County and Contractor may hereinafter be referred to individually as “Party” or collectively as the “Parties.”

WHEREAS, the County approved funding for the Thomas Mitchell Stream Restoration Project (“the Project”);

WHEREAS, the Project will INSERT PROJECT DETAILS (“the Construction”); and WHEREAS, on May 20, 2025, Polk County held a public hearing and approved the proposed plans, specifications, form of contract and estimated costs of the Construction pursuant to Iowa Code Chapter 26; and

WHEREAS, the County desires to accept the Contractor’s bid to complete the Construction for the Project; and

WHEREAS, the County and Contractor desire to enter into to this Agreement to memorialize the Terms and Obligations of the Parties; and

NOW THEREFORE, in consideration of the purpose set forth above, and the Parties’ mutual obligations contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties intending to be legally bound, do hereby by covenant and agree as follows:

I. TERMINOLOGY

A. For purposes of this Agreement, the following capitalized terms or information have the meanings set forth in this Section I:

B. General Definitions:

1. Agreement: shall mean this Agreement.

2. The Construction: shall mean the INSERT on property owned by INSERT at the location and pursuant to the Plans of Proposed Improvements for the Thomas Mitchell Stream Restoration documents attached hereto and incorporated herein by reference in Attachment B.

II. TERM

A. This Agreement shall commence and become effective upon the latter date of the two signatory dates below (“effective date”) and shall expire upon INSERT DATE (the Contractors completion of Contractor’s Obligation), unless terminated earlier in accordance with the provisions of section V. of this Agreement. The Parties hereto may, however, extend the term of this Agreement for an additional term as desired under mutually agreeable terms and conditions which the Parties reduce to writing and sign

III. PAYMENT

A. Payments to the Contractor will be processed through the Appia Project Management Software and will be processed monthly according to work completed as submitted by the Contractor and approved by the County.

B. Payment by the County shall not exceed the total bid of $INSERT submitted by Contractor in response to Invitation for Bid No. INSERT, attached hereto as Attachment C and incorporated herein, unless mutually agreed to in a separate, written amendment.

IV. TERMS & OBLIGATIONS

A. Contractor’s Obligations:

1. The Contractor shall INSERT.

2. The Contractor shall complete the Construction at the specific location and pursuant to the technical specifications contained in Attachment B. Those specifications include INSERT SPECS.

3. The Contractor shall provide all material, labor, and construction services as set forth in its responsive bid, attached hereto as Attachment D and incorporated herein.

4. The Contractor shall complete its obligations in a manner consistent with that level of care and skill ordinarily exercised by members of the Contractor’s profession currently practicing under similar conditions.

5. The Contractor shall designate a single point of contact who will keep the County appraised of progress and issues with the construction of the Thomas Mitchell Stream Restoration Project.

6. The Contractor shall submit monthly progress reports to the County documenting work completed and materials used, costs owed by the County, and unforeseen issues.

7. The Contractor shall apply for and obtain any necessary permit for the Constructions, whether the necessary permit is local, state, or federal in nature.

8. The Contractor shall provide a performance bond in the amount of $INSERT AMOUNT with a bonding company licensed to do business in the State of Iowa and shall comply with the obligations set forth in Iowa Code Chapter 573, as it exists now and may be amended from time to time.

9. The Contractor agrees that Polk County shall retain up to 5 percent of the Contractor’s monthly billings pursuant to Iowa Code section 573.12

B. County’s Obligations:

1. The County shall ensure reasonable access to the Project site.

2. The County agrees to provide all reasonably requested materials, exclusive of those to be provided by Contractor pursuant to Attachment D, in a reasonably prompt time.

3. In exchange for Contractor completing Contractor’s Obligations, the County agrees to compensate Contractor monthly with the submission of invoices, up to $INSERT.

4. The County shall designate a single point of contact for communication with the Contractor.

V. TERMINATION

A. Immediate:

1. The County may terminate this Agreement for any of the following reasons effective immediately without advance notice:

a) The Contractor furnished any statement, representation, warranty or certification in connection with the Agreement or the bidding process including Contractor’s Proposal, which is deemed, in the sole discretion of the County, to be materially false, deceptive, incorrect or incomplete.

b) The Contractor or any of Contractor’s officers, directors, employees, agents has committed or engaged in fraud, embezzlement, misappropriation, malfeasance, misfeasance or bad faith;

c) Contractor terminates or suspends its business;

d) Contractor’s corporate existence or good standing in the State of Iowa is suspended, terminated, revoked or forfeited.;

e) Contractor has failed to comply with any applicable international, federal, state or local laws, rules, ordinances, regulations or orders when performing Contractor’s Obligations within the scope of this Agreement;

f) The Contractor infringes or allegedly infringes or violates any patent, trademark, copyright, trade dress or any other intellectual property right or proprietary right, or misappropriates or allegedly misappropriates a trade secret;

g) If governmental funds are de-appropriated, reduced, not allocated, or receipt of funds is delayed, or if any funds or revenues needed by the County to make any payment are unavailable;

h) If the County’s authorization to conduct its business or engage in the activities or obligations related to this Agreement is withdrawn, materially altered or modified;

B. For Convenience:

1. The County may terminate this Agreement for convenience, in whole or in part without penalty and without incurring any further obligation to Contractor upon providing advanced thirty (30) day written notice to Contractor.

C. For Cause:

1. The County may terminate this Agreement for cause upon written notice for the breach by the Contractor of any material Term, covenant, Obligation or provision of this Agreement, if such breach is not cured within the time period specified in the County’s notice of breach provided by the County to the Contractor, provided cure is feasible.

VI. REPRESENTATIONS & WARRANTIES

Contractor warrants that it will complete its obligations in a manner consistent with that level of care and skill ordinarily exercised by members of the Contractor’s profession currently practicing under similar conditions. Contractor further warrants that all goods procured pursuant to this Agreement are free from all liens, claims, or encumbrances.

VII. LIMITATION OF LIABILITY

A. Under no circumstances, except as otherwise stated in this Agreement, will the County, its elected or appointed officials, employees, agents, their predecessors, successors and assigns be liable to Contractor for any loss or damages of any kind (Including, without limitation, for any direct, indirect, economic, exemplary, special, punitive, incidental or consequential losses or damages) that are directly or indirectly related to: (1) Contractors Obligations in accordance with the provisions of section IV of this Agreement; (2) Any claims or civil actions for violations of copyright, trademark or intellectual property rights of another arising out of Contractor’s use of another parties owned copyrighted, trademarked or intellectual property.

VIII. INDEMNIFICATION

A. Contractor shall indemnify, defend and hold harmless Polk County, Iowa, its elected and appointed officials, employees, agents, their predecessors, successors and assigns from and against any and all claims, disputes, demands, damages, actions, judgments, liability, loss, cost and expense, including without limitation reasonable legal and accounting fees, arising out of or in connection with Contractors’ acts, errors, omissions, negligence in the performance of the terms, obligations or duties of this Agreement or required by law. This provision shall survive the expiration or termination of the Agreement.

IX. INSURANCE

The Contractor shall procure and maintain throughout the Term and duration of this Agreement; insurance of such types and the minimum coverage amounts and other requirements as specified in Attachment A to this Agreement.

X. MISCELLANEOUS

A. Entire Agreement This Agreement and the Exhibits attached constitute the entire understanding and agreement between the Parties relating to the subject matter hereof and shall supersede (stands in place of) all prior or contemporaneous discussion(s), agreement(s), and representation(s) whether written or oral. It is understood and agreed that this Agreement incorporates and includes any and all prior negotiations, correspondence, conversations, agreements, or understandings applicable to the matters contained herein and the Parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained in this document. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representation or agreements whether oral or written.

B. Headings/Cations The section headings and subheadings contained in this Agreement are included for reference and convenience only and shall not enter into the interpretation of the Parties obligations under this Agreement, limit or otherwise affect the terms of this Agreement.

C. Amendments The terms and provisions of this Agreement may only be amended by the prior express written mutual consent of the Parties.

D. Counterparts / Execution This Agreement or written Amendments may be executed in multiple counterparts, each of which when so executed shall be deemed an original, but all of which, when taken together, shall constitute but one and the same Agreement/instrument. Any counterpart delivered by commercially available electronic means, including e-mail, electronic e-signature software or other electronic means shall have the same import and effect as original or manually signed (i.e., “wet-ink”) counterparts and shall be valid, enforceable and binding for the purposes of this Agreement/Amendment.

E. Non-Assignment The Contractor shall not assign its obligations or duties under the terms of this Agreement without the prior express written consent of the County.

F. Independent Contractor Contractor is an independent Contractor who has exclusive control of itself, its employees, sub-Contractors and the manner in which the duties and services specified in this Agreement are performed.

G. Severability In the event any portion or provisions of this Agreement or the application of any such provision to any Party or circumstances is determined to be invalid, illegal or unenforceable under applicable law: (i) this determination shall in no way affect the validity or enforcement of the remaining portions or provisions of this Agreement; and (ii) the Parties shall negotiate in good faith to replace the unenforceable or invalid provision(s) by such as has the effect nearest to that of the provision being replaced. The remaining portions or provisions shall remain in full force and effect.

H. Waiver The failure to exercise any right under this Agreement shall not be deemed to be a waiver of such right, and shall not affect the right to enforce each and every right hereof. The waiver of any breach of any term, provision, covenant or conditions of this Agreement, by any party hereto of its rights with respect to any matter arising in connection with this Agreement shall not be construed as a general waiver or a waiver of any other term or condition.

I. Force Majeure In the event of Acts of God, war, natural calamities, strikes, lockouts, or other labor stoppages or disturbances, civil disruptions, riots, epidemics, pandemics, acts of government or any competent authority having jurisdiction, or other legitimate cause beyond the reasonable control of a Party, and which such Party could not have prevented through the exercise of reasonable due diligence, but expressly excluding a Party’s lack of sufficient funds to perform.

J. Notice

1. County:

Polk County, Iowa ATTENTION: John R. Norris 111 Court Avenue, Ste. 300 Des Moines, IA 50309

2. Contractor:

INSERT

K. Governing Law This Agreement shall be a binding agreement and any controversy, dispute or claim between the Parties arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Iowa.

L. Governing Venue Any and all litigation commenced in connection with this Agreement shall be brought and maintained solely in The Iowa District Court For Polk County. This provision shall not be construed as waiving any immunities available to the County.

IN WITNESS WHEROF, THIS AGREEMENT IS EXECUTED BY THE PARTIES

DATE: ______________________ DATE: ___________________________