10-C. FY26-ITB-07 Sample Contract.docx

Contract #: {---Contract Number---}

JOHN BEAN SEWER JETTER

Between the City of Charlotte (“City”) and {---Vendor Legal Name---}, (“{---Vendor Reference Name---}”)

This cover sheet (“Cover Sheet”) and each of the attachments listed below (“Attachments”) together comprise a {---Contract Title---} (the “Contract”) entered into as of the Effective Date, between {---Vendor Legal Name---} a {---Vendor State of Incorporation---} {---Vendor Entity Type---} registered to do business in North Carolina and the City of Charlotte, a North Carolina municipal corporation:

Product Purchase Terms and Warranty General Conditions Price Schedule Specifications Confidentiality Terms

Term: This Contract will start on the Effective Date and continue through One Year (the “Initial Term”).

Products. {---Vendor Reference Name---} agrees to provide the products and services described in the Attachments (“Products” and “Services”) under the terms and conditions stated in this Contract.

Compensation. The City will pay for the Products and Services at the prices set forth in the Price Schedule. These prices shall remain firm for the duration of this Contract, unless otherwise stated in the Price Schedule.

Capitalized terms used in this Contract have the meanings assigned in this Contract Email invoices to: cocap@charlottenc.gov

Each invoice shall include the purchase order number and Contract Number and shall be accompanied by a sales tax statement or shall have the sales tax amount shown clearly, along with the invoice total, on the face of the invoice.

By signing below, the parties accept and agree to the terms set forth in this Contract.

Print Name:

Title: Date:

RESERVED

PURCHASE TERMS

Contract #: {---Contract Number---} Vendor #: {---Vendor Number---} City Council Approval Date:

This Attachment is incorporated into the {---Contract Title---} (“Contract”) between the City of Charlotte (“City”) and {---Vendor Legal Name---} (“{---Vendor Reference Name---}”). Capitalized terms not defined in this Attachment will have the meanings stated in the Contract.

1. Products. {---Vendor Reference Name---} agrees to sell to the City the products identified in the Price Schedule Attachment (the “Products”) for the prices stated therein in such quantities as the City may specify from time to time through the issuance of City Purchase Orders (“POs”). {---Vendor Reference Name---} further agrees to provide to the City the warranty and other services set forth in the Attachments (“Services”). This Contract requires no minimum purchase and imposes no financial obligation on the City, absent the City’s issuance of a PO. The City is entitled to purchase the same or similar products from other suppliers.

2. Options and Accessories. The City may in its discretion purchase services and accessories not specified in this Contract, to the extent the City is authorized by law to do so without a formal bid process.

3. Delivery. {---Vendor Reference Name---} agrees to deliver the Products within the time frame stated in the attachments, and acknowledges that time is of the essence to the City. Delivery shall be to the City location specified in the PO. All delivery costs shall be borne by {---Vendor Reference Name---} . {---Vendor Reference Name---}’s Bid shall be deemed a binding commitment of the {---Vendor Reference Name---} to meet the delivery time stated herein unless the Bid specifically takes exception. If such delivery time is not met, the City shall be entitled to terminate the Contract immediately for default and/or exercise any other remedies available at law or in equity.

4. Title / Risk of Loss. Title to and risk of loss of the Product shall pass to the City upon delivery the City location specified in the PO.

5. Warranty. Insert specific warranty information as provided by the Vendor]

6. Transfer of Warranties. Without limiting {---Vendor Reference Name---}’s obligations to provide warranty Services or the Maintenance Services, {---Vendor Reference Name---} hereby assigns and transfers to the City all warranties from any third party suppliers covering the Product, including any embedded software. {---Vendor Reference Name---} will provide copies of such warranties to the City with delivery of the applicable Product. While {---Vendor Reference Name---} shall be entitled to have such warranty work performed by its supplier, {---Vendor Reference Name---} shall remain responsible for providing the Warranty Service.

7. Replacement Products. {---Vendor Reference Name---} shall execute all documents necessary to evidence the City’s title to the Product, including replacement Product provided under the Warranty.

8. Compliance with Laws: All Products and Services delivered under this Contract shall be in compliance with all applicable federal, state and local laws, regulations and ordinances. In performing the Contract, {---Vendor Reference Name---} shall obtain and maintain all licenses and permits, and comply with all federal, state and local laws, regulations and ordinances.

9. Quality. Unless this Contract specifically states otherwise for a particular item, all components used to manufacture or construct any supplies, materials or equipment or Products provided under this Contract shall be: (a) new; (b) the latest model; (c) of the best quality and highest grade workmanship; and (d) in compliance with all applicable federal, state and local laws, regulations and requirements. The term “new”, that the item has been recently produced and has not been previously sold or used.

Whenever this Contract states that a Product or Service shall be in accordance with laws, ordinances, building codes, underwriter’s codes, applicable A.S.T.M. regulations or similar expressions, the requirements of such laws, ordinances, etc., shall be construed to be minimum requirements that are in addition to any other requirements that may be stated in this Contract.

10. Design Requirement. All Products and Services shall meet the Specifications set forth in the Specifications Attachment.

11. Preparation For Delivery

a. Condition and Packaging. All containers/packaging shall be suitable for handling, storage or shipment, without damage to the contents. {---Vendor Reference Name---} shall make shipments using the minimum number of containers consistent with the requirements of safe transit, available mode of transportation routing. {---Vendor Reference Name---} will be responsible for confirming that packing is sufficient to assure that all the materials arrive at the correct destination in an undamaged condition ready for their intended use.

b. Marking. All cartons shall be clearly identified with the City purchase order number and the name of the department making the purchase. Packing lists must be affixed to each carton identifying all contents included in the carton. If more than one carton is shipped, each carton must be numbered and must state the number of that carton in relation to the total number of cartons shipped (i.e. 1 of 4, 2 of 4, etc.).

c. Shipping. {---Vendor Reference Name---} shall ship all orders FOB Destination. No shipping charges allowed.

12. Acceptance: The Products delivered under this Contract shall remain the property of {---Vendor Reference Name---} until the City physically inspects, actually uses and accepts the Products. In the event Products provided to the City do not comply with the Contract, the City shall be entitled to terminate the Contract upon written notice to {---Vendor Reference Name---} and return such Products (and any related goods) to {---Vendor Reference Name---} at {---Vendor Reference Name---} ’s expense. In the event the Services provided under this Contract do not comply with the Contract, the City reserves the right to cancel the Service and rescind any related purchase of products upon written notice to {---Vendor Reference Name---} . The remedies stated in this Section are in addition to and without limitation of any other remedies that the City may have under the Contract, at law or in equity.

13. Embedded Software. {---Vendor Reference Name---} grants to the City the right to use the all software embedded in the Product to the full extent necessary to use the Product in the manner contemplated by this Contract.

14. Documentation: For all Products purchased under this Contract {---Vendor Reference Name---} will provide written or electronic Documentation that is complete and accurate, and sufficient to enable City employees with ordinary skills and experience to utilize such Products for the purpose for which the City is acquiring them.

15. No Liens: All Products shall be delivered and shall remain free and clear of all liens and encumbrances.

16. No Advertisement: No manufacturer or dealer shall advertise on Products delivered to the City without prior approval by the City.

17. Price Adjustments. The prices stated in the Price Schedule shall remain fixed for the Initial Term.

18. City Materials and Data Treated as Confidential. {---Vendor Reference Name---} will treat as confidential information all data and materials provided by or processed for the City in connection with this Contract. {---Vendor Reference Name---} will not reproduce, copy, duplicate, disclose, or in any way treat the data supplied by the City in any manner except that contemplated by this Contract.

19. Work on City’s Premises. Whenever on City premises, {---Vendor Reference Name---} will obey all instructions and City policies applicable to City employees and contractors that {---Vendor Reference Name---} is made aware of. If {---Vendor Reference Name---} causes damage to the City’s equipment or facilities, {---Vendor Reference Name---} will promptly repair or replace such damaged items at {---Vendor Reference Name---}’s expense.

20. Background Checks.

a. BACKGROUND CHECKS REQUIRED PRIOR TO WORK. Prior to starting work under this Contract, {---Vendor Reference Name---} will conduct a background check on each {---Vendor Reference Name---} employee assigned to work under this Contract and will require its subcontractors (if any) to perform a background check on each of their employees assigned to work under this Contract (collectively, the “Background Checks”). Each Background Check must include: (a) the person’s criminal conviction record from the states and counties where the person lives or has lived in the past seven (7) years; and (b) a reference check.

b. NEW CHECKS REQUIRED EACH YEAR AND PRIOR TO NEW PROJECTS. After starting work under this Contract, {---Vendor Reference Name---} will, on an annual basis, perform a Background Check for each {---Vendor Reference Name---} employee assigned to work under this Contract during that year, and will require its subcontractors (if any) to do the same for each of their employees. If {---Vendor Reference Name---} undertakes a new project under this Contract, then prior to commencing performance of the project {---Vendor Reference Name---} will perform a Background Check for each {---Vendor Reference Name---} employee assigned to work on the project, and will require its subcontractors (if any) to do the same for each of their employees.

c. ADDITIONAL INVESTIGATION OF CERTAIN EMPLOYEES. If a person’s duties under this Contract fall within the categories described below, the Background Checks that {---Vendor Reference Name---} will be required to perform (and to have its subcontractors perform) shall also include the following additional investigation:

· If the job duties require driving: A motor vehicle records check.

· If the job duties include responsibility for initiating or affecting financial transactions: A credit history check.

· If job duties include entering a private household or interaction with children: A sexual offender registry check.

d. COMPLIANCE WITH APPLICABLE LAW. {---Vendor Reference Name---} must follow all State and Federal laws when conducting Background Checks, including but not limited to the Fair Credit Reporting Act requirements, and shall require its subcontractors to do the same.

e. DUTY TO REPORT INFORMATION TO CITY. {---Vendor Reference Name---} shall notify the City of any information discovered in the Background Checks that may be of potential concern for any reason.

f. CHECKS CONDUCTED BY CITY. The City may conduct its own background checks on principals of {---Vendor Reference Name---} as the City deems appropriate. By operation of the public records law, background checks conducted by the City are subject to public review upon request.

21. Billing Records. During the term of this Contract and for three (3) years after it terminates, {---Vendor Reference Name---} will keep documentation sufficient to verify the amounts billed to the City. The City has the right to audit {---Vendor Reference Name---} ’s time cards, invoices, reports and other documents relating to amounts charged under this Contract, and will not be required to pay for: (a) any time billed that was excessive in light of the result achieved, or (b) any Products or Services that did not meet the standards and requirements referenced in this Contract. {---Vendor Reference Name---} agrees to make such documents available for inspection and copying by the City in Charlotte, North Carolina between the hours of 9:00 a.m. to 5:00 p.m. Monday through Friday, within ten (10) days after the City requests them. The City shall pay its own expenses relating to such audits, but shall not have to pay any expenses or additional costs of {---Vendor Reference Name---}. However, if non-compliance is found that would have cost the City in excess of $10,000 but for the audit, then {---Vendor Reference Name---} shall be required to reimburse the City for the cost of the audit.

Contract #: {---Contract Number---} Vendor #: {---Vendor Number---} City Council Approval Date:

GENERAL CONDITIONS

This Attachment is incorporated into the {---Contract Title---} (“Contract”) between the City of Charlotte (“City”) and {---Vendor Legal Name---} (“{---Vendor Reference Name---}”). Capitalized terms not defined in this Attachment will have the meanings stated in the Contract.

1. PRIORITY OF ATTACHMENTS. In the event of a conflict among the Attachments, and all other Attachments shall have priority in the order in which they are listed on the Cover Sheet.

2. PAYMENT TERMS. The City will pay undisputed, properly submitted invoices within thirty (30) days after receipt. As a condition of payment, {---Vendor Reference Name---} must invoice the City for Services within sixty (60) days after the Products have been delivered or Services are performed. {---Vendor Reference Name---} WAIVES THE RIGHT TO CHARGE THE CITY FOR ANY PRODUCTS OR SERVICES THAT HAVE NOT BEEN INVOICED WITHIN SIXTY (60) DAYS AFTER SUCH PRODUCTS WERE DELIVERED OR SERVICES WERE RENDERED.

3. TAXES. North Carolina law requires that {---Vendor Reference Name---} collect and remit sales tax on this Contract, even though the purchaser is the City. {---Vendor Reference Name---} shall itemize state and local sales taxes on each invoice as separate charges to the City.

4. TERMINATION FOR CONVENIENCE. For any reason or no reason, the City may terminate this Contract at any time by giving thirty (30) days written notice to {---Vendor Reference Name---}. The City shall only pay for Products and Services rendered through the date of termination, subject to {---Vendor Reference Name---}’s compliance with Section 8 (Obligations on Termination Section). {---Vendor Reference Name---} shall terminate and/or cancel all subcontracts and orders outstanding for such services and products that it is legally entitled to cancel.

5. TERMINATION FOR CAUSE OR DEFAULT. Without limiting any other termination rights set forth in this Contract, either party may terminate this Contract for default if the other party fails to cure a material breach or fails to fulfill its duties, covenants, or obligations as described in the Contract within thirty (30) days after receipt of written notice that identifies the breach and the intent to terminate if not cured. In addition, the City may terminate this Contract for default without a cure period if {---Vendor Reference Name---}:

5.1. makes a misrepresentation or provides misleading information in connection with the solicitation, or any provision contained in this Contract;

5.2. attempts to assign, terminate or cancel this Contract except as prescribed;

5.3. ceases to do business, makes an assignment for the benefit of creditors, admits in writing its inability to pay debts as they become due, files a petition in bankruptcy or has an involuntary bankruptcy petition filed against it (except in connection with a reorganization under which the business of such party is continued and performance of all its obligations under this Contract shall continue), or if a receiver, trustee or liquidator is appointed for it or any substantial part of other party’s assets or properties; or

5.4. acts in a way that creates a risk to safety or causes or is likely to cause the City to incur property damage, fines, or penalties.

6. TERMINATION CONVERSION. If the Contract is terminated by the City for cause but it is later conclusively determined that {---Vendor Reference Name---} has not in fact defaulted, the termination shall be deemed to have been effected for the convenience of the City and {---Vendor Reference Name---} shall be paid through the date of the termination

7. AUTHORITY TO TERMINATE. Authority to terminate this Contract on behalf of the City rests with the City Manager and Deputy City Manager, or any designee of the forgoing having the same level of delegated signature authority as would have been required to execute the Contract.

8. OBLIGATIONS ON TERMINATION. Upon expiration or termination of this Contract, {---Vendor Reference Name---} will promptly provide to the City, at no cost, (i) all data, materials, software, and equipment provided to {---Vendor Reference Name---} by or on behalf of the City; (ii) all deliverables that are completed or in process as of the date of termination; and (iii) a statement of all Services performed through termination, together with such detail and documentation as is otherwise required under this Contract for payment. The expiration or termination of this Contract shall not relieve either party of its obligations regarding “Confidential Information”, as defined in the Section titled Confidentiality Terms. Any termination shall not relieve {---Vendor Reference Name---} of the obligation to pay any fees, taxes or other charges then due to the City. Termination shall not relieve the {---Vendor Reference Name---} from any claim for damages previously accrued or then accruing against {---Vendor Reference Name---}. In the event that the City disputes in good faith an allegation of default by {---Vendor Reference Name---}, notwithstanding anything to the contrary in this Contract, the {---Vendor Reference Name---} agrees that it will not terminate this Contract or suspend or limit the delivery of the Work or any warranties or repossess, disable or render unusable any Software supplied by the {---Vendor Reference Name---}, unless (i) the parties agree in writing, or (ii) an order of a court of competent jurisdiction determines otherwise.

9. NO SUSPENSION. In the event that the City disputes in good faith an allegation of default by {---Vendor Reference Name---}, notwithstanding anything to the contrary in this Contract, {---Vendor Reference Name---} agrees that it will not terminate this Contract or suspend or limit the delivery of Products or Services or any warranties or repossess, disable or render unusable any software supplied by {---Vendor Reference Name---}, unless (i) the parties agree in writing, or (ii) an order of a court of competent jurisdiction determines otherwise.

10. REPRESENTATIONS AND WARRANTIES. {---Vendor Reference Name---} represents, warrants, and covenants that: (a) The Products and Services shall comply with all requirements set forth in this Contract, including but not limited to the Attachments; (b) All work performed by the {---Vendor Reference Name---} and/or its subcontractors pursuant to this Contract shall meet industry accepted standards, and shall be performed in a professional and workmanlike manner by staff with the necessary skills, experience and knowledge; (c) Neither the Products, nor any Services provided by the {---Vendor Reference Name---} under this Contract will infringe or misappropriate any patent, copyright, trademark or trade secret rights of any third party; (d) {---Vendor Reference Name---} and each of its subcontractors have complied and shall comply in all material respects with all applicable federal, state and local laws, regulations and guidelines relating to the performance of this Contract or to the products and services delivered hereunder, including but not limited to E-Verify, and shall obtain all applicable verifications, permits, and licenses; (e) {---Vendor Reference Name---} is a duly organized and validly existing entity of the type set forth in the first paragraph of this Contract, is in good standing under the laws of the state specified in the first paragraph of this Contract, and is registered to do business in North Carolina; (f) {---Vendor Reference Name---} has the requisite power and authority to execute and perform this Contract; and (g) neither the execution nor the performance of this Contract will violate any third party contractual rights. {---Vendor Reference Name---} and each person signing this Contract for {---Vendor Reference Name---} represents and warrants that the execution, delivery, and performance of this Contract have been duly authorized by {---Vendor Reference Name---}. Additional warranties may be set forth in the Attachments.

11. REMEDIES.

11.1. Right to Withhold Payment. The City is entitled to setoff and deduct from any amounts owed to {---Vendor Reference Name---} under this Contract all damages and expenses incurred due to the {---Vendor Reference Name---}’s breach. If {---Vendor Reference Name---} breaches any provision of this Contract, the City may elect to withhold a portion of or all payments due until the breach has been fully cured. The City may obtain performance of the work elsewhere.

11.2. Misappropriation or Infringement Breach. In the event of a violation, misappropriation or infringement of any copyright, trademark, patent, trade secret or other proprietary rights with respect to the work provided under this Contract, in addition to the indemnification obligation under the Contract, {---Vendor Reference Name---} shall (i) procure the right for the City to use the infringing product or service; or (ii) repair or replace the infringing product or service so that it is no longer infringing so long as such modification does not adversely affect the Contract.

11.3. Other Remedies. The election of one remedy does not waive other legal or equitable remedies that a party may pursue. The remedies enumerated herein are in addition to any other remedy available at law or in equity, such as the right to cover.

11.4. Reserved.

12. RIGHT TO COVER. If {---Vendor Reference Name---} fails to comply with any term or condition of the Contract or the {---Vendor Reference Name---}’s response to the ITB, the City may take any of the following actions with or without terminating the Contract, and in addition to and without limiting any other remedies it may have:

12.1. Employ such means as it may deem advisable and appropriate to obtain the applicable Products and/or Services (or reasonable substitutes) from a third party; and

12.2. Recover from {---Vendor Reference Name---} the difference between what the City paid for such Products and/or Services on the open market and the price of such Products and/or Services under the Contract or the {---Vendor Reference Name---}’s response to the ITB.

13. INDEMNIFICATION. To the fullest extent permitted by law, {---Vendor Reference Name---} shall indemnify, defend, and hold harmless the City and the City’ officials, employees, and agents from and against any claims, losses, damages, fines, penalties, royalties, obligations, liabilities, and expenses, including but not limited to reasonable attorneys' fees to the extent that they arise from actual or alleged:

13.1. Breach of contract, negligence or willful misconduct by {---Vendor Reference Name---} or any of {---Vendor Reference Name---}’s agents, employees, or subcontractors, including but not limited to any liability caused by an accident or other occurrence resulting in bodily injury, death, sickness, or disease to any person(s) or damage to or destruction of any property whether real, personal, or intangible, and including data and other intellectual property;

13.2. Violation of any federal, state, or local law, ordinance, rule, regulation, guideline, or standard by {---Vendor Reference Name---} or its employees or subcontractors, or by any service, product, or deliverable provided under this Contract;

13.3. Violation, misappropriation, or infringement of any copyright, trademark, patent, trade secret, or other proprietary rights with respect to any services products or deliverables provided under this Contract (“Infringement Claims”);

If an Infringement Claim occurs, {---Vendor Reference Name---} will either: (i) procure for the City the right to continue using the affected product or service; or (ii) repair or replace the infringing product or service so that it becomes non-infringing, provided that the performance of the overall product(s) and service(s) provided to the City shall not be adversely affected by such replacement or modification. If {---Vendor Reference Name---} is unable to comply with the preceding sentence within thirty days after the City is directed to cease use of a product or service, {---Vendor Reference Name---} shall promptly refund to the City all amounts paid under this Contract.

In any case in which {---Vendor Reference Name---} provides a defense to the City pursuant to this indemnity, the defense will be provided by attorneys reasonably acceptable to the City. The provisions of this Contract regarding indemnity will survive the expiration or termination of this Contract.

If this Contract is funded in full or in part by federal funds, the indemnity rights granted to the City in this Contract shall also extend to the U.S. Government agency that extends such funding, and to the agency’s officers, officials, employees, agents, and independent contractors (excluding {---Vendor Reference Name---}.

14. INSURANCE.

{---Vendor Reference Name---} shall provide and maintain at its expense during the term of this Contract the following program(s) of insurance covering its operations. Such insurance shall be provided by insurer(s) qualified to do business in North Carolina, have a rating at least “A-“ by A.M. Best, and be satisfactory to the City as approved by the City's Risk Management Division. Evidence of such programs satisfactory to the City shall be delivered to the City on or before the effective date of this Contract and prior to commencing any work hereunder. Such policy shall list “City of Charlotte, 600 East Fourth St. Charlotte, NC 28202” as an additional insured for operations or services, rendered under this Contract. City is to be given written notice within thirty (30) days of any termination of any program of insurance.

{---Vendor Reference Name---}‘s insurance shall be primary of any self-funding and/or insurance otherwise carried by the City for all loss or damages arising from {---Vendor Reference Name---}‘s operations under this Contract. If any of the coverage conditions are met by a program of self-insurance, {---Vendor Reference Name---} must submit evidence of the right to self-insure as provided by the State of North Carolina.

{---Vendor Reference Name---} and each of its subcontractors shall and does waive all rights of subrogation against the City and each of its indemnified parties. The City shall be exempt from, and in no way liable or responsible for any sums of money that may represent a deductible or self-insured retention in any insurance policy of {---Vendor Reference Name---} or its subcontractors.

The following insurance is required under this Contract:

(a) Automobile Liability Evidence of current automobile insurance (attach copy of automobile policy declaration page(s)) or submit a current certificate of insurance, showing the vehicles covered and coverage amounts as the appropriate one of the following:

i. If {---Vendor Reference Name---} owns or leases commercial vehicles to provide goods or perform a service under this Contract, Automobile Liability must be provided at a limit of not less than $1,000,000 per occurrence/aggregate, combined single limit, each occurrence, for bodily injury and property damage liability covering all owned, non-owned, and hired vehicles.

ii. If {---Vendor Reference Name---} does not own or lease any vehicles but is using their personal vehicles to perform a service under this Contract, primary Personal Automobile Liability may be provided at limits not less than $100,000 each person, $300,000 each accident and property damage liability of $50,000.

iii. If {---Vendor Reference Name---} does not own or lease any vehicles but has employees using their vehicles to provide goods or perform a service under this Agreement, {---Vendor Reference Name---} must provide hired/non-owned automobile liability coverage at a limit of not less than $1,000,000 per occurrence aggregate.

(b) Commercial General Liability Insurance with a limit not less than $1,000,000 per occurrence/aggregate including coverage for bodily injury, property damage, products and completed operations, personal/advertising injury liability and contractual liability. If the Company will be performing work in the Aircraft Operation Area (“AOA”), all commercial general liability insurance shall increase to $5,000,000 per accident, combined single limit, each occurrence .

(c) Workers’ Compensation Insurance Insurance meeting the statutory requirements of the State of North Carolina and any applicable Federal laws; and, Employers’ Liability - $100,000 per accident limit, $300,000 disease per policy limit, $100,000 disease each employee limit. If {---Vendor Reference Name---} does not employ more than 2 full time employees, {---Vendor Reference Name---} must attest this fact on company letterhead and include such letter in this Contract.

15. NOTICE. Any notice, consent, waiver, authorization, or approval referenced in this Contract must be in writing, and delivered in person, by U.S. mail, overnight courier or electronic mail to the City and {---Vendor Reference Name---} Contacts identified on the Cover Sheet (or as updated in writing from time to time). Notice of breach, default, termination, prevention of performance, delay in performance, modification, extension, or waiver must also be copied to the recipients listed below (the “Official Notice Recipients”), and if sent by electronic mail shall also be simultaneously sent by mail deposited with the U.S. Postal Service or by overnight courier:

{---City Attorney Assigned---}

City Attorney’s Office

600 East Fourth Street

Charlotte, NC 28202

704-336-2254

{---City Atty email---}

{---City Department Head---}

{---City Department---}

{---City Dept. Street Address---}

Charlotte, NC {---City Dept. Zip---}

{---City Dept. Phone---}

{---City Department email---}

{---Vendor Primary Contact Name---}

{---Vendor Legal Name---}

{---Vendor Street1---} {--Vendor Street2--}

{---Vendor City, State, Zip---}

{---Vendor Office Phone---}

{---Vendor Email Address---}

Notice shall be effective upon receipt by the intended recipient. The parties may change their Official Notice Recipients by written notice to the other party.

16. NON-APPROPRIATION OF FUNDS. If City Council does not appropriate the funding needed by the City to make payments under this Contract for a given fiscal year, the City will not be obligated to pay amounts due beyond the end of the last fiscal year for which funds were appropriated. In such event, the City will promptly notify {---Vendor Reference Name---} of the non-appropriation and this Contract will be terminated at the end of the last fiscal year for which funds were appropriated. No act or omission by the City that is attributable to non-appropriation of funds shall constitute a breach of or default under this Contract.

17. REQUIRED BY CITY ORDINANCE: COMMERCIAL NON-DISCRIMINATION. {---Vendor Reference Name---} agrees to comply with the Non-Discrimination Policy set forth in Chapter 2, Article V of the Charlotte City Code, which is available for review at http://library.municode.com/index.aspx?clientId=19970 and incorporated herein by reference. {---Vendor Reference Name---} consents to be bound by the award of any arbitration conducted thereunder.”

18. REQUIRED BY STATE LAW.

19. CHARLOTTE BUSINESS INCLUSION PROGRAM. The City has adopted a CBI Policy, which is posted on the City’s website at https://charlottenc.gov/GS/procurement/cbi/Pages/default.aspx. The parties agree that:

19.1. That Charlotte Business Inclusion Program Policy (“CBI Policy”) and its Administrative Procedures Manual (“CBI Manual”) are posted on the City’s website and available in hard copy form upon request. Both the CBI Policy and CBI Manual comprise the CBI Program.

19.2. The terms of the CBI Program, as revised from time-to-time, are incorporated into this Agreement by reference; and

19.3. A violation of the CBI Program shall constitute a material breach of this Agreement and shall entitle the City to exercise any of the remedies set forth in the CBI Program, including but not limited to liquidated damages.

19.4. The City will incur damages if the {---Vendor Reference Name---} violates the CBI Program, including but not limited to loss of goodwill, detrimental impact on economic development, and diversion of internal staff resources. The parties further acknowledge and agree that the damages the City might reasonably be anticipated to incur as a result of such failures are difficult to ascertain due to their indefiniteness and uncertainty. Accordingly, the {---Vendor Reference Name---} agrees to pay the liquidated damages assessed by the City at the rates set forth in the CBI Program for each specified violation. The {---Vendor Reference Name---} further agrees that for each specified violation the agreed upon liquidated damages are reasonably proximate to the loss the City will incur as a result of such violation.The City will incur costs if {---Vendor Reference Name---} violates the CBI Policy, and such costs are difficult to ascertain due to their indefiniteness and uncertainty. Accordingly, {---Vendor Reference Name---} agrees to pay the City liquidated damages at the rates set forth in the CBI Policy.

19.5. Without limiting any of the other remedies the City has under the CBI Program, the City shall be entitled to withhold periodic payments and final payment due to the {---Vendor Reference Name---} under this Agreement until the City has received in a form satisfactory to the City all claim releases, payment affidavits and other documentation required by the CBI Program. In the event payments are withheld under this provision, the {---Vendor Reference Name---} waives any right to interest that might otherwise be warranted on such withheld amount under North Carolina General Statutes Section 143-134.1.

19.6. The remedies set forth in the CBI Program shall be deemed cumulative and not exclusive and may be exercised successively or concurrently, in addition to any other available remedy.

19.7. The {---Vendor Reference Name---} agrees to participate in any dispute resolution process specified by the City from time-to-time for the resolution of disputes arising from the CBI Program

19.8. Nothing in this Section shall be construed to relieve {---Vendor Reference Name---} from any obligation it may have under N.C. Gen. Stat. 143-134.1 regarding the payment of subcontractors.

20. RESERVED.

21. GENERAL.

21.1. ENTIRE AGREEMENT/AMENDMENT. This Contract is the parties’ entire agreement regarding its subject matter. It supersedes all prior agreements, negotiations, representations, and proposals, written or oral. No change order, amendment, or other modification to this Contract will be valid unless in writing and signed by both {---Vendor Reference Name---} and the City. Clicking “consent” or “agree” electronically when accessing software or a website will not constitute a writing sufficient to bind the City.

21.2. RELATIONSHIP OF THE PARTIES. The parties’ relationship under this Contract is solely that of independent contractors. Nothing contained in this Contract shall be construed to (i) give any party the power to direct or control the day-to-day administrative activities of the other; or (ii) constitute such parties as partners, co-owners or otherwise as participants in a joint venture. Neither party has power or authority to act for, bind, or otherwise create or assume any obligation on behalf of the other.

21.3. MULTIPLE CONTRACT AWARDS. This Contract is not exclusive. The City reserves the right to award multiple contracts for the Products and Services required by this Contract if the City deems multiple Contracts to be in the City’s best interest.

21.4. GOVERNING LAW AND VENUE. North Carolina law will govern all matters relating to this Contract (without regard to North Carolina conflicts of law principles). Any legal actions or proceedings relating to this Contract shall be brought in a state or federal court sitting in Mecklenburg County, North Carolina, other than actions to enforce a judgment.

21.5. ASSIGNMENT/SUBCONTRACTING. {---Vendor Reference Name---} may not assign or subcontract any of its rights or obligations under this Contract without prior written consent of the City. Unauthorized assignments shall be void.

21.6. DELAY / CONSEQUENTIAL DAMAGES. The City will not be liable to {---Vendor Reference Name---}, its agents or any subcontractor for or any delay in performance by the City, or for any consequential, indirect, or special damages or lost profits related to this Contract.

21.7. SEVERABILITY. The invalidity of one or more provisions of this Contract will not affect the validity of the remaining provisions so long as the material purposes of the Contract can be achieved. If any provision of this Contract is held to be unenforceable, then both parties will be relieved of the unenforceable obligations, and this Contract shall be deemed amended by modifying such provision to the extent necessary to make it enforceable while preserving its intent.

21.8. PUBLICITY. {---Vendor Reference Name---} may not identify or reference the City or this Contract in any advertising, sales promotion, or other materials without the City’s prior written consent of the City except: (i) {---Vendor Reference Name---} may list the City as a reference, and (ii) {---Vendor Reference Name---} may identify the City as a customer in presentations to potential customers.

21.9. WAIVER. No waiver of any provision of this Contract shall be effective unless in writing and signed by the party waiving the rights. No delay or omission by either party to exercise any right or remedy it has under this Contract shall impair or be construed as a waiver of such right or remedy. A waiver by either party of any covenant or breach of this Contract shall not constitute or operate as a waiver of any succeeding breach of that covenant or of any other covenant.

21.10. SURVIVAL. Any provision of this Contract that contemplates performance or observance subsequent to termination or expiration of this Contract shall survive termination or expiration and continue in full force and effect for the period so contemplated including, but not limited to, provisions relating to warranties and warranty disclaimers, intellectual property ownership, indemnity, payment terms, and confidentiality.

21.11. TAXES. {---Vendor Reference Name---} will pay all applicable federal, state, and local taxes that may be chargeable against the performance of the Services.

21.12. CONSTRUCTION OF TERMS. Both parties have carefully considered the particular language used in this Contract. The general rule of law that ambiguities are construed against the drafter will not apply.

21.13. DAYS. Unless specifically stated otherwise, all references to days in this Contract refer to calendar days rather than business days. Any references to “business days” shall mean the days that the City’s main office at 600 East Fourth Street, Charlotte, NC, is open for the public to transact business.

21.14. CONFLICTS OF INTEREST. {---Vendor Reference Name---} will not take any action that is or is likely to be perceived as conflict of interest under this Contract. {---Vendor Reference Name---} has not made and will not make any gifts to City employees or officials in connection with this Contract.

21.15. COMPLIANCE WITH LAWS. {---Vendor Reference Name---} and its subcontractors will comply with all local, state, and federal ordinances, statutes, laws, rules, regulations, and standards (“Applicable Law”) in performing this Contract.

{---Vendor Reference Name---} represents and warrants that each deliverable provided under this Contract will comply with all Applicable Law, including without limitation the Americans With Disabilities Act. {---Vendor Reference Name---} acknowledges that, pursuant to the Americans with Disabilities Act of 1990, 42 USC §§ 12101 et seq. (ADA), programs, services and other activities provided by a public entity, whether directly or through {---Vendor Reference Name---}, must be accessible to individuals with disabilities. {---Vendor Reference Name---} hereby warrants that the Products and/or Services it will provide under this Contract comply with the ADA. {---Vendor Reference Name---} agrees to promptly respond to and resolve any complaint regarding the accessibility of its products or services. {---Vendor Reference Name---} further agrees to indemnify and hold harmless the City from any claims arising out of {---Vendor Reference Name---}’s failure to comply with these ADA Requirements. Failure to comply with these requirements by {---Vendor Reference Name---}, its employees, agents, or assigns, will constitute a material breach of this Contract.

PRICE SCHEDULE

This Attachment is attached and incorporated into the {---Contract Title---} (the “Contract") between the City of Charlotte and {---Vendor Legal Name---} (“{---Vendor Reference Name---}”). Capitalized terms not defined in this Attachment shall have the meanings assigned to such terms in the Contract. In the event of a conflict between this Attachment and the terms of the main body of the Contract or any other Attachment or appendix, the terms of this Attachment shall govern.

{---Vendor Reference Name---} shall provide the Products and Services detailed in this Contract at prices set forth below.

SPECIFICATIONS

This Attachment is attached and incorporated into the {---Contract Title---} (the “Contract") between the City of Charlotte and {---Vendor Legal Name---} (“{---Vendor Reference Name---}”). Capitalized terms not defined in this Attachment shall have the meanings assigned to such terms in the Contract. In the event of a conflict between this Attachment and the terms of the main body of the Contract or any other Attachment or appendix, the terms of this Attachment shall govern.

{TO BE ADDED IN FINAL CONTRACT BASED ON ITB SPECIFICATIONS}

CONFIDENTIALITY TERMS

This Attachment is incorporated into the Contract for Services (“Contract”) between the City of Charlotte (“City”) and {---Vendor Legal Name---} (“{---Vendor Reference Name---}”). Capitalized terms not defined in this Attachment will have the meanings stated in the Contract.

1.

[Vendor Name]

CONTRACT NAME 1

1. “CONFIDENTIAL INFORMATION” means any information, in any medium, whether written, oral or electronic, obtained or accessed in connection with the Contract that is not subject to mandatory disclosure as a public record under North Carolina law, including without limitation the following:

0. Trade secrets of the City and its suppliers, contractors and licensors, including software and technical materials.

0. Information marked “Confidential” or “Proprietary”

0. Computer security information of the City, including passwords, codes, configurations, security standards and protocols, and other network, device and system security features

0. Building plans of City-owned buildings and structures

0. Plans to prevent or respond to terrorist activity, including vulnerability and risk assessments, potential targets, specific tactics or specific security or emergency procedures, the disclosure of which would jeopardize the safety of government personnel or the general public or the security of any governmental facility, structure or information storage system(s).

0. Information contained in the City’s personnel files, as defined by N.C. Gen. Stat. 160A-168 (which includes all information gathered by the City about employees, except information which is a matter of public record under North Carolina law)

0. Personal identifying information of individuals, such as social security numbers, bank account numbers, credit and debit card numbers, birth dates, PIN numbers and passwords

0. Billing information of customers maintained in connection with the City providing utility services

0. Attorney / client privileged information disclosed by either party

0. Names and address of individuals who have received a rehabilitation grant to repair their homes.

0. Information relating to criminal investigations conducted by the City, and records of criminal intelligence information compiled by the City The Confidential Information listed in italics above is “Highly Restricted Information,” which subject to additional restrictions as set forth herein. Confidential Information includes information disclosed prior to execution of this Contract as well as information disclosed after execution.

2. RESTRICTIONS.

2.1. {---Vendor Reference Name---} shall not copy, modify, enhance, compile or assemble (or reverse compile or disassemble), or reverse engineer Confidential Information, except as authorized by the City in writing.

2.2. {---Vendor Reference Name---} shall not, directly or indirectly, disclose, divulge, reveal, report or transfer Confidential Information to any third party, other than an agent, subcontractor or vendor of the City or {---Vendor Reference Name---} having a need to know such Confidential Information for purpose of performing work contemplated by written contracts between the City and {---Vendor Reference Name---} , and who has executed a confidentiality agreement containing substantially the same protections set forth herein. Notwithstanding the forgoing, {---Vendor Reference Name---} shall not directly or indirectly, disclose, divulge, reveal, report or transfer Highly Restricted of the other to any third party without the City’s prior written consent

2.3. {---Vendor Reference Name---} shall not use any Confidential Information for its own benefit or for the benefit of a third party, except to the extent such use is authorized in writing by the City, or is for the purpose for which such Confidential Information is being disclosed.

2.4. {---Vendor Reference Name---} shall not remove any proprietary legends or notices, including copyright notices, appearing on or in the Confidential Information.

2.5. {---Vendor Reference Name---} shall use reasonable efforts to prohibit its employees, vendors, agents and subcontractors from using or disclosing the Confidential Information in a manner not permitted by this Contract.

2.6. If any demand is made in litigation, arbitration or any other proceeding for disclosure of Confidential Information, {---Vendor Reference Name---} shall immediately notify the City, and will reasonably assist the City’s effort to seek a protective order or other appropriate relief to prevent or restrict any disclosure of Confidential Information.

2.7. {---Vendor Reference Name---} will restrict employee access to the Confidential Information to those employees who need to know in order to: (a) fulfill {---Vendor Reference Name---}’s contractual obligations to the City, or (b) resolve a dispute with the City. {---Vendor Reference Name---} will have each employee who will have access to the Confidential Information sign a confidentiality agreement including protections substantially identical to those set forth herein.

2.8. {---Vendor…