1-CLR Standard Terms and Conditions .pdf

CITY OF LITTLE ROCK

Finace • Procurement

Little Rock City Hall

500 W. Markham St.

Little Rock, AR 72201

CITY OF LITTLE ROCK (“CITY”) STANDARD TERMS AND CONDITIONS

1. Terms and Conditions of Solicitation Incorporated. The parties agree that this Agreement memorializes and incorporates by reference any and all written representations, warranties, terms, and conditions set forth in the underlying solicitation document(s) and the bid or proposal that became the basis of this contract award, which representations, warranties, terms, and conditions continue in full force and effect unless expressly amended hereby.

Accordingly, the provisions of this memorialization of this Agreement should be read as being consistent therewith and supplementary thereto to the extent reasonably possible. However, in the event of a conflict between the provision of this memorialization and the specific provisions of the bid or proposal that was the basis of the Contract Award, such conflict shall be resolved by giving priority to the documents in the order listed below including but not limited to conflicting order of precedence provisions.

2. Order of Precedence. In the event of a conflict, the order of precedence shall be as follows:

a. The Agreement;

b. Any attachments or exhibits to the Agreement;

c. These Standard Terms and Conditions;

d. The solicitation including any and all addenda;

e. The Vendor/Contractor’s response to the solicitation;

f. Invoices, purchases orders, change orders or other documents created to enable the parties to perform the services set forth in this Agreement.

3. Termination. Unless otherwise provided herein, the City shall have the right to terminate this Agreement, for cause or for the City’s convenience, by giving written notice to the Vendor/Contractor of such termination and specifying the effective date thereof, at least fifteen

(15) calendar days before the effective date of such termination. Upon such termination, the City will incur no liability whatsoever for any damages, loss, or expenses of any kind suffered or incurred by the Vendor/Contractor or for any compensation to the Vendor/Contractor arising from or incident to any termination of this Agreement, whether or not the Vendor/Contractor is aware of any such damages, loss, or expenses. Upon receipt of such notice of termination, the Vendor/Contractor shall stop all work under this Agreement.

In the event of such termination, all finished or unfinished documents, data, studies, and reports prepared by the Vendor/Contractor under this Agreement shall, at the option of the City, become the City’s property and the Vendor/Contractor shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents up to the effective date of termination pursuant to the terms of this Agreement, as long as such costs, in

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500 W. Markham St.

Little Rock, AR 72201 the aggregate, do not exceed the compensation set forth in this Agreement and approved by the City’s Board of Directors.

Upon termination or expiration of this Agreement, the Vendor/Contractor shall immediately return to the City all monies held by it but unexpended.

4. Independent Contractor. It is expressly agreed that the Vendor/Contractor is acting as an independent contractor in performing the work and services specified herein, and nothing in this Agreement is intended and nothing shall be construed to create an employer-employee, partnership, joint venture, or other type of relationship, whether under state or federal law, or to allow the City to exercise control or direction over the manner or method by which the Vendor/Contractor performs the services; provided always that the services to be provided shall be furnished in a manner consistent with the standards governing such services and the provisions of this Agreement. The City shall carry no workers’ compensation insurance or health or accident insurance to cover the Vendor/Contractor or the Vendor/Contractor’s employees or subcontractors for any type of loss which might result to the Vendor/Contractor or the Vendor/Contractor’s employees or subcontractors in connection with the performance of the services set forth in this Agreement. The City shall not pay any contribution to Social Security, unemployment insurance, federal or state withholding taxes, nor provide any other contributions or benefits which might otherwise be expected in an employer/employee relationship, it being specifically agreed that the Vendor/Contractor is not acting herein as an employee of City, but shall, at all times, and in all respects, have the rights and liabilities of an independent contractor.

5. Work Product. “Work Product” means any and all materials, regardless of format, created for the City or delivered to the City under this Agreement. Any and all Work Product produced by the Vendor/Contractor in the execution of the Scope of Services of this Agreement or other work as described herein is Work Product and shall become the property of the City upon the completion or termination of this Agreement unless otherwise agreed to herein. However, any reuse of the materials by the City without prior written authorization by the Vendor/Contractor, other than for the specific intended purpose of this Agreement, will be at the City’s sole risk. The City’s copies of all documents shall be on paper as well as a pre-approved electronic format. The Vendor/Contractor shall be entitled to retain copies of all project deliverables developed for the project for its records and use. Any Work Product that is not proprietary or confidential is subject to the Arkansas Freedom of Information Act.

6. Amendment. The parties may amend or modify this Agreement at any time, provided that such amendment(s) or modification(s) make specific reference to this Agreement, and are executed in writing by a duly authorized representative of both parties. Such amendment(s) or

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500 W. Markham St.

Little Rock, AR 72201 modification(s) shall not invalidate this Agreement, nor relieve or release the parties from their obligations under this Agreement.

7. Choice of law; venue. This Agreement shall be construed according to the laws of the State of

Arkansas without regard to any conflict of law principals and venue for any action related thereto shall lie exclusively in Pulaski County, Arkansas. In the event of any legal action to enforce or interpret this Agreement, the sole and exclusive venue shall be a court of competent jurisdiction in Pulaski County, Arkansas. The Vendor/Contractor hereby expressly waives and relinquishes any rights it might otherwise have (1) move to dismiss on grounds of forum non conveniens and

(2) move for a change of venue to a court outside Pulaski County, Arkansas.

If the Vendor/Contractor commences any action against the City in a court located other than in Little Rock and Pulaski County, Arkansas, upon request of the City, the Vendor/Contractor shall either consent to a transfer of the action to an Arkansas court of competent jurisdiction located in Little Rock and Pulaski County, Arkansas or, if the court where the action is initially brought will not or cannot transfer the action, the Vendor/Contractor shall consent to dismiss such action without prejudice and may thereafter reinstate the action in an Arkansas court of competent jurisdiction in Pulaski County, Arkansas.

8. Compliance with Law. The Vendor/Contractor shall comply with all applicable federal, state, and local laws and regulations, now in force or which may be in force in the future. In the event the City is a party to litigation as a consequence of the Work or Work Product, in whole or in part, of the Vendor/Contractor as defined in this Agreement, the Vendor/Contractor agrees to assist and cooperate with the City in such litigation, as additional services under this Agreement.

9. Indemnity. The Vendor/Contractor agrees to indemnify and hold harmless the City, its officers, agents and employees from:

a. Any claims or losses for services rendered by any subcontractor, person, firm, or other third party on account of or resulting from, the performance of this Agreement by the Vendor/Contractor; and

b. Any claims or losses resulting to any person or firm injured or damaged by the actions of the Vendor/Contractor or the Vendor/Contractor’s employees, including disregard of federal and state statutes or regulations, in the performance of this Agreement.

If the City defends any claim, demand, cause of action, or lawsuit arising out of any act, action, negligent acts, or negligent omissions, or willful misconduct of the Vendor/Contractor, its subcontractors, employees, agents, or servants during the performance of this Agreement, whether directly or indirectly, the Vendor/Contractor agrees to reimburse the City for all losses

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500 W. Markham St.

Little Rock, AR 72201 and expenses of any kind, including but not limited to attorney’s fees and court costs incurred in defending such claim, cause of action, or lawsuit.

The Vendor/Contractor further agrees to include in any contract with a subcontractor, person, or firm performing or supplying services, materials, or supplies in connection with the performance of this Agreement a clause by which such subcontractor, person, or firm agrees to indemnify the City, its officers, agents, and employees from any claims or losses resulting from the actions of such subcontractor, person, or firm. The Vendor/Contractor’s obligations under this Section are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement, if any.

10. Force Majeure. The parties are not responsible for delay caused by activities or factors beyond their reasonable control limited to delays by reason of strikes, acts of God, failure of the City to furnish timely information or to approve or disapprove the Vendor/Contractor’s work, faulty performance by contractors or governmental agencies, fires, floods, delays or defaults by suppliers of materials or services, or acts of the public enemy. When such delays beyond the Vendor/Contractor’s reasonable control occur, City agrees the Vendor/Contractor is not responsible in damages nor shall the Vendor/Contractor be deemed to be in default of this Agreement. Furthermore, City shall not be in default for, or held responsible for damages caused, or failure to perform in full or in part, its obligations due to circumstances beyond the City’s control, such as acts of God, acts of civilian or military authority, or other force majeure.

11. No Waiver. Failure of the City to enforce at any time any of the provisions of this Agreement, or to require at any time performance by the Vendor/Contractor of any of the provisions hereof, shall in no way be construed to be a waiver of such provisions, nor in any way to affect the validity of this Agreement, or any part thereof, or the right of the City to thereafter enforce each and every such provision. The waiver of the breach of one or more of any covenants or conditions by the City shall not be construed as the waiver of any subsequent breach of the same or any other covenant or condition; and the consent and approval of the City to any act by the Vendor/Contractor requiring the City’s consent or approval shall not be deemed a waiver and shall still render necessary the City’s consent or approval to or of any subsequent or similar act by the Vendor/Contractor. Further, the failure to pursue a particular remedy in connection with a particular type of breach shall not constitute a waiver of that particular remedy as to any subsequent recurrence of the same, or a similar, breach.

12. Severability. In the event any section, subsection, subdivision, paragraph, subparagraph, item, sentence, clause, phrase, or word of this Agreement is declared or adjudged to be invalid, unlawful, or unconstitutional, such declaration or adjudication shall not affect the remaining provisions of this Agreement, as if such invalid or unconstitutional provision was not originally a part of this Agreement. The parties shall endeavor in good-faith negotiations to replace the

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500 W. Markham St.

Little Rock, AR 72201 invalid, illegal, or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

13. Copies Same as Original. This Agreement shall be executed in the original, and any number of executed copies. Any copy of this Agreement so executed shall be deemed an original and shall be deemed authentic for any other use.

14. Captions. All captions contained in this Agreement are inserted only as a matter of convenience and in no way define, limit, or extend the scope or intent of this Agreement.

15. Entire Agreement. This Agreement and the documents referenced or incorporated herein contain the complete and entire agreement of the parties respecting the transactions contemplated herein, and supersede all prior negotiations, agreements, representations, and understandings, if any, among the parties regarding such matters.

16. Agreement Binding. The terms and conditions of this Agreement shall be binding upon the parties hereto, their respective heirs, executors, administrators, successors, and assignees.

17. Assignment. This Agreement shall not be assigned or transferred by either party without the prior written consent of the other party. The City agrees that the Vendor/Contractor will not be providing its services in association with others unless otherwise agreed to in writing by both parties to this Agreement.

18. Authority to Execute Agreement. The undersigned officials of the parties hereto are the properly authorized officials and have the necessary authority to execute this Agreement on behalf of the parties hereto, and each party hereby certifies to the other party that any necessary resolutions or other documentation extending said authority have been duly passed and are now in full force and effect.

19. No Presumption against the Drafting Party. This Agreement shall be construed without regard to the identity of the persons who drafted the provisions contained herein. Moreover, each and every provision of this Agreement shall be construed as though each party hereto participated equally in the drafting thereof. As a result of the foregoing, any rule of construction that the document is to be construed against the drafting party shall not be applicable. Both parties acknowledge that they have had full opportunity to review this Agreement with legal counsel of their choice.

20. Ratification. To the extent that the Vendor/Contractor has actually performed services under this Agreement after the start date of this Agreement but prior to the signing of this Agreement by the parties, those services are hereby ratified by both parties and shall be compensated in accordance with the terms and conditions of this Agreement.

Little Rock City Hall

500 W. Markham St.

21. Title VI Civil Rights Act Implementation and Assurances. The Vendor/Contractor, and its sub-contractors, sub-recipients, sub-grantees, successors, transferees, or assignees shall comply with:

a. Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d, et seq., 78 stat. 252), as amended, and its applicable federal statutory, regulatory authorities, other pertinent directives, circulars, policy, memoranda, and guidance prohibiting discrimination on the basis of race, color, national origin, age, sex, and disability and give assurance that it will promptly take any measures necessary to ensure such compliance;

b. All applicable provisions governing the City’s and applicable federal department’s or agency’s access to records, accounts, documents, information, facilities, and staff;

c. Any program or compliance reviews, or complaint investigations, or both, conducted by the City, or federal department or agency;

d. Record retention and reporting requirements, maintain and preserve all project records for a minimum of five (5) years and all requests for documents and materials in a timely, complete, and accurate manner; and

e. All other reporting, data collection, and evaluation requirements, as required by the City, prescribed by law or detailed in program guidance.

22. Non-Discrimination and Use of Funds.

a. Non-Discrimination. The Vendor/Contractor agrees to comply with all applicable federal and state laws and regulations regarding non-discrimination, and specifically agrees not to discriminate against any individual because of race, color, creed, religion, sex, national origin, age, disability, marital status, sexual orientation, gender identity, or genetic information and to require such compliance in contractual agreements with subcontractors and sub- subcontractors.

b. Americans with Disabilities Act/Equal Employment Opportunity Act Compliance. The

Vendor/Contractor agrees to comply with the requirements of the Americans with Disabilities Act and the Equal Employment Opportunity Act, and the regulations promulgated pursuant thereto, and to require such compliance in contractual agreements with subcontractors.

All drawings, specifications, plans, and other work performed under this Agreement, as applicable, shall meet or exceed the 2010 ADA Standards for Accessible Design, and any

Little Rock City Hall

500 W. Markham St.

Little Rock, AR 72201 updates thereto. Any exceptions to the 2010 ADA Standards for Accessible Design included in drawings, specifications, plans, or other work shall be noted in writing and approved by the City.

c. Use of Funds for Political and Sectarian Activities Prohibited. The Vendor/Contractor agrees that it shall not use any of the funds provided under this Agreement for political or sectarian purposes.

d. Failure to Comply. Failure to comply with this Paragraph Non-Discrimination and Use of

Funds shall result in immediate termination by the City without penalty or financial responsibility of any nature whatsoever.

23. Immunity. Nothing stated in this Agreement shall be construed as limiting the City’s immunity from liability in tort.

24. Notice and Written Communication. Notices required by this Agreement shall be in writing and delivered via United States mail (postage prepaid), commercial courier, or sent by facsimile or other electronic means. All notices and other written communications under this Agreement shall be addressed to the individuals in the capacities indicated in this Agreement.

Notice shall be deemed received as follows:

a. Notice by confirmed facsimile or express delivery service shall be deemed received and effective upon delivery.

b. Notice by certified or registered mail shall be deemed received and effective ten (10) days after dispatch.

c. Notice by confirmed e-mail shall be deemed received and effective upon sending, provided that the sender does not receive notice that delivery has failed.

25. Record Keeping and Retention. The Vendor/Contractor shall maintain all financial and accounting records in accordance with generally accepted principles of accounting. Upon reasonable request by the City, such records shall be made available for inspection. The Vendor/Contractor shall maintain all of its records relating to the work and services specified herein, including all personnel, property, and financial records, which shall be made available to the City upon request, for a minimum of five (5) years after the expiration or termination of this Agreement.

26. FOIA. The Vendor/Contractor acknowledges that the City is subject to the Arkansas Freedom of

Information Act and that any records in the City’s possession or control shall be subject to disclosure subject to legal exemptions pursuant to the Arkansas Freedom of Information Act.

27. No Arbitration. The City does not agree with or consent to the arbitration of disputes relating to

Little Rock City Hall

500 W. Markham St.

this Agreement and does not waive its right to a trial by jury.

28. Non-Appropriation of Funds. This Agreement shall terminate without penalty at such time as appropriated funds are not available to satisfy the obligations of the City hereunder. The failure of the City to make an appropriation in any given year shall not be deemed a breach of this Agreement, nor give rise to any cause of action by the Vendor/Contractor for legal or equitable relief. The City shall, to the extent possible, give the Vendor/Contractor written notice ninety

(90) days prior to such termination.

29. Continuing Obligations. All continuing covenants or obligations herein shall survive the expiration or earlier termination of this contract.

30. Statute of Limitations. The statute of limitation period shall be tolled for any fraudulent act committed by the Vendor/Contractor that the City cannot discover upon due diligence.

31. Time. All durations are in calendar days, unless otherwise noted.

32. Time of Essence. Time is expressly declared to be of the essence with respect to this Agreement.

33. Pledging Credit. The Vendor/Contractor agrees not to pledge the credit of the City, or to purchase, rent, lease or contract for equipment or appliances in the name of the City. The

Vendor/Contractor shall hold harmless the City any and all taxes (federal, state, local), worker’s compensation insurance, disability payments; social security payments, unemployment insurance payments, or any similar type of payment for the Vendor/Contractor or any employee thereof.

34. No Third Party Relationships. Nothing contained in this Agreement shall create a contractual relationship with, or cause of action in favor of, a third party against the City or the Vendor/Contractor.

35. Safeguards. The Vendor/Contractor shall take all reasonable precautions to safeguard all City property entrusted to the Vendor/Contractor’s custody or control. Additionally, the Vendor/Contractor shall take all reasonable precautions to protect against any bodily injury (including death) or property damage that may occur in connection with the performance of the services set forth in this Agreement.

36. Audits. The City may, in its sole discretion, audit the records of the Vendor/Contractor or its subcontractors, or both, at any time during the term of this Agreement or within five (5) years after this Agreement ends, in connection with the goods, work, or services provided under this Agreement. If any litigation claim or audit is started before the expiration of this retention period, the records shall be retained until all litigation, claims, or audit findings have been resolved.

Little Rock City Hall

500 W. Markham St.

Little Rock, AR 72201

If, as a result of such an audit, it is determined that the Vendor/Contractor or any of its subcontractors has overcharged the City in the audited period, the City shall notify the Vendor/Contractor. The Vendor/Contractor must then promptly reimburse the City for any amounts the City has paid the Vendor/Contractor due to the overcharges and, depending on the facts, also some or all of the cost of the audit.

Failure of the Vendor/Contractor to reimburse the City in accordance with the foregoing is an event of default under this Agreement, and the Vendor/Contractor will be liable for all of the City's costs of collection, including any court costs and attorneys’ fees.

37. Liability. The City assumes no liability for damages or injuries caused by the Vendor/Contractor’s equipment or personnel, if any, including but not limited to passing vehicular or pedestrian traffic struck by objects displaced by the Vendor/Contractor’s equipment or operations, if any.

38. No Claim. No claim whatsoever shall be made by the Vendor/Contractor against any official, agent, or employee of the City for, or on account of, anything done or omitted to be done in connection with this Agreement.

39. Liability. The City assumes no liability for damages or injuries caused by the Vendor/Contractor’s equipment or personnel, if any, including but not limited to passing vehicular or pedestrian traffic struck by objects displaced by the Vendor/Contractor’s equipment or operations, if any.