GENERAL_CONDITIONS.pdf

PART 6 – GENERAL CONDITIONS

CITY OF CHEYENNE, WYOMING

1.00 PROJECT SITE

See project specifications for Site Location.

2.00 NOTICES

Any notice, correspondence, or billing required by the terms of this Agreement shall be delivered by hand or mail, prepaid, to the address of the respective party representative(s) named below:

CITY: City of Cheyenne

Purchasing Office

2101 O’Neil Ave., Room 309

Cheyenne, WY 82001

Ph: 307-773-1045

3.00 DRUG-FREE WORKPLACE

In compliance with the Drug Free Work Place Act of November 1988, the City has established an “Alcohol and Controlled Substance Policy” that pertains to alcohol and drug usage by City employees. All independent contractors under contract with the City and their employees and subcontractors are required to comply with the provisions of this policy for drug and/or alcohol usage on City property or other sites occupied by the

Contractor while performing the duties and responsibilities of the contract. It is the responsibility of the Contractor to become familiar with the requirements of this policy and to inform all subcontractors and employees of their obligation to comply and to ensure their compliance therewith. If the Contractor, the Contractor’s employees, or subcontractors are found in violation of this policy, the contract may be terminated. The Contractor is an independent Contractor and shall comply with the City’s Alcohol and Controlled Substance

Policy and the provisions of this section.

4.00 NONDISCRIMINATION

The parties shall comply with the Civil Rights Act of 1964, the Wyoming Fair Employment

Practices Act (Wyo. Stat. § 27-9-105 et seq.), the Americans With Disabilities Act (ADA

(42 U.S.C. § 12101 et seq.)), the Age Discrimination Act of 1975, and any properly promulgated rules and regulations thereto and all parties to this Agreement assure that no person shall be excluded from participation in, denied the benefits of, or otherwise discriminated against in connection with the award and performance of this Agreement on the grounds of age, sex, race, creed, color, national origin, ancestry, religion, pregnancy, qualifying disability, sexual orientation, or gender identity. The parties further assure that they will include the language of this paragraph in all agreements associated or connected in any way with this Agreement and shall cause all existing Agreements to similarly include this clause therein.

5.00 CONTRACTS FOR PUBLIC IMPROVEMENTS

Wyo. Stat. § 15-1-113 is expressly incorporated herein by this reference as though fully set forth herein.

6.00 SAFETY PROGRAMS

The City, as mandated by Occupational Safety and Health Administration (“OSHA”), has in place many safety programs. All independent contractors, their employees, and their subcontractors, under contract with the City, must be familiar with and comply with any and all applicable OSHA standards, regulations, and provisions.

7.00 INDEPENDENT CONTRACTOR

At all times during the term of this Agreement, the Contractor shall be considered an independent contractor. Neither Contractor nor any one employed by it shall represent, act, purport to act, or be deemed to be the agent, representative, employee, or servant of the City.

8.00 CONFIDENTIALITY

To the extent allowed by law, the City and the Contractor shall treat as confidential and not disclose to others information (including technical information, experience, or data) regarding either party’s plans, programs, plants, processes, products, costs, equipment, operations, or customers which come within the knowledge of the parties, without in each instance securing the prior written consent of the other party, unless such disclosure is required by law or legal process. However, nothing shall prevent either Contractor or the

City from disclosing to others, or using in any manner, information which either party can show (a) has been published or has become part of the public domain other than by acts of

Contractor or the City; (b) has been furnished or made known to Contractor or the City by third parties without restrictions on its disclosure; or (c) was in either party’s possession prior to the disclosure thereof by the City or Contractor to each other. Contractor shall not be restricted in any way from releasing information in response to a subpoena, court order, or legal process, but shall notify City of the demand for information before Contractor responds to such demand. The City reserves the right to prohibit the release of said information as provided by law.

9.00 CONFLICT OF INTEREST

In entering this Agreement, the Contractor covenants that it presently has no interest, and shall not acquire any interest, direct, indirect, financial, or otherwise, which would conflict in any manner or degree with performance of the services hereunder. Contractor further covenants that in the performance of the Agreement, no subcontractor, or person having such an interest, shall be employed by the City. Contractor certifies that no one who has or will have any financial interest under this Agreement is an officer or employee of the

City.

10.00 ACCEPTANCE NOT WAIVER

The City’s approval of drawings, plans, specifications, reports, and incidental work, or materials furnished hereunder shall not in any way relieve Contractor from responsibility for the technical accuracy of the work. The City’s approval or acceptance of, or payment for, any services shall not be construed to operate as a waiver of any of the City’s rights under this Agreement or any of its legal rights under statute and common law arising out of the performance of this Agreement.

11.00 INSURANCE REQUIREMENTS

The Contractor shall file a Certificate of Insurance with the City verifying each type of insurance coverage listed below.

The Certificate of Insurance shall be submitted to and approved by the City before the

Contractor begins to perform under this bid and the subsequent contract.

TYPE OF COVERAGE MINIMUM POLICY REQUIREMENTS

Commercial General Liability

(Including Products and Completed

Operations; Explosion, Collapse and

Underground if applicable to the hazards of a specific project.)

$1,000,000 per Occurrence

$2,000,000 Aggregate

Business Automobile Liability $1,000,000 (Combined Single Limit)

Workers’ Compensation

OR

Employer’s Liability

Statutory

$500,000 Each Accident

$500,000 Each Disease-Policy Limit

$500,000 Disease/Each Employee

It is understood and agreed that these policies are primary and non-contributory. All policies required under this contract shall be in effect for the duration of the project and contract. The Contractor shall immediately notify in writing the City Risk Manager, City

Clerk, and City Attorney of any fact, circumstance, or occurrence that has resulted in, or may result in, the cancellation or substantive change of any insurance coverage required by this contract, and failure to do so shall be construed to be a breach of this contract.

The Contractor shall name the City as an additional insured on the Contractor’s insurance policies, except workers’ compensation, and the Contractor shall provide a copy of the endorsements providing this coverage.

The City has the right to reject a certificate of insurance if the City determines that the

Contractor’s insurance company is widely regarded in the insurance industry as financially unstable. Any insurance company providing coverage under this contract shall have a minimum A.M. Best rating of A- (excellent).

The City has the right to review the insurance certificates of any or all Sub-Contractors used by the Contractor. Further, the City requires that the Sub-Contractors’ insurance coverages be at least equivalent to that required of the Contractor.

The City has the right to increase the required minimum limit of liability on any contract project as warranted by an increase in hazard. Examples of increased hazard include, but are not limited to, handling of hazardous materials and activities involving large congregations of people.

The City shall have the right to consult with the Contractor’s insurance agent for disclosure of relevant policy information, but the City’s non-request or non-review such policies, endorsements, or certificates shall not affect the City’s rights or Contractor’s obligations hereunder. Disclosure of relevant policy information would specifically involve, but is not limited to, exclusions, deductibles, and claims in progress which could significantly reduce the annual aggregate limit.

12.00 INDEMNITY

In entering into the Agreement, the Contractor agrees to hold harmless, defend, and indemnify the City of Cheyenne, its officials, employees, agents, and authorized volunteers against any and all claims and costs, including attorneys’ fees, arising during or resulting from the Contractor’s performance of the contract. The Contractor shall carry insurance as set forth in these Contract Documents. The Contractor acknowledges its understanding of this paragraph and realizes it may have a financial responsibility to the City. The City does not waive any applicable defenses and expressly reserves the right to invoke governmental immunity pursuant to the Wyoming Governmental Claims Act, Wyo. Stat.

§ 1-39-101, et seq. for any claim arising out of performance of this agreement.

The Contractor expressly understands and agrees that although the City and the Engineer have the right under this Contract to observe and review the Contractor’s work and operations, this right shall not relieve the Contractor from any of its covenants, obligations, or duties hereunder. The Contractor shall be responsible for and hold harmless the City, the Engineer, and their representatives from all suits, actions, or claims of any character, due to injuries or damages sustained by any person or property, in consequence of any neglect in performing the work, observing safety standards or regulations, through the use of unsafe or unacceptable practices or materials in the performance of the work, the

Contractor’s failure to comply with any law, ordinance or regulation or otherwise.

13.00 PROJECT RECORD DOCUMENTS

The Contractor shall maintain at the job site one copy of all Contract and project documents, each portion of which shall be clearly marked, “Project Record Copy”. These documents, including drawings, specifications, addenda, approved shop drawings, change orders, field orders, other Contract Modifications, and other approved documents submitted by the Contractor in compliance with various sections of the Contract

Documents, shall be maintained in good condition, available at all times for inspection by the City, and not used for construction purposes.

The Contractor shall mark up the most appropriate document to show significant changes made during construction progress, and significant detail not shown in the original Contract

Documents. The information shall include, but shall not be limited to, location of underground utilities and appurtenances referenced to permanent surface improvements, and location of internal utilities and appurtenances concealed in building structures referenced to visible and accessible features of structures.

The Contractor shall keep the project record documents current and not permanently conceal any work until required information has been recorded. Upon completion of the project and prior to final acceptance, the Contractor shall submit the marked up set of project record documents to the Engineer for the City along with the “Contractor’s

Certificate of Completion” found in the bidding documents. After the Engineer has inspected the work and has determined it to be substantially complete, the City will issue a “Certificate of Substantial Completion”, which will establish the date of commencement of the warranty period.

14.00 CONTRACT DOCUMENTS

The City will furnish to the Contractor, without charge, two (2) copies of the Contract

Documents including technical specifications and drawings. Additional copies requested by the Contractor will be furnished at cost.

15.00 TIME FOR COMPLETION

The Contractor shall commence the work required under this contract at the time stipulated by the City in the Notice to Proceed. The Contractor shall complete the work by completion date stated in the Invitation to Bid. Time will not be counted when the project is officially suspended by the City due to acts of God, winter shutdown, and City-originated suspensions that are necessary through no fault of the Contractor. In the latter instance, if the City suspends the work for more than ninety (90) calendar days, the

Contractor may apply for a price adjustment to compensate for reasonable expenses caused by the suspension. Any application for price adjustment or Contract Time extension will be submitted to the Governing Body of the City for its consideration in the form of a

Contract Modification. It will be the responsibility of the Contractor to provide sufficient documentation to substantiate any claim.

16.00 JOB OFFICES AND STAGING AREA

The Contractor and Sub-Contractor(s) may maintain office and storage facilities on the site which are necessary to properly conduct the work. These facilities’ locations shall not cause any interference to any work performed on the site. The Contractor shall consult with the City regarding the locations. Upon completion of the improvements, or as directed by the City, the Contractor shall remove all such temporary structures and facilities from the site. The Contractor shall leave the site of the work in the condition required by the

Contract.

On-site toilet facilities for employees of Contractors and Sub-Contractor(s) shall be provided and maintained in a sanitary condition. The Contractor shall remove all trace of these facilities prior to completion of the project.

17.00 THE USE OF CITY OWNED REFUSE CONTAINERS

All City contracts shall require all Contractors to use City-provided Sanitation services if available.

18.00 REFERENCE POINTS

Project survey points are provided by the City one time only, unless otherwise noted by the

City in the appropriate project manual.

The Contractor shall make all surveys that will be necessary for the proper construction.

The Contractor shall preserve all property pins and control points. If any of these are destroyed or disturbed due to the Contractor’s construction activities or negligence, the

Contractor will be charged at the Engineer’s established hourly crew rate for replacing them, with payment for this extra work to be made directly to the Engineer by deduction from the monthly periodic estimate payments to the Contractor. The Contractor shall also be responsible for any mistakes or damage resulting from the unnecessary loss or disturbances of control points.

19.00 SEQUENCE OF WORK

The Contractor shall make every effort to complete the work in a manner and fashion that minimizes roadway closures and inconveniences to the traveling public and adjacent property owners. Once barricades are placed in the right-of-way, the Contractor shall show progress of work during normal Working Days and hours. If no progress of work is recorded for twenty-four (24) hours and no concrete is waiting for strength, the Contractor shall remove barricades, re-open the right-of-way, and provide a safe travel way for the public. If the Contractor does not re-open the right-of-way or show progress of work within twenty-four (24) hours, the City shall use any and all means necessary to re-open the area at the Contractor’s expense. The Contract Documents are compiled to support the efficient operations of the Contractor and are not intended to supplant the Contractor’s responsibility of superintendence. Special consideration regarding schedules or work sequences necessary or anticipated during the course of the project will be identified in the Special

Provisions.

20.00 GENERAL TRAFFIC REQUIREMENTS

The Contractor shall provide adequate signs, barricades, lights, and flaggers, and take all necessary precautions to prevent accident or injury and to minimize inconvenience to the public during the progress of the work.

All traffic control or other protective devices shall be installed and maintained in accordance with the Uniform Manual of Traffic Control Devices or in conformance with the applicable requirements of the authority having jurisdiction in such matters. The

Contractor shall provide an American Traffic Safety Services Association (“ATSSA”) certified work site supervisor to supervise all traffic control operations if the City deems necessary.

Material stored on or adjacent to public streets shall not obstruct or inconvenience the traveling public.

Streets, driveways, or other access points shall not be closed without the prior consent of the City, Engineer, and proper governmental authorities. Fire hydrants on or near the site of the work shall be accessible at all times. The Contractor shall notify affected property owners, the City and the Engineer at least 48 hours in advance of any proposed closure for construction operations including any work to be done by utility companies.

The Contractor shall submit a traffic control diagram to the City for approval before work begins. The diagram shall indicate location and type of signs, cones, flashers, flagging, reflective barricades, and all other devices deemed necessary for the proper protection of the work area.

21.00 EXISTING ROADWAYS AND OTHER PROPERTY

The Contractor shall take all necessary precautions to protect adjacent roadways, properties, improvements, and underground facilities affected by the Contractor’s operations, regardless of the facilities’ ownership.

Any existing improvements or facilities damaged by the Contractor’s operations in the performance of the work under this Agreement shall be repaired or replaced by and at the expense of the Contractor to the satisfaction of the City.

The Contractor shall be responsible for the preservation and maintenance of all existing roadways affected but not directly disturbed by the work. The Contractor shall repair, replace, or clean any roadway indirectly affected by his or her operations during the course of the project. Such work shall be accomplished by and at the expense of the Contractor without reimbursement by the City.

22.00 FINAL CLEANUP

The Contractor shall clean all sidewalks, streets and other areas affected by construction and ensure removal of all loose surface materials. All piles of excess excavation, rocks, rubbish, or other debris shall be cleaned up and disposed of. Damage to any areas by the

Contractor will be repaired or replaced by the Contractor at no expense to the City. No extra compensation will be allowed for final cleaning of the site, but the cost thereof shall be included in the unit price bid for other items in the Proposal. If work is suspended for any reason, the Contractor will be required at the Contractor’s expense, prior to shut down, to provide for the public’s safety and use as directed by the City or Engineer.

23.00 ENGINEER OR INSPECTOR OVERTIME AND USE OF CITY RESOURCES:

Inspection work required beyond normal working hours by any Engineer or Inspector having authority on the project must have the City’s written approval twenty-four (24) hours in advance of scheduled work. In emergency situations, verbal approval may be given followed by written approval on the next working day. In an emergency situation, verbal approval will suffice until the next working day at which time written approval will be obtained.

The City of Cheyenne Board of Public Utilities (“BOPU”) requires that requests for services on the weekend be made not later than 4:30 p.m. on the Thursday prior to need so that appropriate personnel arrangements can be made.

All costs for overtime inspection or professional services associated with the work will be paid for by the Contractor.

No City services, equipment, or personnel will be provided for this project unless specifically defined and stated in the bidding or contract documents, nor will any be provided free of charge unless expressly stated in these documents.

24.00 FORCE ACCOUNT, EXTRA WORK, AND WORK CHANGES

When the Contractor is required to do work or services under the force account or extra work, the cost for said work will be calculated using the provisions of the Wyoming

Department of Transportation system for determining costs for equipment, operators and labor involved. Any extra work, additions, deletions or revisions in the work will be authorized by written Contract Modification or change orders. The Engineer may authorize minor changes or alterations in the work not involving extra cost and not inconsistent with the overall intent of the Contract Documents in the form of a Field Order.

25.00 CONTRACT MODIFICATIONS

a. General: Contract Modifications are used to increase or decrease the total Contract Price, to alter the Contract Time, or to alter any other contract agreement provision.

Each Contract Modification shall be processed in accordance with Section

2.04.160 of the City of Cheyenne Municipal Code

b. A Contract Modification does not invalidate the contract or release the surety. If the parties agree to a Contract Modification, the Contractor shall perform the work in the manner required by the contract as modified, except that the Contractor shall not perform any work which is subject to the Contract Modification, until such time as the City Engineer authorizes the Contractor to proceed. The City will initiate a request to modify the Contract by submitting the proposed Contract Modification to the Contractor for review and approval.

The City Engineer or agent thereof, e.g., a project manager, may issue a Field Order to authorize the work to be paid for under the Force Account bid item or to adjust existing bid item quantities without increasing the total Contract Price. See Section 24.00. The

Contractor may not begin work under any Contract Modification until the City Engineer has authorized the Contractor to proceed.

The Contractor shall use a Request for Adjustment form to request an adjustment of the

Contract Time or Contract Price. The City shall have no obligation to process oral requests for modification of the Contract Time or Contract Price, and no City official shall have the authority to approve oral modification requests. Proposed adjustments may be based upon extra work necessitated by an emergency, a change of conditions, or the City Engineer’s interpretation of the contract requirements. Requests for Adjustments shall not be valid unless the Contractor has filed the request with the Engineer within:

1. Two (2) Working Days after the occurrence of the emergency or the discovery of any change in conditions which necessitates Additional Work; or

2. Five (5) Working Days after the effective date of a Work Directive.

The City will pay for adjustments and modifications based on contract unit bid prices. If the Contractor’s cost of production or the character of the work is materially changed, the

City may adjust the contract as specified in this section or seek a Contract Modification.

The City will not pay for loss of anticipated profits resulting from adjustments or modifications, unless so specified in the adjustment or modification.

Differing Site Conditions: Before the conditions are disturbed or the affected work is performed or continued, the Contractor shall notify the City in writing if either of the following is encountered: (1) latent physical conditions that differ materially from those indicated in the contract; or (2) unusual physical conditions that differ materially from those ordinarily encountered and generally recognized as inherent in the work provided for in the contract. The City will not grant or consider Contract Modifications based on differing site conditions if the Contractor does not timely notify the City within two (2)

Working Days after discovering latent or unusual physical conditions.

Significant Changes in the Character of Work: The Contract Unit Price of each bid item in the proposal shall include the pro rata share of overhead and profit so that the sum of the products obtained by multiplying the quantity shown for each item by the unit price bid represents the total bid. The City may alter the contract quantities, the Work, or both as necessary to complete the project, subject to the requirement that modifications to the

Contract Price may be necessary in the event the alterations significantly change the character of the work. If alterations do not significantly change the character of the work specified in the contract, the City will pay for the altered work at contract unit prices and additional mark-ups for overhead and profit are not allowed.

Either of the following constitutes a “significant change” (1) when the character of the work, as altered, differs materially in kind or nature from that specified in the contract; or

(2) in accordance with the relevant section in the Instruction to Bidders, when the net monetary value of all such additive and subtractive changes in quantities of such items increases or decreases the original total Contract Price by more than twenty percent (20%).

Extra and Force Account Work: When necessary or desirable to complete the project, the

City may direct the Contractor to perform unforeseen work for which there is no pay item or unit price in the contract. The City shall seek a Contract Modification in the event the

City’s direction to perform unforeseen work results in an increase in the Contract Price, the alteration of the Contract Time or required any other modification of the Contract

Agreement. The City Engineer may direct the Contractor to perform work under the Force

Account item for minor changes or alterations in the work that do not increase the original

Contract Price. All Force Account Work shall be approved with a Field Order in accordance with the above procedures.

Extra work under the Force Account item shall be paid by one of the following methods:

(1) Contract unit bid prices that are representative of the work being performed, as specified in item Significant Changes in the Character of Work; and (2) Negotiated unit bid prices for items where the Contractor’s cost of production or the character of the work is materially changed. The negotiated unit bid prices shall include the pro rata share of overhead and profit. Overhead and profit mark-up on Sub-Contractor unit bid prices shall be limited to five percent (5%); (3) lump sum, as stipulated in the order authorizing the work. Documentation for lump sum pricing shall be provided to a degree sufficient for the

City Engineer to review for acceptability. Overhead and profit shall be limited to five percent (5%) on Sub-Contractor work and fifteen percent (15%) on work by Contractor’s own forces; and (4) Time and material basis utilizing approved materials, equipment, and labor costs calculated under the provisions of the latest edition of the Wyoming Department of Transportation Specifications Subsection 109.4.4.

26.00 PARTIAL USE OF SITE IMPROVEMENTS

The City may give notice to the Contractor and place in use those sections of the improvements which have been completed, inspected, and can be accepted as complying with the Contract Documents if, in its opinion, each section is reasonably safe, fit and convenient for the use and accommodation for which it was intended, provided:

The use of such sections of the improvements shall in no way impede the completion of the remainder of the work by the Contractor;

The Contractor will not be responsible for any damages or maintenance costs due directly to the use of such sections;

The use of such sections shall in no way relieve the Contractor of liability arising from having used defective materials or to poor workmanship.

Any guarantee period shall not commence until the date of the final acceptance of all work which the Contractor is required to construct under this contract.

27.00 TWO YEAR WARRANTY PERIOD

If after the approval of final payment and prior to the expiration of two (2) years after the date of Substantial Completion or such longer period as may be prescribed by law or by the terms of any applicable special guarantee, the Contractor shall promptly, without cost to the City and in accordance with the City’s written instructions, either correct such defective work or, if it has been rejected by the City, remove it from the site and replace it with non-defective work within thirty (30) calendar days of written notification by the City.

If the Contractor does not promptly comply with the terms of such instruction, the City may have the defective work corrected or the rejected work removed and replaced, and all costs incurred therefore, including compensation for additional professional services, shall be paid by the Contractor and its sureties. The remedies provided in this section are in addition to all other remedies available to the City under applicable law and shall not be construed as exclusive of any other legal right or remedy available to the City.

28.00 COMPLETION AND WARRANTY

The following replaces the City of Cheyenne & Board of Public Utilities Standard

Construction Specifications and Standard Drawings, Edition current as of the bid date for this project, Section 01054.1.10-Acceptance of the Standard Specification.

Substantial Completion. Shall be defined as when the project can be safely and effectively used by the public for its intended use, without further delays, disruptions, or other impediments and only clean up and work of a minor nature remains to be finished, as agreed to by the City Engineer or as otherwise specified. After written notice from the

Contractor of Substantial Completion, the Engineer and the City shall make a determination of acceptance of substantial completion. If in agreement, the City will issue written notice of Substantial Completion at which date the contract time will stop. The

Engineer will then make an inspection of the project and develop a punch list of items to be completed. The Contractor will have thirty (30) calendar days to complete all punch list items, with the exception of seasonal work item, which will be as agreed by the

Engineer and the City. Liquidated damages may be assessed by the City, in accordance with Section 29.00, for every day that expires after the allotted time for the completion of the punch list.

Warranty. The specified date in the City’s Notice of Substantial Completion issued to the

Contractor shall be the effective date for the beginning of the two-year warranty period.

Final Completion. After completion of the punch list, the Contractor shall issue the

Contractor’s Certificate of Completion along with the marked-up Project Record Drawings in accordance with Project Documents. At that time the Engineer and the City shall inspect and if all construction provided for and contemplated by the contract is found to be complete to their satisfaction, this inspection shall constitute the final inspection and the

Engineer shall make the final acceptance. The Contractor shall be notified in writing as to the date of the Final Completion.

Prior to the end of the Warranty Period, the City shall inspect the Project for defects in the workmanship or material. A written deficiency list shall be developed and provided to the

Contractor. Normal wear and tear shall not be considered a deficiency. The Contractor shall promptly, without cost to the City and in accordance with the City’s written instructions, either correct such defective work or, if it has been rejected by the City, remove it from the site and replace it with non-defective work within thirty (30) calendar days of written notification by the City.

29.00 LIQUIDATED DAMAGES

For each calendar day that any work shall remain uncompleted after the contract time specified for the completion of the work provided for in the contract, the following liquidated damages charges will be deducted from any monies due the Contractor:

ORIGINAL CONTRACT AMOUNT LIQUIDATED DAMAGE

CHARGE

From ($) To and including ($) Charge per calendar day ($)

0.00 25,000.00 250.00

25,000.01 50,000.00 500.00

50,000.01 100,000.00 1000.00

100,000.01 500,000.00 1500.00

500,000.01 1,000,000.00 2000.00

1,000,000.01 1,500,000.00 3000.00

1,500,000.01 and greater 3500.00

Permitting the Contractor to continue and finish the work or any part of it after the time fixed for its completion, or after the use of additional contract time, will in no way constitute a waiver on the part of the City to any of its rights under the contract.

Unless otherwise provided in the contract, liquidated damage charges will be calculated in accordance with the table. All time in excess of the required Contract Time will be calculated on a calendar day basis.

30.00 GOVERNMENTAL IMMUNITY

The City and its officials and employees do not waive governmental immunity by entering into this Agreement and specifically retain all immunities and defenses available to them as Governmental Entities pursuant to Wyo. Stat. § 1-39-101, et seq, and all other applicable laws. Further, the City fully retains all immunities and defenses provided by law with regard to any action, whether in tort, contract. or any other theory of law, based on this

Agreement. The City does waive its governmental immunities solely for the enforcement of the terms and conditions of this Agreement.

31.00 GOVERNING LAW, JURISDICTION, AND VENUE

The construction, interpretation, and enforcement of this Agreement shall be governed by the laws of the State of Wyoming. The courts of the State of Wyoming shall have jurisdiction over any action arising out of this Agreement and over the parties, and the venue shall be the First Judicial District, Laramie County, Wyoming.

32.00 COMPLIANCE WITH LAWS

This Agreement shall be governed in all respects by the laws of the State of Wyoming.

The parties hereto shall comply with all applicable federal, state, and local laws, rules, and regulations in the performance of this contract. The identified laws or regulations are included in this Agreement as mandated by statute or for the convenience of the Contractor.

The Contractor’s attention is directed to the fact that all applicable federal and state laws, municipal ordinances, and the rules and regulations of all authorities having jurisdiction over design and construction of the project shall apply to the Agreement throughout, and they are deemed incorporated herein. Other laws and regulations apply which are not included herein, and are within the Contractor’s duty and responsibility for compliance therewith.

33.00 DEFAULT

Each and every term and condition herein shall be deemed a material element of this

Agreement. In the event either party shall fail or refuse to perform according to the terms of this Agreement, such party may be declared in default.

34.00 REMEDIES

In the event a party declares the other party in default hereof, said party declaring default shall notify the defaulting party in writing, and such defaulting party shall be allowed a period of fifteen (15) calendar days to cure said default. In the event that the default remains uncorrected, the party not in default may elect to: (a) terminate this Agreement and seek damages; (b) treat this Agreement as continuing and require specific performance;

or (c) avail itself of any other remedy at law or equity.

In the event Contractor fails to strictly perform in accordance with this Agreement, the City may elect to make good such deficiencies and charge Contractor therefore.

35.00 TERMINATION

The City may, by written notice to Contractor, terminate this Agreement, in whole or in part, by giving Contractor fifteen (15) calendar days written notice. Upon receipt of such notice, Contractor shall discontinue all services affected (unless the notice directs otherwise), and deliver to the City representative within five (5) calendar days all documents belonging to the City, including but not limited to, data, drawings, specifications, reports, estimates, and summaries accumulated by the Contractor in the performance of this Agreement, whether completed or in progress. In the event of termination, the City shall pay Contractor for all work accepted as of the date of termination.

36.00 WAIVER

The waiver by either party of any term, condition, or covenant, or breach of any term, condition, or covenant, shall not constitute a waiver of any other term, condition, or covenant, or breach thereof.

37.00 SEVERABILITY

If any provision, section, subsection, sentence, clause, or phrase of this Agreement is invalidated by any court of competent jurisdiction, such holding shall not affect the validity of the remainder of the Agreement, which shall continue in full force and affect.

38.00 SUCCESSORS AND ASSIGNS

All the terms, conditions, and provisions herein shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

39.00 ASSIGNMENT

Neither party shall assign this Agreement without prior written consent of the other party.

Any delegation or assignment shall not operate to relieve either party of its responsibilities hereunder.

40.00 THIRD PARTY RIGHTS

The parties do not intend to create in any other individual or entity the status of third party beneficiary, and this Agreement shall not be construed so as to create such status. The rights, duties and obligations contained in this Agreement shall operate only between the parties to this Agreement, and shall inure solely to the benefit of the parties to this

Agreement. The parties to this Agreement intend and expressly agree that only the parties signatory to this Agreement shall have any legal or equitable right to seek to enforce this

Agreement, to seek any remedy arising out of a party’s performance or failure to perform any term or condition of this Agreement. This paragraph is not intended nor shall it be construed to waive all the parties’ immunities.

41.00 FORCE MAJEURE

The performance of the Agreement by either party shall be subject to force majeure including, but not limited to, acts of God, fire, flood, natural disaster, war or threat of war, acts or threats of terrorism, civil disorder, unauthorized strikes, governmental regulation or advisory, recognized health threats as determined by the World Health Organization, the

Centers for Disease Control, or local government authority or health agencies (including, but not limited to, the health threats of COVID-19, H1N1, or similar infectious diseases), curtailment of transportation facilities, or other similar occurrence beyond the control of the parties, where any of those factors, circumstances, situations, or conditions or similar ones prevent, dissuade, or unreasonably delay the performance required by this Agreement.

The Agreement may be cancelled by either party, without liability, damages, fees, or penalty, and any unused deposits or amounts paid shall be refunded, for any one or more of the above reasons, by written notice to the other party.

42.00 PROMPT PAYMENT

The intent of this section for Prompt Payment is to ensure that the general contractor and subcontractors always have the same percentage of withheld retainage throughout the duration of the project.

Bidder agrees to pay subcontractors within thirty (30) days of payment from City of

Cheyenne, for all completed and accepted work performed. Retainage shall be withheld in accordance with the percentage specified in the Agreement, or as modified in subsequent

Contract Modifications. If a partial release of retained funds is paid by the City of

Cheyenne to the Bidder, the Bidder agrees to release retained funds in the same percentage to subcontractors.