DRAFT_Example_Construction_Contract_Template.pdf

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CONSTRUCTION CONTRACT

This Construction Contract (“Contract”) is made this day of , 20 , by and between the City of Royal Oak, a Michigan Municipal Corporation, with its principal office at 203 S. Troy Street, Royal Oak, MI 48067 (the “City”), and

________________________________________, a

_____________________________________________ [entity type] with its principal office at

_____________________________________________ (the “Contractor”). The City and Contractor may be referred to collectively as the “Parties” and individually as a “Party.”

WITNESSETH, the Parties agree as follows:

1. Scope of Work and Contract Documents. The Contractor agrees, for the consideration stated in Article 5, to perform all labor, furnish all materials, tools, equipment, transportation, and supervision, and to complete all work described in and in conformity with the following, which are incorporated into this Contract by reference as if fully set forth herein:

- Exhibit A: The City’s Request for Proposals dated .

- Exhibit B: The Contractor’s proposal/response dated .

- All applicable plans, drawings, specifications, and addenda issued by the City.

The short title and description of this project shall be referred to as:

Project Title: .

Contract Number: .

2. Completion. That the Contractor agrees that they will prosecute the work under this Contract so as to bring it to full completion by , and they further agrees that the City is hereby authorized to deduct and retain out of monies that may be due or become due them under this Contract the sum of for each and every working day that the work remains uncompleted beyond the time limit named above, as amended by such extension of time as may be as allowed under this Contract, and that, in view of the difficulty of ascertaining the loss which the City will suffer by reason of delay in the performance of the work hereunder, the deduction and retention of such sum is to be considered not a penalty but the payment of liquidated damages stipulated beforehand by the parties hereto as representing the cost of additional inspection and engineering and the loss to the City of the use of the said construction of facilities.

3. Delay. That the parties hereto mutually agree that if the Contractor shall be obstructed or delayed in the prosecution of completion of their work by disastrous storms, or by acts of Providence, or by general strikes, or by Court Injunction, or by any neglect or delay on the part of the City, the Contractor shall have no claim for damages for such causes or delay, but they shall in such case be entitled to such extension of time limit specified herein for the completion of the work as the Engineer shall adjudge to be just and reasonable provided, however, that formal claim for such extension be made in writing by the Contractor within a week after the time when such alleged cause of delay shall have occurred.

4. Plans. The location, depth and dimensions, structural details, and construction requirements of the work to be done are shown in a set of drawings adopted by the City and on file at the office of the City Engineer entitled:

When the figures or dimensions are given on the drawings, they are to have precedence over dimensions taken by scaling. During the progress of the work, the City may furnish drawings explanatory of those mentioned herein, which shall thereupon become a part hereof.

The City shall have the right to make reasonable modifications of Plans, if it is to its best interest to do so, and the Contractor shall be paid for the work as it is actually done.

The Contractor shall furnish, wherever required, drawings showing in detail the materials and construction of any part of the work for which the Engineer does not issue detail drawings. No time will be allowed for delays caused by the Contractor in submitting drawings that are not in accordance with the Specifications. The Contractor shall check all dimensions and quantities on the drawings and they shall notify the Engineer of all errors, which they may discover.

5. Specifications. A set of technical specifications explaining in detail how the work under this Contract is to be done and describing the character and quality of the various materials employed therein is attached to this Contract and is made expressly a part of it.

6. Plans and Specifications Cooperative. The Plans and Specifications are intended to be cooperative. They shall be construed as supplementary and explanatory each to the other, and any work called for on the Plans and not particularly shown on the Plans is to be as included under this Contract the same as is set forth in the Specifications and exhibited on the Plans.

7. The Engineer to Decide. In case of any conflict between the Specifications and the Plans, or in case the meaning of either or both should be obscure or uncertain or in dispute, the Engineer shall decide as to the true intent, and their decisions shall be binding and final.

8. Supervision of Work. All work shall be done under the supervision of and subject to the approval of the Engineer who shall have authority to make all inspections and direct it and determine the amount, quality, acceptability, and fitness of any labor, material, or construction which in their opinion does not fully meet the requirements of the Specifications.

9. Suitable Tools and Equipment. It is mutually understood that the workmanship furnished under this Contract shall be first class. To the end that a good substantial and workpersonlike job may be produced, the Contractor shall furnish suitable tools and equipment. Any tools or equipment that shall not, in the judgment of the Engineer, be suitable or sufficient to produce this result may be ordered from the work by them and such tools or equipment shall be substituted therefore by the Contractor as will meet with the approval of the Engineer.

10. Requirements for Materials. It is mutually understood that all materials furnished by the Contractor to be used in this work shall be of first quality in every respect and material so furnished which may not, in the judgment of the Engineer, be equal to the requirements of the Specifications may be rejected by the Engineer, and such rejected materials must not be used and must immediately be removed by the Contractor from the site of the work.

The presence of the inspector or Engineer on the project shall in no way relieve the Contractor of their obligations to both provide materials and perform the work in full conformity to the Specifications. Work found to be unsatisfactory prior to the expiration date of the maintenance clause of the Performance Bond shall be replaced at no cost to the City regardless of whether or not the inspector or Engineer was present at the time the work was originally performed.

11. Trade Names and Patents. Whenever an article of any class or materials or equipment is specified by the trade name of any particular patentee, manufacturer, or dealer, or by reference to the catalog of any such manufacturer or dealer, it shall be taken to mean and specify the article or articles or materials described or equal thereto in quality, finish, and durability and equally serviceable for the purpose for which it is or they are intended. The Engineer shall make the decision as to whether the materials or equipment offered are equal to those specified and their decision shall be final.

12. Patent and Patent Rights. The Contractor shall protect and save the City harmless against all claims and actions brought against the City by reason of any actual infringement upon patent rights in any material, process, machine, or appliances used by them in the work.

13. Right-of-Way. The necessary rights-of-way for any construction to be done across or in private property will be obtained by the City. The Contractor shall take due and proper precautions against any injury to adjacent structures and shall hold themselves strictly within the rights secured to them by the City in prosecuting the work on private property.

14. Sanitary Regulations. The Contractor at all times shall provide for the employees an abundant supply of pure drinking water and shall give orders against the use for drinking purpose of any water in the neighborhood known to be injurious to the health of the workers.

The Contractor shall provide at convenient points approved by the Engineer, properly secluded from public observations, necessary sanitary conveniences for the use of the employees. These shall be maintained in a manner which will meet with the approval of the Engineer, and the Contractor shall vigorously enforce their use.

15. Labor Laws and Ordinances. The Contractor shall obey and abide by all the laws of the State of Michigan relating to the employment of labor and public work and all ordinances and requirements of the City regulating or applying to public improvements.

The Contractor agrees not to discriminate against any employee or applicant for employment, to be employed in the performance of the Contract, with respect to hire, tenure, terms, conditions, or privileges of employment, of any matter directly or indirectly related to employment, because of age or sex, except where based on a bona fide occupational qualification, or race, color, religion, national origin, or ancestry. The Contractor further agrees that every subcontract entered into for the performance of the Contract will contain a provision requiring non-discrimination in employment, as herein specified, binding upon each subcontractor. Breach of this covenant may be regarded as a material breach of the Contract.

16. Local Sources for Labor and Materials. All labor employed upon the work of this Contract shall be obtained from residents of the City insofar as this is available. All supplies, equipment, and materials shall be obtained from sources and dealers in the City insofar as is practicable.

17. Delivery, Title and Risk of Loss. Contractor must pay all costs associated with packaging, freight, and shipping, and must ship all deliverables F.O.B. destination, inside delivery, unless otherwise specified in the Contract. Title and risk of loss or damage to deliverables remains with Contractor until the deliverables have been received, inspected and accepted by the Slate in accordance with these terms. All containers and packaging becomes the City's exclusive property upon final acceptance. Contractor shall ensure that all deliverables and services ("Deliverables) are provided to the City by the date and time specified on the Request for Proposal or Contract.

If Contractor fails to provide the Deliverables in accordance with the Contract, the Stale may reject the delivery and terminate the Contract without any termination charges or penalties, and Contractor must pay all associated costs, including, but not limited to, expedited routing costs, return shipping charges, the procurement of the Deliverables from another source, and any storage removal, or disposal expenses. The risk of loss of rejected or non-conforming Deliverables remains with Contractor. Rejected Deliverables not removed by Contractor within 10 calendar days will be deemed abandoned by Contractor, and the City will have the right to dispose of such Deliverables as its own property. Contractor is responsible for filing, processing, and collecting all damage claims.

18. Warranties and Representations. Contractor represents and warrants: (a) all Deliverables furnished under the Contract will conform to all specifications and industry standards, and will be free from defects, including, where applicable and without limitation, defects in material, workmanship, and title: (b) Contractor is the owner or licensee of all Deliverables it licenses, sells, or develops and Contractor has the rights necessary to convey title, ownership rights, or licensed use; (c) all Deliverables are provided free from any security interest, lien, or encumbrance and will continue in that respect: (d) the Deliverables will not infringe the patent, trademark, copyright, trade secret, or other proprietary rights of any third party; (e) Contractor must assign or otherwise transfer to the City or its designee any manufacturer's warranty for the Deliverables; (f) Contractor will not negate, exclude, limit, or modify in any warranty otherwise available to the City in any way; (g) the Deliverables are merchantable and fit for the City's intended use ; (h) the Deliverables furnished will conform in all respects to samples, advertisements, and other forms of representation made to the City; (i) the Contract signatory has the authority to enter into the Contract; and 0) all information furnished and representations made in connection with the Contract is true, accurate, and complete, and contains no false statements or omits any fact that would make the information misleading. Contractor agrees to promptly replace or correct any Deliverables not conforming to the foregoing warranty, without expense to the City, when notified of such non-conformity by the City. A breach of this Section is a material breach of the Contract.

19. Inspection. The City may inspect the work and activities of Contractor, and its subcontractors, at all reasonable times and places before, during and after delivery of the Deliverables. All Deliverables are subject to final inspection and acceptance by the City notwithstanding any prior payments or inspections. Final inspection will take place within 30 calendar days of the later of the delivery date, installation, or completion of services. If any Deliverables are non-conforming or defective, the City is entitled to, at its option and at Contractor's expense: (a) a refund; (b) a credit; or (c) correction or replacement. If Contractor fails to correct defects or replace non-conforming Deliverables within 10 calendar days, the City may, in addition to its other remedies: (i) reject such Deliverables; (ii) accept such Deliverables at a discount; or (iii) make such corrections or replace such Deliverables and charge Contractor any resulting costs incurred by the City plus an additional 10% administrative fee.

20. Assignment or Subletting of Contract. In the execution of the Contract it may be necessary for the Contractor to sublet part of the work to others; however, the Contractor shall not award any work to any subcontractor without prior written approval of the City, which approval shall not be given until the Contractor submits to the City a written statement concerning the proposed award to the subcontractor, which statement shall contain such information as the City may require.

The Contractor shall be fully responsible to the City for the acts and omissions of their subcontractors and of persons either directly or indirectly employed by them, as they are for the acts and omissions of persons directly employed by them. Nothing contained in this Contract shall create any contractual relation between any subcontractor and the City.

The Contractor shall not assign, transfer, convey, or otherwise dispose of this Contract, of any part thereof, or their right, title, or interest in the same or any part thereof, without the previous consent in writing of the City. The Contractor shall not assign by power-of-attorney or otherwise any of the monies due or to become due and payable under this Contract without the previous consent in writing of the City.

21. Contractor Insurance Requirements. The Contractor, and any and all of their subcontractors, shall not commence work under this contract until they have obtained the insurance required under this paragraph, and shall keep such insurance in force during the entire life of this contract. All coverage shall be with insurance companies licensed and admitted to do business in the State of Michigan and acceptable to City of Royal Oak, Michigan. The requirements below should not be interpreted to limit the liability of the Contractor. All deductibles and SIRs are the responsibility of the Contractor.

The Contractor shall procure and maintain the following insurance coverage:

a. Commercial General Liability (CGL). Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $5,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this Contract or the general aggregate limit shall be twice the required occurrence limit.

b. Umbrella or Excess Liability Policy in an amount not less than $3,000,000.

Umbrella or Excess policy wording shall be at least as broad as the primary or underlying policy(ies) and shall apply both to the Contractor's general liability and to its automobile liability insurance and shall be written on an occurrence basis. The City, officials, employees may be specified in any "Special Conditions” shall be named as an additional insured under this policy.

c. Automobile Liability. Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Contractor has no owned autos, Code 8 (hired) and 9 (non-owned), with limits no less than $1,000,000 per accident for bodily injury and property damage.

d. Workers' Compensation Insurance. Workers’ Compensation Insurance as required by the State of Michigan, with Statutory Limits, and Employer's Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease.

e. Professional Liability (if Design/Build) Insurance. Professional Liability (if Design/Build) Insurance appropriate to the Contractor's profession, with limits no less than $3,000,000 per occurrence or claim, $3,000,000 aggregate.

f. Builder's Risk (Course of Construction) insurance. Builder’s Risk Insurance utilizing "All Risk" (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions.

g. Contractors' Pollution Legal Liability and/or Asbestos Legal liability and/or Errors and Omissions (if project involves environmental hazards) with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate.

h. Additional Insured. Commercial General Liability Insurance shall include an endorsement stating the following shall be Additional Insureds: The City of Royal Oak, all elected and appointed officials, all employees and volunteers, agents, all boards, commissions, and/or authorities and board members, including employees and volunteers thereof. It is understood and agreed by naming the City of Royal Oak as additional insured, coverage afforded is considered to be primary and any other insurance the City of Royal Oak may have in effect shall be considered secondary and/or excess.

i. Primary Coverage. For any claims related to this Agreement, the Contractor's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Contractor's insurance and shall not contribute with it.

j. Waiver of Subrogation. Contractor grants to the City a waiver of any right to subrogation which any Insurer of the Contractor may acquire against the City by virtue of the payment of any loss under such Insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.

k. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require the Contractor to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.

l. Cancellation Notice. Policy(ies), as described above, shall be endorsed to state the following: It is understood and agreed Thirty (30) days, Ten (10) days for non-payment of premium, Advance Written Notice of Cancellation or Non-Renewal shall be sent to the Certificate Holder: City Engineer, City Hall, 203 South Troy Street, P.O. Box 64, Royal Oak, Michigan 48068-0064

m. Proof of Insurance Coverage: The Contractor shall provide the City of Royal Oak at the time the contracts are returned by them for execution a Certificate of Insurance as well as the required endorsements. In lieu of required endorsements, a copy of the policy sections, where coverage is provided for additional insured and cancellation notice, may be acceptable. Copies of all policies mentioned above shall be furnished, if so requested.

n. If any of the above coverages expire during the term of this contract, the Contractor shall deliver renewal certificates, endorsements, and/or policies to City of Royal Oak at least ten (10) days prior to the expiration date.

22. Insufficiency of Sureties. Should the City at any time deem the Sureties under the Contract to be unsatisfactory, and they so notify the Contractor, the Contractor shall furnish forthwith the substitution new Sureties acceptable to the City. No further payment shall be deemed due or shall be made until the new Sureties shall qualify and be accepted by the City.

23. Service of Notice. The address given by the Contractor in the Proposal is hereby designated as the place where all notices including letters and other communications shall be served, mailed, or delivered. This place may be changed at any time by the Contractor by written notice to the Engineer. Nothing herein contained shall preclude or render inoperative service of any notice upon the Contractor by delivering it to them personally or by serving notice to the agents or representatives in charge of any part of the work. In addition, where the Contractor is a corporation, such notice may be delivered to any of its officers or directors.

24. Default of Contract. The City may declare a default of the contract if the either of the following occur:

a. When, in the opinion of the Engineer, the work or any part of the work to be done under this Contract has been abandoned, is unnecessarily delayed, or cannot be completed at the rate of progress or within the time specified, or the Contractor is willfully violating any of the covenants of this Contract or is carrying it out in bad faith, or has been adjudged as bankrupt, or if they should make a general assignment for the benefit of their creditors, then the Engineer shall so certify in writing to the City and the City, in writing, may declare the Contractor in default and so notify them to discontinue the work. The City may then call upon the Sureties to complete the work or may complete it by other means. The City may take over and use materials and equipment at the site of the work and other materials and equipment used elsewhere for the work at the time of default and may procure other materials, equipment, and all else necessary for the completion of the work. The City may recover the cost of completing the work by deducting the amount thereof from any monies due or which may become due the Contractor under this Contract, and when such monies are insufficient to pay said cost, the amount of said cost in excess of such monies shall be paid by the Contractor or by the Surety.

b. For contracts greater than Two Hundred and Fifty Thousand ($250,000.00) Dollars and subject to the City’s Responsible Contractor Ordinance (Ord. No. 2022-07 and Administrative Rules): Where the Contractor has violated the Responsible Contractor Ordinance and has failed to fix the violation within 10 calendar days after receiving notice of the violation from the City. A default under this subsection may result in termination of the contract, along with any of the remedies provided by the Responsible Contractor Ordinance and by law.

25. Progress Payments and Estimates. At the end of each month or at such other time intervals as may be mutually agreeable, the Engineer will make an estimate of the quantity and value of the work done by the Contractor since the date of the previous estimate and, as soon as practicable thereafter, the City will pay the Contractor, as a partial payment, except that the City may at any time retain from such partial payments a sum sufficient to meet any undischarged indebtedness of the Contractor in connection with the work performed.

To assure proper performance of a construction contract by the contractor, the City shall retain a portion of each progress payment otherwise due as provided in this section.

a. The retainage shall be limited to the following:

i. Not more than 10% of the dollar value of all work in place until work is 50% in place.

ii. After the work is 50% in place, additional retainage shall not be withheld unless the city determines that the contractor is not making satisfactory progress, or for other specific cause relating to the contractor's performance under the contract. If the city so determines, the city may retain not more than 10% of the dollar value of work more than 50% in place.

b. The retained funds shall not exceed the pro rata share of the City's matching requirement under the construction contract, if any, and shall not be commingled with other funds of the City and shall be deposited in an interest bearing account in a regulated financial institution in this state wherein all such retained funds are kept by City which shall account for both retainage and interest on each construction contract separately. A City is not required to deposit retained funds in an interest bearing account if the retained funds are to be provided under a state or federal grant and the retained funds have not been paid to the City.

c. Except as provided below, retainage and interest earned on retainage shall be released to a contractor together with the final progress payment.

d. At any time after 94% of work under the contract is in place and at the request of the original contractor, the City shall release the retainage plus interest to the original contractor only if the original contractor provides to the city an irrevocable letter of credit in the amount of the retainage plus interest, issued by a bank authorized to do business in this state, containing terms mutually acceptable to the contractor and the City.

26. Additional work. It is mutually agreed to by the parties hereto that any extra work not specifically mentioned in the Contract but which is obviously necessary to the complete performance of the Contract and which may be fairly implied as included will be considered so included and will be performed by the Contractor without extra charge therefore.

It is further agreed that if the Contractor shall do any extra work for which no price has been agreed upon beforehand, the price to be paid shall be actual cost to the Contractor of the labor and materials expended in such work plus fifteen percent (15%) of such cost for superintendence, overhead expense, insurance, and for the use of tools and plant. No claim for extra work will be allowed unless such work has been previously ordered in writing by the Engineer and unless such claim has been presented for payment as soon as practicable after such work was done and before making up of the final estimate.

27. Final Estimate and Payment. As soon as practicable after completion of all the work included in this Contract and after all known defects and deficiencies have been remedied, the Engineer will make a final inspection of said work and prepare a final estimate of the amount of money due to the Contractor. The Contractor shall file with the Engineer, as a condition precedent to final payment, an affidavit that all payrolls, material bills, and all other indebtedness incurred by them in connection with the work have been paid or an affidavit showing in detail the nature and amount of any such indebtedness that is unpaid. The City shall hold from final payment an amount of money sufficient to meet any such undischarged indebtedness of the Contractor until an affidavit that any such indebtedness is paid is filed with the Engineer.

28. Termination for Cause. The City may terminate the Contract, in whole or in part, at any time for cause in the event Contractor fails to comply with any of these terms, including, without limitation, late delivery or performance, the delivery of defective or non-conforming Deliverables, or failure to provide the City with reasonable assurances of future performance. In the event of termination for cause, the City will not be liable to Contractor for any amount, and Contractor will be liable to the City for any and all damages, including but not limited to, administrative fees, court costs, attorney fees, and cover costs. Any ineffectual termination for cause is hereby deemed a termination for convenience, effective as of the same date and limited to those rights.

29. Termination for Convenience. The City may immediately terminate the Contract, in whole or in part, without penalty and for any reason, including but not limited to, appropriation or budget shortfalls. Upon termination for convenience, the City will only pay for those Deliverables and work then in progress or completed.

30. Indemnification. Contractor must defend, indemnify and hold the City, all of its instrumentalities, and employees harmless, without limitation, from and against any and all actions, claims, losses, liabilities, damages, costs, attorney fees, and expenses (including those required to establish the right to indemnification) arising out of or relating to: (a) any breach by Contractor (or any of Contractor's employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable) of any of the promises, agreements, representations, warranties, or other requirements contained in the Contract; (b) any infringement, misappropriation, or other violation of any intellectual property right or other right of any third party;

(c) any bodily injury, death, or damage to real or tangible personal property occurring wholly or in part due to action or inaction by Contractor (or any of Contractor's employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable); and (d) any negligent acts or omissions of Contractor (or any of Contractor's employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable). Due to constitutional prohibitions, the City will not indemnify Contractor, or its employees or affiliates, for any reason whatsoever.

31. Confidentiality. Contractor agrees that any information, including City Data, disclosed by the City in relation to the Contract will be used only in the performance thereof. Contractor will keep the information confidential, will not disclose it to any third party, except as authorized by the City, and will only disclose it to those within its organization who need it for performance of the Contract.

Upon completion or termination of the Contract, Contractor will return all such information to the City, or make such other disposition thereof as directed or approved by the City. No item furnished under the Contract, or tools, plans, designs, or specifications for producing the same, which have been specifically designed for or by the City, will be duplicated or used by Contractor. Nothing in this provision will restrict Contractor's right to use or disclose any information which is or becomes known to the public without breach of this provision by Contractor, or is rightfully obtained without restriction from other sources.

32. Proprietary Rights. All materials, tools, plans, designs, specifications, equipment, and other property either furnished by the City to Contractor or paid for by the City, will remain the property of the City, but the Contractor assumes the risks of, and will be responsible for, any loss or damage, until returned in good order to the City. Such property must be safely stored and properly maintained by Contractor. Upon completion of this Contract, Contractor will return such property to the City or to any other entity as the City may direct, in the condition in which it was received, manufactured or procured by Contractor, except for reasonable wear and tear and except if such property has been incorporated into the Deliverables.

33. City Data. All data and information provided to Contractor by or on behalf of the City, and all data and information derived therefrom, is the exclusive property of the City ("City Data") and may only be used as specifically required by the Contract; this definition is to be construed as broadly as possible. Upon request, Contractor must provide to the City, or its third party designee, all City Data within 10 calendar days of the request and in the format requested by the City. Contractor will assume all costs incurred in compiling and supplying City Data. No City Data may be used for any marketing purposes.

34. Intellectual Property. Unless otherwise stated in the Contract, Contractor: (a) agrees that any computer program, software, documentation, copyrightable work, discoveries, inventions or improvements developed by Contractor resulting from supplying the Deliverables are the property of the City: and (b) hereby assigns all rights therein to the City. Contractor further agrees to provide the City with any assistance which the City may require to obtain patents or copyright registrations.

35. Limitation of Liability. The City is not liable for consequential, incidental, indirect, or special damages, regardless of the nature of the action. Under no circumstances will the City be liable for any amounts, in whatever form, in excess of the total aggregate value set forth in the Contract.

36. Records Maintenance, Inspection, Examination, and Audit. The City or its designee may audit Contractor to verify compliance with the Contract. Contractor must retain, and provide to the City or its designee and the auditor general upon request, all financial and accounting records related to the Contract through the term of the Contract and for 4 years after the latter of termination, expiration, or final payment under the Contract or any extension.

37. Notices. All notices and other communications required or permitted under the Contract must be in writing and will be considered given and received: (a) when verified by written receipt if sent by courier; (b) when actually received if sent by mail without verification of receipt; or (c) when verified by automated receipt or electronic logs if sent by facsimile or email.

38. Modifications. The Contract may not be amended except by signed agreement between the parties.

39. Independent Contractor. Contractor is an independent contractor and assumes all rights, obligations and liabilities set forth in the Contract. Contractor, its employees, and agents are not considered employees of the City.

40. Nondiscrimination. Under the Elliott-Larsen Civil Rights Act, 1976 PA 453, MCL 37.2101, et seq., and the Persons with Disabilities Civil Rights Act, 1976 PA 220, MCL 37.1101, et seq., Contractor and its subcontractors agree not to discriminate against an employee or applicant for employment with respect to hire, tenure, terms, conditions, or privileges of employment, or a matter directly or indirectly related to employment, because of race, color, religion, national origin, age, sex, height, weight, marital status, or mental or physical disability. Breach of this covenant is a material breach of the Contract.

41. Unfair Labor Practice. The City may void any Contract with a Contractor, Contractor, or subcontractor who appears on the Unfair Labor Practice register of employers who have been found in contempt of court by a federal court of appeals, on not less than 3 occasions involving different violations during the preceding 7 years, for failure to correct an unfair labor practice, as prohibited by section 8 of chapter 372 of the national labor relations act, 29 U.S.C. 158, which is compiled under

MCL 423.322.

42. Governing Law. The Contract is governed, construed, and enforced in accordance with Michigan law, excluding choice-of-law principles, and all claims relating to or arising out of the Contract are governed by Michigan law, excluding choice-of-law principles. Any dispute arising from the PO must be resolved in Oakland City, State of Michigan. Contractor hereby waives any objections, such as lack of personal jurisdiction or forum non conveniens. Contractor must appoint agents in Michigan to receive service of process.

43. Non-Exclusivity. Nothing contained in the Contract is intended nor will be construed as creating any requirements contract with Contractor. The Contract does not restrict the City or its agencies from acquiring similar, equal, or like Deliverables from other sources.

44. Force Majeure. Neither party will be in breach of the Contract because of any failure arising from any disaster or acts of god that are beyond their control and without their fault or negligence.

Each party will use commercially reasonable efforts to resume performance. Contractor will not be relieved of a breach or delay caused by its subcontractors. If immediate performance is necessary to ensure public health and safety, the City may immediately contract with a third party.

45. Media Releases. News releases (including promotional literature and commercial advertisements) pertaining to the Contract or project to which it relates must not be made without prior written City approval, and then only in accordance with the explicit written instructions of the City. Contractor will provide the City, for its review, copies of all presentations or articles being submitted for publication at least 30 calendar days in advance.

46. Website Incorporation. The City is not bound by any content on Contractor's website unless expressly incorporated directly into the Contract.

47. Severability. If any part of the Contract, or these terms, is held invalid or unenforceable, by any court of competent jurisdiction, that part will be deemed deleted and the severed part will be replaced by agreed upon language that achieves the same or similar objectives. The remaining Contract terms will continue in full force and effect.

48. Waiver. Failure to enforce any provision of the Contract, or these terms, for any period of time will not constitute a waiver.

49. Survival. The provisions of these terms that impose continuing obligations, including warranties and representations, termination, indemnification, intellectual property, and confidentiality, will survive the expiration or termination of the Contract.

50. Entire Contract. The Purchase Order and these terms constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. Terms that are contrary to this Contract contained on any invoice, quote, purchase order, website, browse-wrap, shrink-wrap, click-wrap or other non negotiated terms and conditions provided with any of the Deliverables (including software and hardware) or documentation, whether by Contractor, Contractor, subcontractor, or any third-party, will constitute a part or amendment of the Contract or is binding on the City or any authorized user for any purpose. The terms in this Contract shall supersede any contrary terms that are contained on any invoice, quote, purchase order, website, browse-wrap, shrink-wrap, click-wrap or other non negotiated terms and conditions provided with any of the Deliverables (including software and hardware) or documentation, whether by Contractor, Contractor, subcontractor, or any third-party.

IN WITNESS WHEREOF, the parties hereto have set their hands and seals in triplicate this day of , 20 .