1-Exhibit B - Definitions, Standard TC.pdf

Exhibit B Standard Definitions, Terms & Conditions

Standard Definitions, Terms and Conditions

By acceptance of a Purchase Order or Agreement, or response to a Solicitation, Vendor agrees to the following terms and conditions, without modification, will govern:

1. DEFINITIONS

The following definitions shall be used to identify terms throughout procurement documents:

A. ADDENDUM – A written instrument issued by the City that modifies or clarifies the

Solicitation prior to the Due Date. “Addenda” is the plural form of the word.

B. AGREEMENT/CONTRACT – A mutually binding legal document obligating the Vendor to furnish the goods, equipment, or services specified within the Solicitation and obligating the City to pay for the goods, equipment, or services specified.

C. APPROPRIATE, APPROPRIATED, OR APPROPRIATION – The adoption by the City Council of a budget for a fiscal year that includes payments to be made under the Contract during the respective fiscal year.

D. BID/PROPOSAL/RESPONSE/OFFER/QUOTE/QUOTATION – A complete, properly signed response to a Solicitation that, if accepted, would bind the Respondent to perform the resulting Contract.

E. BIDDER/PROPOSER/RESPONDENT/OFFEROR– A person, firm, or entity identified throughout the Solicitation that they consider themselves qualified to provide the goods, equipment, or services specified herein, and are interested in making an offer to provide the goods, equipment, or services to the City.

F. CITY – The City of Hutto, a Home Rule law city located in Williamson County, Texas.

G. DELIVERABLES – The goods, products, materials, and/or services to be provided to the City under a Purchase Order or Contract.

H. DUE DATE – The date and time specified for receipt of Bids, Proposals, Responses, Offers, Quotations, and Qualification Statements.

I. GOODS – Materials, supplies, commodities, and/or equipment.

J. LATE OFFER – A Bid, Proposal, Quote, Response, or Submittal that is received after the Due Date and time specified in the Solicitation.

K. NON-PROFESSIONAL SERVICES – Services performed that are not of a professional nature such as lawn care, security, janitorial, etc.

L. PIGGYBACK CONTRACT – A Contract or Agreement that has been competitively bid in accordance with State of Texas statutes, rules, policies, and procedures and has been extended for the use of other state and local agencies and active State of Texas CO-OP entities.

M. PURCHASE ORDER – An order placed by the City for the purchase of goods or services issued on the City’s standard purchase order form and which, when accepted by the Vendor, becomes a Contract. The Purchase Order is the Vendor’s authority to deliver and invoice the City for Goods or Services specified, and the City’s commitment to accept the Goods or Services for an agreed-upon price.

N. PROFESSIONAL SERVICES – Services that use skills that are predominantly mental or intellectual, rather than physical or manual such as accounting, architecture, land surveying, law, medicine, optometry, professional engineering, etc.

O. REQUEST FOR QUALIFICATIONS STATEMENTS (RFQ) – A solicitation used to acquire professional services as defined by the State of Texas Government Code, Chapter 2254, commonly known as the Professional Services Procurement Act.

P. RESPONSIBLE – Refers to the financial and practical ability of the Offeror to perform the Contract and takes into consideration resources, expertise, and past performance of the Offeror as well as compliance with all City ordinances and regulations concerning the purchasing process.

Q. RESPONSIVE – A response to a Solicitation that meets all the requirements of a Solicitation.

R. SERVICES – Work performed to meet the requirements and demands of the Purchase Order. The furnishing of labor, time, or effort by the Vendor and their ability to comply with promised delivery dates, specifications, and technical assistance specified.

S. SOLICITATION/INVITATION TO BID/REQUEST FOR PROPOSALS/REQUEST FOR

QUOTES – The Solicitation document issued by the City that contains terms, conditions, and specifications for the service or commodity to be procured.

T. SUBCONTRACTOR – Any person or business enterprise providing goods, labor, and/or services to a Vendor if such goods, equipment, labor, and/or services are procured or used in fulfillment of the Vendor’s obligations arising from a Contract with the City.

U. VENDOR/CONTRACTOR – Person or business enterprise providing goods, equipment, labor, and/or services to the City as fulfillment of obligations arising from an Agreement or Purchase Order.

2. SOLICITATIONS

A. CONFLICT OF INTEREST:

Chapter 176 of the Texas Local Government Code requires an entity contracting or seeking to contract for the sale or purchase of property, goods, or services with a local governmental entity to disclose any affiliation or business relationship which might create a conflict of interest with a local government entity. The Conflict of Interest Questionnaire is available from the Texas Ethics Commission at https://www.ethics.state.tx.us/data/forms/conflict/CIQ.pdf, and completed forms must be submitted to the appropriate records administrator of the City not later than the seventh business day after the date the entity begins contract discussions or negotiations with the local governmental entity, or submits to the local governmental entity an application, response to a Request for Proposals or Bids, correspondence, or another writing related to a potential Agreement with the local governmental entity. If responding to a Solicitation, the Conflict-of-Interest Form may be submitted with the Response. The completed forms may be mailed or hand-delivered to the City Secretary at the following address: The City Manager or City Designee, Hutto, TX 78634. Any attempt to intentionally or unintentionally conceal a conflict of interest may result in disqualification of any response to a solicitation.

B. COMMUNICATIONS WITH THE CITY

To insure the proper and fair evaluation of a Solicitation, the city prohibits ex parte communication (e.g., unsolicited) initiated by the Offeror to any City Official or Employee evaluating or considering the Responses prior to the time an award has been made. Communication between Offeror and the City will be initiated by the appropriate City Official or Employee in order to obtain information or clarification needed to develop a proper and accurate evaluation of the Solicitation. Ex parte communication may be grounds for disqualifying the offending Offeror from consideration or award of the Solicitation then in evaluation or any future Solicitation.

Unless otherwise specified, all requests for clarification or questions regarding a Solicitation must be directed to the

City of Hutto

Purchasing Officer 500 W. Live Oak Street

Hutto, TX 78634

C. DISCLOSURE OF PENDING LITIGATION

Each Respondent shall include in its proposal a complete disclosure of any material civil or criminal litigation or pending investigation which involves the Respondent or in which the Respondent has been judged guilty.

https://www.ethics.state.tx.us/data/forms/conflict/CIQ.pdf, https://www.ethics.state.tx.us/data/forms/conflict/CIQ.pdf, D. CONFIDENTIALITY OF RESPONSES, PUBLIC INFORMATION ACT

All Responses are subject to release as public information unless the Response or specific parts of the Response can be shown to be exempt from the Texas Public Information Act. Respondents are advised to consult with their legal counsel regarding disclosure issues and take the appropriate precautions to safeguard copyrighted information, trade secrets, or any other proprietary information. The City assumes no obligation or responsibility for asserting legal arguments on behalf of potential Respondents.

If a Respondent believes that a Response or parts of a Response are confidential, then the Respondent shall so specify. The Respondent shall stamp in bold red letters the term "CONFIDENTIAL" on that part of the Response, which the Respondent believes to be confidential. Vague and general claims as to confidentiality shall not be accepted. All Responses and parts of Responses that are not marked as confidential will be automatically considered public information. Notwithstanding, responses to Requests for Proposals shall be opened in a manner that avoids disclosure of the contents to competing offeror and keeps the proposals secret during negotiations as provided for in Section

252.049 of the Local Government Code.

E. CLARIFICATIONS, WAIVER OF MINOR TECHNICALITIES OR DISCREPANCIES

The City reserves the right to request clarification or additional information specific to any Response after all Responses have been received and the Solicitation Due Date has passed. Additionally, the City reserves the right to accept or reject all or part of any Response, waive any formalities or technical inconsistencies, delete any requirement or specification from the Solicitation, or terminate the Solicitation when deemed to be in the City’s best interest.

F. COST OF PREPARATION OF RESPONSE

All costs directly or indirectly related to the preparation of a Response to this Solicitation or any oral presentation required to supplement and/or clarify a Response which may be required by the City shall be the sole responsibility of the Respondent.

G. RESPONSES BECOME PROPERTY OF THE CITY

Submissions received in response to a Solicitation become the sole property of the City.

H. WITHDRAWAL OF A RESPONSE

A Response may be withdrawn prior to the submission deadline by submitting a written request for its withdrawal to the Purchasing Office. A new Response may be submitted and must be received prior to the submission deadline to be considered. Modifications offered in any manner will not be considered if submitted after the submission deadline.

I. DETERMINATION OF AWARD, RESULTING AGREEMENT

In determining the award, the City reserves the right to select the acceptable Respondent who will offer contractual terms and conditions most favorable to the City. All requirements stated in the Solicitation shall become a part of any Contract, Agreement, or Purchase Order awarded as a result of the Solicitation, and any deviations from these requirements must be specifically stated and defined by the Respondent in their Response. Requests for clarification and the responses(s) shall also become a part of any Contract, Agreement, or Purchase Order resulting from the Solicitation.

J. AFFIRMATIONS AND CERTIFICATIONS

By signature on and submission of a Response, Respondent certifies they have not conspired with any other potential supplier in any manner to attempt to control competitive pricing. By signature on and submission of a Response, Respondent certifies they are duly qualified, capable, and a bondable business entity not in receivership or contemplating same and has not filed for bankruptcy. By signature on and submission of a Response, Respondent affirms that they will not discriminate against any employee or applicant as prohibited by law.

K. REQUIREMENTS FOR SUBMISSION OF RESPONSE OF FORMAL SOLICITATION

1. All Responses must be submitted on the form provided by the City and accompanied by all required attachments. Responses must be submitted before the due date and time shown on the Solicitation. Only electronic responses will be accepted. Physical submission or Late Responses will not be considered.

2. If applicable, Respondent will show the exact cost to deliver. Responses must specify the unit price on the quantity specified, extent, and show total. Unit prices shall govern, including in case of errors. Cash discounts will not be considered in determining award; all cash discounts offered will be taken if earned. Respondent will list and deduct all discounts not based on early payment from prices quoted.

3. The City is exempt from all federal excise, state, and local taxes unless otherwise stated. The City claims exemption from under Texas Tax Code §151.309, as amended. Texas Limited Sales Tax Exemption Certificates will be furnished upon request. Do not include taxes in Response to any Solicitation.

4. Unless stated otherwise, any catalog, brand name, or manufacturer's reference used in the Solicitation is descriptive (not restrictive) and is used to indicate type and quality desired. Responses on brands of like nature and quality will be considered. If quoting on other than referenced specifications, the Response MUST show manufacturer brand or trade name and description of product offered. Illustrations and complete descriptions of product offered should be made part of the Response. If Respondent does not identify exceptions to the specifications shown in this Invitation, Respondent will be required to furnish brand names, numbers, etc., as shown in the Solicitation.

5. Response must show the number of days required to deliver items or provide services to the City’s designated location under normal conditions.

Unrealistically short or long delivery promises may cause Response to be disregarded.

3. PURCHASE ORDERS

A. GENERAL TERMS AND CONDITIONS

i. ACCEPTANCE

A Purchase Order is the City’s commitment to make procurement and is subject to Vendor’s acceptance of the City’s terms and conditions.

ii. ABSESENCES OF PURCHASE ORDER OR AGREEMENT

The City is not responsible for delivery of any materials or services without a proper Purchase Order.

iii. VENDORS OBLIGATIONS

The Vendor shall fully and timely provide all deliverables described in the Solicitation and in the Vendor’s Offer in strict accordance with the terms, covenants, and conditions of the Agreement and all applicable Federal, State, and local laws, rules, and regulations.

iv. EFFECTIVE DATE/TERM

Unless otherwise specified in the Solicitation, this Agreement shall be effective as of the date the City issues and signs the Purchase Order and shall continue in effect until all obligations are performed in accordance with the Agreement.

v. SUBCONTRACTORS

1. Require that all deliverables to be provided by the

Subcontractor be provided in strict accordance with the provisions, specifications, and terms of the Agreement;

2. Prohibit the Subcontractor from further subcontracting any portion of the Agreement without the prior written consent of the City and the Vendor. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance, and amount acceptable to the City;

3. Require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Vendor in sufficient time to enable the Vendor to include same with its invoice or application for payment to the City in accordance with the terms of the Agreement;

4. Require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified and shall name the City as an insured party;

5. Require that the Subcontractor indemnify and hold the City harmless to the same extent as the Contractor is required to indemnify the City;

6. Pay each Subcontractor its appropriate share of payments made to the Vendor not later than ten (10) calendar days after receipt of payment from the City.

vi. DELAYS The City may delay scheduled delivery or other due dates by written notice to the Vendor if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Agreement, the City and the Vendor shall negotiate an equitable adjustment for costs incurred by the Vendor in the Agreement price and execute an amendment to the Agreement. The Vendor must assert its right to an adjustment within ten (10) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution Process specified in Section. However, nothing in this provision shall excuse the Vendor from delaying the delivery as notified.

vii. FORCE MAJEURE Neither party shall be liable for any default or delay in the performance of its obligations under this Agreement if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond reasonable control. In the event of default or delay in performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform.

viii. INSURANCE REQUIREMENTS Unless specific insurance requirements are noted, Vendor shall maintain insurance coverage appropriate for the fulfillment of the Purchase Order. In the event the Vendor, its employees, agents, or subcontractors enter premises occupied by or under the control of the City, the Vendor agrees to maintain public liability and property damage insurance in reasonable limits covering the obligations set forth in this

Purchase Order and will maintain Workers’ Compensation coverage (either by insurance or if qualified pursuant to law, through a self-insurance program) covering all employees performing on premises occupied by or under control of the City. The Vendor shall not commence work until the required insurance is obtained. Upon request, Vendor shall provide a copy of its insurance policies to the City within fourteen

(14) days. Failure to provide the required certificate of insurance may subject the vendor to disqualification from consideration for the award.

The Vendor must also forward a certificate of insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage.

For the duration of any contract resulting from this Solicitation, Vendor shall acquire insurance with financially sound and reputable independent insurers, as applicable, as set forth below:

Type of Insurance Amount of Insurance Required Provisions

Commercial General (Public) Liability to include

$1,000,000 per occurrence The City must be listed as an additional insured and provide thirty (30) days' coverage for, at a minimum, the following:

and $2,000,000 general aggregate notice of cancellation or material change in coverage.

OR

Premises/Operations; The City must be provided

Operations; Independent $2,000,000 combined a waiver of subrogation.

Contractors; Personal Injury, single coverage limit

And Contractual Liability. City prefers the insurer be rated B+V1 or higher by A.M. Best or A or higher by Standard and Poor’s.

Business Auto Liability $1,000,000 combined The City must be provided with a waiver of single limit subrogation.

Workers’ Compensation & Statutory Limits of The City must be provided with a waiver of Employers Liability $1,000,000 per incident subrogation.

Professional Liability $1,000,000 per occurrence The inclusion of a no- burn-off provision is required.

$1,000,000 Bodily Injury $1,000,000 Property per

Liability - Railroads occurrence required for None.

any work performed on or within fifty (50) feet of any railroad property.

Prior to the execution of any awarded contract by the City, the successful Proposer shall forward Certificates of Insurance to the Purchasing Manager. The required insurance policies shall be procured and maintained in full force and effect for the duration of the awarded contract. Certificate Holder shall be:

City of Hutto at 500

W. Live Oak St Hutto, Texas

ix. EXCEPTIONS TO SPECIFICATIONS

Deviation from the specifications must be clearly indicated in the Response to the Solicitation or promptly documented in writing at or before the time of the award. Any deviations or exceptions are subject to review by the City and may be grounds for rejection.

x. TRAVEL EXPENSES

All travel, lodging, and/or per diem expenses associated with providing the materials, equipment, or services specified must be included in the original Quotation and/or the resulting Purchase Order or Agreement. All travel expenses are subject to review by the City and documentation of actual itemized expenses may be requested. No reimbursement will be made without prior authorization, or for expenses not actually incurred.

Airline fares in excess of coach or economy will not be reimbursed.

xi. HUB REQUIREMENTS

The City complies with the requirements of the State of Texas Local Government Code, Chapter 252, Section 252.0215.

xii. SPECIAL TOOLS & EQUIPMENT

If the price stated in the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Vendor to fulfill the Agreement, such special tooling and/or equipment and all process sheets associated thereto shall become the property of the City and shall be identified by the Vendor as such.

B. SERVICES

i. PLACES & CONDITIONS OF WORK, ACCESS TO SITE

If Services are to be performed principally on the City’s premises or in public rights of way, the City shall provide the Vendor access to the sites where the Vendor is to perform the Services as required for the Vendor to perform in a timely and efficient manner, in accordance with and subject to applicable security laws, rules and regulations. The Vendor acknowledges that it has satisfied itself as to the nature of the City’s service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of the materials, equipment, labor, and facilities necessary to perform the Services and any other conditions or states of fact which could, in any way, affect the performance of the Vendor’s obligations under the Agreement. The Vendor shall promptly notify the City if the actual site or service conditions differ from the expected conditions and failing to do so, hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature.

ii. VENDOR TO PROVIDE ALL MATERIAL, EQUIPMENT & LABOR

Vendor shall provide all goods and labor necessary to perform Services.

All material must be new and all equipment utilized must be in good safe working condition and suitable for Services. Vendor shall employ all personnel for Services in accordance with the requirements of applicable local, state, and federal law.

iii. WORKFORCE

If Services are to be performed principally on the City’s premises or on public right-of-way’s:

Vendor shall employ only orderly and competent workers, skilled in the performance of the Services which they will perform under the Agreement. Vendor, its employees, subcontractors, and subcontractor’s employees while engaged in participating in a Solicitation or while in the course and scope of delivering goods and services under a City Purchase Order or Agreement may not: use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the Agreement; or use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated or under the influence of alcohol or drugs while on the job.

If the City or the City’s representative notifies the Vendor that any worker is incompetent, disorderly, or disobedient, has knowingly or repeatedly violated safety regulations, has possessed firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Vendor shall immediately remove such worker from Agreement services and may not employ such worker again on Agreement services without the City’s prior consent.

iv. COMPLIANCE WITH ALL HEALTH, SAFETY & ENVIRONMENTAL

REQUIREMENTS

If Services are to be performed principally on the City’s premises or on public rights of way, the Vendor, its subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules, and regulations in the performance of the Services, including but not limited to those promulgated with the City and the Occupational Safety and Health Administration (OSHA). In the case of conflict, the most stringent safety requirement shall govern. The Vendor shall defend, indemnify, and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties, and liabilities of any kind or nature arising from the breach of the Vendor’s obligations under this paragraph.

v. STOP WORK NOTICE

The City may issue an immediate Stop Work Notice in the event the Vendor is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Vendor shall cease all work until notified by the City that the violation or unsafe condition has been corrected. The Vendor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice.

vi. WARRANTY OF SERVICES

Vendor warrants and represents that all Services to be provided to the City under the Agreement will be fully and timely performed in good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Agreement, and all applicable Federal, State, and local laws, rules or regulations. This warranty may not be limited, excluded, or disclaimed and any attempt to do so will be without force or effect. Unless otherwise specified, the warranty period shall be a minimum of one (1) year from acceptance by the City of Services. In the event any applicable warranty is breached, the Vendor shall promptly upon receipt of demand of performance, perform the Services again in accordance with the above standard at no additional costs to the City. All costs incidental to such additional performance shall be borne solely by the Vendor. The City shall endeavor to give the Vendor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City’s rights under this section. In the event the Vendor is unable or unwilling to perform the services in accordance with the above standards as required by the City, then in addition to any other available remedy, the City may reduce the number of services originally required to purchase from the Vendor under the Agreement and procure conforming services from other sources. In such event, the Vendor shall pay the City upon demand the increased cost, if any, incurred by the City to procure such services from an alternative source.

C. COMMODITIES/EQUIPMENT

i. MATERIAL SAFETY DATA SHEETS

Under the “Hazardous Communication Act,” commonly known as the “Texas Right to Know Act,” a Vendor must provide the City WITH EACH DELIVERY Material Safety Data Sheets, which are applicable to hazardous substances as defined in the Act.

ii. GOODS

Goods furnished shall be new and the latest improved model in current production, as offered to commercial trade, and shall be of quality workmanship and material. The Vendor represents that all goods and equipment offered shall be new. Unless otherwise specified, used, shopworn, demonstrator, prototype, or discontinued models are not acceptable.

iii. PACKAGING OF DELIVERABLES

Vendor must package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and the unit price. Unless otherwise provided in writing by the City, each shipping container shall be clearly and permanently marked with the Vendor’s name and address, and the City’s name, address, and Purchase Order number. Vendor shall bear all costs of packaging. Deliverables must be suitably packed to secure lowest transportation cost, conform with requirements of common carriers and ensure safe delivery. The City’s count or weight shall be final and conclusive on shipments not accompanied by packing lists.

iv. WARRANTY

The goods or equipment specified shall be warranted against defects in material or workmanship for a period of not less than twelve (12) months from date of acceptance by the City. If the manufacturer’s warranty exceeds twelve (12) months, then the manufacturer’s warranty shall be in effect. Vendor shall furnish a copy of the manufacturer’s warranty at the time of delivery.

v. NO LIMITATION OF MANUFACTURERS’ WARRANTIES

Vendor may not limit, exclude or disclaim any warranty provided by manufacturer.

D. DELIVERY

i. DELIVERY TERMS, TRANSPORTATION CHARGES, FOB

Deliverables shall be shipped FOB destination (point of delivery) unless otherwise specified on the Purchase Order or in the Solicitation. The Vendor’s price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship deliverables. The place of delivery shall be specified in the Purchase Order.

ii. NO SUBSTITIONS OR CANCELLATIONS

Unless specifically permitted in writing by the City, no substitutions or cancellations shall be acceptable.

iii. NOTICE OF DELAY IN DELIVERY

If a delay in delivery is anticipated, Vendor shall give written notice to the City. The City has the right to extend the delivery time/service date or to cancel the Purchase Order or Agreement. Vendor shall keep the City advised at all times of the status of the order. Default in promised delivery, service or failure to meet specifications authorizes the City to procure the goods or services from an alternate source and charge the full increase, if any, in cost and handling to defaulting Vendor. Default on delivery may result in legal action and recourse.

iv. DELIVERY LOCATION HOURS, DAYS, HOLIDAYS

Unless otherwise specified, all deliveries must be made to City of Hutto, at the City Department ship to address on the Purchase Order between the hours of 8 a.m. and 4 p.m. (CST), Monday through Friday except regularly observed state and federal holidays. Receipt of goods or materials does not signify acceptance.

v. NO SHIPMENT UNDER RESERVATION

Vendor is not authorized to ship deliverables under reservation and no tender of bill of lading will operate as a tender of deliverables.

vi. TITLE/RISK OF LOSS

Title to and risk of loss of the deliverables shall pass to the City only when the City receives and accepts the deliverables (no delivery, no sale).

vii. RIGHT OF INSPECITON & REJECTION

The City expressly reserves all rights under the law, including but not limited to, the Uniform Commercial Code, to inspect the deliverables at delivery or at a reasonable time subsequent to delivery, and to reject defective or non-conforming deliverables. If the City has the right to inspect the Vendor’s or the Vendor’s subcontractors’ facilities, or the deliverables at the Vendor’s or the Vendor’s subcontractors’ premises, the Vendor shall furnish or shall cause to be furnished without additional charge all reasonable facilities and assistance to the City to facilitate such inspection.

viii. ACCEPTANCE OF INCOMPLETE OR NON-COMFORMING GOODS

If, instead of requiring immediate correction or removal and replacement of defective or non-conforming deliverables, the City prefers to accept such deliverables, the City may do so. The Vendor shall pay all claims, losses, and damages attributable to the City’s evaluation of and determination to accept such defective or non-conforming deliverables.

If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non-conforming deliverables. If discovery that the deliverables are defective or non- conforming occurs after final payment, Vendor may be required to refund such amounts to the City.

E. PAYMENT

i. TAX EXEMPT STATUS

The City is exempt from all federal excise, state and local taxes unless otherwise stated in this document. The City claims exemption from all sales and/or use taxes under Texas Tax Code §151.309, as amended.

Texas Limited Sales Tax Exemption Certificates are furnished upon request. Vendor will not charge for such taxes. If billed, the City will not remit payment until a corrected invoice is received.

ii. INVOICING REQUIREMENTS

Unless otherwise specified, all invoices shall be submitted to the City of Hutto, City Manager or City Designee, 500 W. Live Oak Street Hutto, TX 78634 and issued as required by the Purchase Order or Agreement.

Each invoice must reference the unique Purchase Order number and include the Vendor’s complete name and remit to address. If applicable, transportation and delivery charges must be itemized on the invoice. A copy of the bill of lading and the freight waybill must be submitted with the invoice, if applicable. Invoices for labor must include a copy of all time sheets with labor rate and Purchase Order or Agreement number clearly identified. Invoices for labor shall also include a tabulation of hours worked at the appropriate rates and grouped by work order number, if applicable. Time billed for labor shall be limited to hours worked at the work site.

iii. PAYMENT TERMS

All payments will be processed in accordance with Texas Prompt Payment Act, Texas Government Code, Subchapter B, Chapter 2251. The City will make every effort to pay Vendor within thirty days after the later of: acceptance of goods, supplies, materials, equipment, the day of performance of services was completed; or the day of receipt of a correct invoice for goods, supplies, materials, equipment or services. The Vendor may charge a late fee (fee shall not be greater than that permitted under the Texas Prompt Payment Act) for payments not made in accordance with this prompt payment policy; however, the policy does not apply to payments made by the City in the event: (a) there is a bona fide dispute between the City and Vendor concerning the goods, supplies, materials, equipment delivered, or the services performed, that causes the payment to be late; (b) the terms of a federal agreement, grant, regulation or statute prevents the City from making a timely payment with Federal funds; (c) there is a bona fide dispute between the Vendor and a subcontractor and its suppliers concerning goods, supplies, material or equipment delivered, or the services performed, which caused the payment to be late; or (d) the invoice is not mailed to the City in strict accordance with instructions on the Purchase Order or Agreement, or other such contractual agreement.

iv. RIGHT TO AUDIT

The Vendor agrees that the representatives of the City shall have access to, and the rights to audit, examine, or reproduce, any and all records of the Vendor related to the performance under this Agreement. The Vendor shall retain all such records for a period of four (4) years after final payment on this Agreement or until all audit and litigation matters that the City has brought to the attention of the Vendor are resolved, whichever is longer. The Vendor agrees to refund to the City any overpayments disclosed by any such audit.

v. FIRM PRICING

The price shall remain firm for the duration of the Purchase Order or Contract, or extension periods. No separate line-item charges shall be permitted for either bidding or invoice purposes, which shall include equipment rental, demurrage, fuel surcharges, delivery charges, and cost associated with obtaining permits or any other extraneous charges.

Vendor further certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor.

vi. PRICE WARRANTY

The Vendor warrants the prices quoted are not materially higher than the Vendor’s current prices on orders by others for like deliverables under similar terms of purchase. In addition to any other remedy available, the City may deduct from any amounts owed to the Vendor, or otherwise recover, any amounts paid for items materially in excess of the Vendor’s current prices on orders by others for like deliverables under similar terms of purchase.

vii. VENDOR OWING TAXES OR FEES TO THE CITY

Payment will not be made to any person, firm, or in arrears in taxes or fees to the City.

viii. TERMS, CONDITIONS & ADDITIONAL REQUIREMENTS

A. VENDOR’S OBLIGATION

Vendor shall fully and timely provide all deliverables described in Solicitation and in the Vendor’s Offer in strict accordance with the terms, covenants, and conditions of the Agreement and all applicable federal, state, and local laws, rules and regulations.

B. DEFAULT

Vendor shall be in default under the Agreement if the Vendor: (a) fails to fully, timely, and faithfully perform any of its material obligations under the Agreement, (b) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (c) makes a material misrepresentation in Vendor’s Offer, or in any report or deliverable required to be submitted by Vendor to the City.

C. ABANDONMENT OR DEFAULT

A Vendor who abandons or defaults the work on the Agreement and causes the City to purchase the services elsewhere may be charged the difference in service if any and may not be considered in the re-advertisement of the service and may be rejected as an irresponsible bidder and not considered in future Solicitations for the same type of service unless the scope of work is significantly modified.

D. TERMINATION/CANCELLATION

1. TERMINATION FOR CAUSE

In the event of default by the Vendor, the City shall have the right to terminate the Agreement for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Vendor, within such ten (10) day period cures such default, or provides evidence sufficient to prove to the City’s satisfaction that such default does not, in fact, exist. In addition to any other remedies available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses, and expenses incurred by the City as a result of the Vendor’s default, including without limitation, cost of cover, reasonable attorneys’ fees, court costs, prejudgment and post- judgment interest at the maximum lawful rate. Additionally, in the event of default by the Vendor, the City may remove the Vendor from the City’s Vendor List and any Offer submitted by the Vendor may be disqualified for up to three (3) years. All rights and remedies under the Agreement are cumulative and not exclusive of any other right or remedy provided by law.

2. TERMINATION WITHOUT CAUSE

The City shall have the right to terminate the Agreement, in whole or in part, without cause at any time upon thirty (30) calendar days prior written notice. Upon receipt of a notice of termination, the Vendor shall promptly cease all further work pursuant to the Agreement, with such exceptions, if any, specified in the notice of termination. The City shall pay the Vendor, to the extent of funds appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof.

3. NON-APPROPRIATION

The resulting Agreement is a commitment of the City’s current revenues only. It is understood and agreed that the City shall have the right to terminate the Agreement at the end of any City fiscal year (September 30th) if the governing body of the City does not appropriate funds sufficient to purchase the estimated yearly quantities, as determined by the City’s budget for the fiscal year in question. The City may effect such termination by giving the Vendor written notice of termination at the end of its then current fiscal year.

4. CANCELLATION

The City reserves the right to cancel the Agreement for default all or any part of the delivered portion of the deliverables if the Vendor breaches any term hereof including warranties, becomes insolvent, or commits acts of bankruptcy. Such right of cancellation is in addition to and not in lieu of any remedies which the City may have in law or in equity.

F. FRAUD

Fraudulent statements by the Vendor on any Offer or in any report or deliverable required to be submitted by the Vendor to the City shall be grounds for termination of the Agreement for cause by the City and may result in legal action.

G. INDEMNITY

VENDOR SHALL DEFEND (at the option of the City), INDEMNIFY AND HOLD

HARMLESS THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES

FROM AND AGAINST ANY AND ALL SUITS, ACTIONS, LEGAL PROCEEDINGS,

CAUSES OF ACTION, CLAIMS, DEMANDS, DAMAGES, JUDGMENTS, LOSSES,

LIENS, COSTS, EXPENSES, ATTORNEYS’ FEES AND ANY AND ALL OTHER

COSTS, FEES AND/OR CLAIMS OF ANY KIND OR DESCRIPTION ARISING OUT

OF, IN CONNECTION WITH OR RESULTING FROM THE AGREEMENT OR THE

GOODS OR SERVICES PROVIDED UNDER THE AGREEMENT. THE VENDOR AND

THE CITY ARE CONCURRENTLY NEGLIGENT, EACH PARTY’S LIABILITY SHALL

BE LIMITED TO THAT PORTION OF NEGLIGENCE ATTRIBUTABLE TO IT AS

DETERMINED UNDER THE APPLICABLE PROPORTIONATE RESPONSIBILITY

RULES OF THE STATE OF TEXAS. NOTHING HEREIN SHALL BE DEEMED TO

LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT

LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY

WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM.

H. LIABILITY

Any person, firm or corporation performing services pursuant to this Agreement or Purchase Order shall be liable for all damages incurred while in the performance of such services. Vendor assumes full responsibility for the work to be performed hereunder and hereby releases, relinquishes, and discharges the City, its officers, agents and employees from all claims, demands and causes of action of any nature including the cost of defense thereof, for any injury to, including death of, any person whether that person be a third party, supplier or an employee of either of the parties hereto, and any loss of or damage to property, whether the same be that of either of the parties, caused by or alleged to have been caused by, arising out of or in connection with the issuance of the Agreement or Purchase Order to the Vendor and the negligence of the Vendor, whether or not said claims, demands and causes of action in whole or in part are covered by insurance. Certificates of insurance may be required for, but not limited to, Commercial General Liability, Business Auto Liability, Workers Compensation and Professional Liability Insurance.

I. INFRINGEMENT

Vendor represents and warrants to the City that: (a) Vendor shall provide the City good and indefeasible title to the deliverables and (b) the deliverables supplied by the Vendor in accordance with the specifications of the Agreement shall not infringe, directly or contributory, any patent, trademark, copyright, trade secret or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Vendor does not know of any basis for any such claims. Vendor shall, at its sole expense, defend, indemnify and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (a) any claim that the City’s exercise anywhere in the world of the rights associated with the City’s ownership, and if applicable, license rights, and its use of the deliverable infringes the intellectual property rights of any third party; or (b) Vendor’s breach of any of the Vendor’s representations or warranties stated in this Agreement. In the event of any such claim, the City shall have the right to monitor such claim or, at its option, engage its own separate counsel to act as co-counsel on the City’s behalf. Further, Vendor agrees that the City’s specifications regarding the deliverables shall in no way diminish Vendor’s warranties or obligations under the Section, and the City makes no warranty that the products, development, or delivery of such deliverables will not impact such warranties of Vendor.

J. DAMAGE TO CITY PROPERTY

Vendor shall be responsible for any and all damage to the City’s equipment and/or property, the workplace and its contents, by its work, negligence in work, its personnel, and equipment. Vendor shall be responsible and liable for the safety, injury, and health of its working personnel while its employees are performing service work.

K. OVERCHARGES

Vendor hereby assigns to the City any and all claims for overcharges associated with this Agreement which arise under the antitrust laws of the United States, 15 USCA Section 1 et seq., and/or which arise under the antitrust laws of the State of Texas, Business and Commerce Code Ann., Section 15.01, et seq.

L. CONFIDENTIALITY

In order to provide the deliverables to the City, Vendor may require access to certain of the City’s and/or its licensors’ confidential information (including, but not limited to, inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, “Confidential Information”). Vendor acknowledges and agrees that the Confidential Information is the valuable property of the City and/or its licensors, and any unauthorized use, disclosure, dissemination, or other releases of the Confidential Information will substantially injure the City and/or its licensors.

The Vendor (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City, or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or as a result of an order of any court or other governmental authority with proper jurisdiction, provided the Vendor promptly notifies the City prior to disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Vendor agrees to use protective measures no less stringent than the Vendor uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information.

M. CODES, PERMITS & LICENSES

Vendor shall comply with all federal, state, and local standards, codes and ordinances and the terms and conditions of the services of the electric utility, as well as other authorities that have jurisdiction pertaining to equipment and materials used and their application. None of the terms or provisions of the specification shall be construed as waiving any rules, regulations or requirements of these authorities. Vendor shall be responsible for obtaining all necessary permits, certificates and/or licenses to fulfill contractual obligations to the City.

N. ADVERTISING/PUBLICITY

Vendor shall not advertise or otherwise publicize, without the City’s prior written consent, the fact that the City has entered into an Agreement with Vendor, except to the extent required by applicable law.

O. INDEPENDENT CONTRACTOR

The Agreement shall not be construed as creating an employer/employee relationship, a partnership, or joint venture. The Vendor’s services shall be those of an independent contractor. The Vendor agrees and understands that the Agreement does not grant any rights or privileges established for employees of the City. Vendor shall not be within protection or coverage of the City’s Worker Compensation insurance, Health Insurance, Liability Insurance, or any other insurance that the City, from time to time, may have in force.

P. LIENS

The Agreement shall not be construed as creating an employer/employee relationship, a partnership, or joint venture. The Vendor’s services shall be those of an independent contractor. The Vendor agrees and understands that the Agreement does not grant any rights or privileges established for employees of the City. Vendor shall not be within protection or coverage of the City’s Worker Compensation insurance, Health Insurance, Liability Insurance, or any other insurance that the City, from time to time, may have in force.

Q. ASSIGNMENT/DELEGATIONS

The Agreement shall be binding upon and endure to the benefit of the City and the Vendor, and their respective successors and assignees, provided, however, that no right or interest in the Agreement shall be assigned and no obligation shall be delegated by the Vendor without the prior written consent of the City.

Any attempted assignment or delegation by the Vendor shall be void unless made in conformity with this Section. The Agreement is not intended to confer any rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there be no third-party beneficiaries to the Agreement.

R. INTERPRETATION

The Agreement is intended by both parties as the final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Agreement. Although the Agreement may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner fair to both parties, reading no provision more strictly against one party of the other. Whenever a term defined by the Uniform Commercial Code (the “UCC”), as enacted by the State of Texas, is used in the Agreement, the UCC definition shall control unless otherwise defined in the Agreement.

S. GOVERNING LAW & VENUE

This Agreement is made under and shall be governed by the laws of the State of Texas, including when applicable, the UCC as adopted in Texas,…