CONTRACT

Between the City of Tallahassee ("City”) and (insert Contractor’s name) ("Contractor")

CONTRACT NO. (insert contract number)

SUBJECT OF CONTRACT: Hopkins and Sub 12 RICE SCR, ROM, and OXI Catalysts

CONTRACT AMOUNT:

Exact Amount: $ Not To Exceed (NTE):

Commodity based upon Line-Item Price Exact Amount: $ (Subject to allowed adjustments as specified elsewhere in the contract.)

Estimate Only (EST):

LINE ITEMS AWARDED: All Item(s):

CONTRACT TERM:

The performance period ("Term") of this contract for SCR, ROM and OXI Catalysts (the “Contract”) will be as follows: The basic Contract Term is _Three_ years, with one optional two_ year extension period for a total of Five years.

The term of the Contract shall begin on the Contract Execution Date as evidenced by signature of the parties in the Contract Execution section below.

CONTACT PERSONNEL

Contract Administrator: Ron MAyo Telephone Number: 850-264-9407 Email: Ron.mayo@talgov.com Technical Representative: Mike Muhly Telephone Number: (850) 891-5811 Email: Mike.Muhly@talgov.com

FOR CITY OF TALLAHASSEE INTERNAL USE ONLY

Type of Contract (Check One) Firm Fixed Price Fixed Price w/Economic Price Adjustment Type of Quantity Delivery (Check One) Definite Quantity Indefinite Quantity Requirements Item Type Commodities Services Type of Contract Award (Check One) Single Award Multiple Award

Approval Level: ACM Commission Approval Date: TBD

REV: 1/2023 kh

TABLE OF CONTENTS

The Contract incorporates the following documents and sections in full text, unless stated elsewhere in the Contract as incorporated by reference.

IFB-026-26-RM, including all addenda.

CERTIFICATION OF CONTRACTOR

I, the undersigned representative of the Contractor, hereby certify and represent as follows --

1. That I am duly authorized by the Contractor to execute the Contract binding the Contractor to the City; and

2. That the Contractor will satisfactorily perform all work under that Contract in strict accordance with its terms and conditions.

CONTRACT EXECUTION

IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed by their duly authorized representatives below.

City of Tallahassee

By:

(Signature) Veronica McCrackin Director for Procurement Services Contractor: (Contractor’s Name)

By:

(Signature) (Print/Type Name, Title, and Date)

Attest

By:

(Signature) James O. Cooke, IV City Treasurer-Clerk

Execution Date Approved As To Form:

By:

(Signature) Amy M. Toman City Attorney

SECTION 1 - PRICE SCHEDULE

CONTRACTOR NAME:

1.1 THE CONTRACTOR AGREES --

To furnish the supplies and/or services, awarded in whole or in part by the City, at the price set for each item offered by the Contractor, in accordance with the terms and conditions of the Contract.

1.2 PRICE RELATED FACTORS

1. The Contractor’s cost shall be inclusive of all labor, supervision, materials, supplies, equipment, tools, transportation, handling, assessments, other fees, and taxes, etc.

2. Delivery shall be "F.O.B. Destination". Unless freight/handling fees are listed below as a separate line item, the price set for each item shall include all freight/handling fees, and

3. The Contractor is not exempt from the Florida Sales Tax on materials or services.

CERTIFICATION OF INDEPENDENT PRICE DETERMINATION

The Contractor certifies that—

1. The prices set forth in the price schedule have been arrived at independently, without, for the purpose of restricting competition, any consultation, communication, or agreement with any other Contractor or competitor.

(UPLOAD ON BONFIRE PRICE SHEET ATTACHMENT A)

THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.

SECTION 2 – CONTRACTOR’S CONTACT INFORMATION

OFFICIAL COMPANY INFORMATION AS REGISTERED (Type/Print)

COMPANY NAME: MAIL ADDRESS:

TELEPHONE NO:

(Toll-Free Preferred)

EMAIL ADDRESS: WEBSITE URL:

(City) (State) (Zip Code+4) VOICE: , EXTENSION:

OTHER: ; FAX:

COMPANY CONTACT FOR CONTRACT MANAGEMENT (Type/Print)

PERSON NAME:

TELEPHONE NO:

(Toll-Free Preferred)

EMAIL ADDRESS:

VOICE: , EXTENSION: OTHER: ; FAX:

PAYMENT REMITTANCE ADDRESS (Type/Print) (if same as 2.8, enter “SAME 2.8”)

NAME:

MAIL ADDRESS:

TELEPHONE NO:

(Toll-Free Preferred)

EMAIL ADDRESS:

(City) (State) (Zip Code+4) VOICE: , EXTENSION:

OTHER: ; FAX:

CONTACT FOR INVOICE INQUIRIES

NAME:

TELEPHONE NO:

(Toll-Free Preferred)

EMAIL ADDRESS:

VOICE: , EXTENSION: OTHER: ; FAX:

WHERE TO SEND PURCHASE ORDER (IF APPLICABLE)

COMPANY NAME: MAIL ADDRESS:

(City) (State) (Zip Code+4)

THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.

SECTION 3 – STATEMENT OF WORK/SPECIFICATIONS

3.1 Scope

The city of Tallahassee owns and operates seven Wartsila engines (five 50SG engines and two 34SG engines) that use emissions control catalysts. The catalysts for the 50SG engines are in a HUG EM400 housing, while the catalysts for the 34SG engines are in an HUG EM196 housing. Over time, catalysts degrade and will need to be replaced. This bid is for new catalysts to replace the existing catalysts in the installed Wartsila emissions control systems. The specific types of catalysts being sought are listed below.

3.1 Catalyst Types

The three different catalysts used for emissions control of the Wartsila engines are described below.

a. SCR Used for the catalytic reduction of nitrogen oxides. HUG RFV 1300.103.C5.00.S150.450.000 or equivalent.

b. ROM Used for the catalytic reduction of nitrogen oxides while simultaneously suppressing higher ammonia concentrations.

HUG ROM 1300.103.C3.D1.S150.045.255 or equivalent.

c. OXI Used for the catalytic oxidation of CO, VOCs and Formaldehyde. HUG OCT 1500.141.A7.00.S150.150.000 or equivalent.

3.2 Design Reference Parameters

a. All catalysts shall be able to operate in the design conditions below

b. The fuel for all seven engines is pipeline-quality natural gas; typical constituents of the gas are shown below.

c. The backpressure limit for catalyst is 60 mbar.

d. SCR modules shall be compatible with original design as to avoid excess backpressure while achieving maximum conversion efficiency. Refer to Attachment C.

e. ROM modules shall be compatible with original design as to avoid excess backpressure while achieving maximum conversion efficiency. Refer to Attachment C.

f. OXI modules shall be compatible with original design as to avoid excess backpressure while achieving maximum conversion efficiency. Refer to Attachment C.

The basic Contract Term is _Three_ years, with one optional two_ year extension period for a total of Five years.

SECTION 4 – CONTRACT MANAGEMENT

4.1 CITY REPRESENTATIVES

A. CONTRACT ADMINISTRATOR

The City’s Contract Administrator is responsible for acting on behalf of the Manager of Procurement Services Office (PSO), as delegated. The Contract Administrator’s Contract duties include, but are not limited to, the following:

a. Acting as the liaison between the City and the Contractor

b. Maintaining Contract files; processing Contract amendments, cancellations, and terminations

c. Resolving conflicts between the City and the Contractor when such conflicts cannot be resolved by the Technical Representative, interpreting, and enforcing Contract requirements

B. TECHNICAL REPRESENTATIVE(S)

The City’s Technical Representative’s duties include, but are not limited to, the following:

a. Serving as liaison between the PSO and the Contractor on technical issues

b. Placing orders against the Contract, if applicable

c. Conducting evaluations and reporting on the Contractor’s performance

d. Reviewing and recommending action on the Contractor payment requests

e. Alerting the Contract Administrator of developing and unresolved issues

4.2 CONTRACTOR’S CONTRACT MANAGER

The Contractor’s Contract Manager for the Contract is identified in section 2, Contractor’s Contact Information.

4.3 CHANGES TO CONTRACT MANAGERS AND REPRESENTATIVES

If there are changes in Contract administrators, managers, or representatives by either party during the term of the contract, notice of the new personnel’s name, address, telephone numbers, and any other contact information, will be promptly rendered in writing to the other Party. Such changes will be given to the City's Contract Administrator and the Contractor's Contract Manager.

SECTION 5 – GENERAL TERMS AND CONDITIONS

5.1 INSURANCE REQUIREMENTS

a. Prior to commencing work, the Contractor shall procure and maintain at the Contractor's own cost and expense throughout the Term of the Contract the following types and limits of insurance coverage in relation to the performance of work or provision of services hereunder by the Contractor, its agents, representatives, employees, or subcontractors:

(1) Commercial General/Umbrella Liability Insurance - $2,000,000 limit per occurrence for property damage and bodily injury. The insurance shall include coverage for the following:

· Premise/Operations

· Explosion, Collapse and Underground Property Damage Hazard (only when applicable to the project)

· Products/Completed Operations

· Contractual

· Independent Contractors

· Broad Form Property Damage

· Personal Injury

(2) Business Automobile/Umbrella Liability Insurance- $1,000,000 limit per accident for property damage and personal injury.

· Owned/Leased Autos

· Non-owned Autos

· Hired Autos

(3) Workers’ Compensation and Employers’/Umbrella Liability Insurance -- Workers’ Compensation coverage with benefits and monetary limits as set forth in Chapter 440, Florida Statutes. This policy shall include Employers’/Umbrella Liability coverage for $1,000,000 per accident. Workers’ Compensation coverage is required as a condition of performing work or services for the City whether or not the Contractor is otherwise required by law to provide such coverage.

b. Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City of Tallahassee, members of its City Commission, boards, commissions and committees, officers, agents, employees, and volunteers (“City Insureds”); or the Contractor shall procure a bond guaranteeing payment of losses, related investigation, claim administration and defense expenses.

c. Other Insurance Provisions

(1) Commercial General Liability and Automobile Liability Coverage

(i) The City Insureds are to be covered as additional insured as respects: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, leased, or used by the Contractor or premises on which the Contractor is performing services on behalf of the City. The coverage shall contain no special limitations on the scope of protection afforded to the City Insureds.

(ii) The Contractor's insurance coverage shall be primary insurance as respects the City Insureds. Any other insurance or self-insurance maintained by or on behalf of the City Insureds shall be excess of the Contractor's insurance and shall not contribute with it.

(iii) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City Insureds.

(iv) Coverage shall state that the Contractor's insurance shall apply separately to each insured against whom a claim is made, or suit is brought, except with respect to the limits of the insurer's liability.

(2) Workers' Compensation and Employers’ Liability and Property Coverage The insurer shall agree to waive all rights of subrogation against the City Insureds for losses arising from activities and operations of the Contractor in the performance of services under the Contract.

(3) All Coverage

(i) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) days prior written notice has been given to the City Contract Administrator.

(ii) If the Contractor, for any reason, fails to maintain insurance coverage which is required pursuant to the Contract, the same shall be deemed a material breach of Contract. The City, at its sole option, may terminate the Contract and obtain damages from the Contractor resulting from said breach.

(iii) Alternatively, the City may purchase such required insurance coverage (but has no special obligation to do so) and further notice to the Contractor, the City may deduct any premium costs advanced by the City for such insurance from sums due to the Contractor.

d. Acceptability of Insurers Insurance is to be placed with Florida admitted insurers rated B+X or better by A.M. Best's rating service.

e. Verification of Coverage The Contractor is reminded that regardless of what the State of Florida requirements for insurance are (including the exemption for Workers Compensation Insurance), the insurance specified herein is the minimum requirement for the Contract. The Contractor shall furnish the City with certificates of insurance and with original endorsements providing evidence of coverage required by this Section. The certificates and endorsements for each policy must be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements must be submitted and approved by the City before work commences. Certificates of Insurance must be annotated with the Contract number.

f. Subcontractors The Contractor shall include each of its subcontractors as insured under the policies of insurance required herein.

5.2 PAYMENTS

a. The City shall pay the Contractor, either by government credit card or upon the submission of proper invoices or Contract pay requests, the prices stipulated in the Contract, less any deductions provided in the Contract.

b. It is the policy of the City to fully implement the provisions of the “Florida Prompt Payment Act". For more information, please refer to Chapter 218, Part VII, Florida Statutes.

5.3 SUBMITTAL OF PROPER INVOICES

a. The Contractor shall submit an invoice at the end of every month [or other specified interval], in which services were rendered [or in which supplies were delivered] and accepted, by one of the following methods:

(1) E-mail (electronic PDF image of invoice): invoices@talgov.com.

(2) Mail: Accounts Payable, 300 S. Adams St., Mailbox A-28, Tallahassee, FL 32301-1731; or

(3) Hand Delivery: Accounts Payable, City Hall, 300 S. Adams St, Tallahassee, FL NOTE 1: At the request of the user-department, a copy of the invoice may be submitted to the City’s Project Manager or designee at an address to be supplied.

NOTE 2: If payment has been made utilizing a City Purchase/Credit Card the invoice must be sent to the attention of and to the address for the individual who made the purchase. The invoice should indicate that payment has been with a Purchase Card.

b. Accounts Payable Contact Telephone: (850) 891-8280; Fax: (850) 891-8788

c. A proper invoice must include all the following:

(1) Name and address of the Contractor;

(2) Invoice date

(3) Invoice number (the Contractor is encouraged to assign an identification number)

(4) Contract number, if applicable

(5) City's Purchase Order number, if applicable

(6) Contract line-item number, if applicable

(7) Descriptions, quantities, units of measure, unit prices, and extended price of each item

(8) Terms of any prompt payment discounts offered

(9) Name and address of official to whom payment is to be sent

(10) Federal Identification Number or Social Security Number (whichever applies)

5.4 INDEPENDENT CONTRACTOR STATUS

The parties to the Contract are independent contractors, and none of the provisions of the Contract shall be interpreted or deemed to create any relationship between such parties other than that of independent contractors. Nothing contained in the Contract shall be construed to create a relationship of employer and employee, master and servant, principal, and agent, or coventurers between the City and the Contractor, between the City and any employee of the Contractor, or between the Contractor and any employee of the City. The City shall have no right to control or direct the details, manner, or means by which the Contractor performs the services or other requirements of the Contract except to require compliance with requirements and standards stated in the Contract. The Contractor, similarly, shall have no control over or management authority with respect to the City or its operations.

5.5 INDEMNIFICATION

a. The Contractor shall indemnify and hold harmless the City, and its officials, officers, and employees, from and against all claims for infringement of any United States Patent and all other claims, damages, losses, and expenses (including without limitation costs of defending the same and attorney's fees) arising out of or resulting from the performance of the work, furnishing of services, or furnishing of materials, goods, or equipment (including but not limited to claims regarding defects in materials, goods, or equipment) which is caused in whole or in part by any breach of contract, act, or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable.

b. In any and all claims against the City, or any of its agents or employees by any employee of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligation under this clause shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any subcontractor under any Workers’ Compensation Act, Disability Benefit Act, or other Employee Benefit Act.

c. To the extent permitted by law, the total liability of the Contractor for all claims arising out of or relating to the performance or breach of this Agreement or use of any Goods or Services shall not exceed the annual Contract value of this Agreement. Contractor shall not be liable for any advice, instruction, assistance, or any services that are not required under this Agreement or for which Contractor does not charge The City. In no event will either party be liable to the other for lost profits or revenues, cost of capital or replacement or increased operating costs, lost or decreased production, claims of The City’s customers for such damages or any similar or comparable damages, or for any incidental, special, consequential or indirect damages of any type or kind, irrespective of whether arising from actual or alleged breach of warranty, indemnification, product liability or strict liability, or any other legal theory. If The City is supplying Contractor’s Goods or Services to a third party, The City shall require the third party to agree to be bound by this clause. If the City does not obtain this agreement for Contractor’s benefit for any reason, the City shall indemnify and hold Contractor harmless from all liability arising out of claims made by the third party in excess of the limitations and exclusion of this clause.

5.6 EVALUATION OF SERVICES--FIXED-PRICE

a. Definition: "Services," as used in this clause, includes services performed, workmanship, and material furnished or utilized in the performance of services.

b. The Contractor shall provide and maintain a quality control program acceptable to the City covering the good and services under the Contract. If requested, complete records of all quality control work performed by the Contractor shall be maintained and made available to the City during Contract performance and for as long afterwards as the Contract requires.

c. The City has the right to evaluate all goods and services provided under the Contract, at all times and, to the extent practicable, at places of work during the term of the Contract. The City shall perform evaluations in a manner that will not unduly delay the work.

d. Evaluations conducted by the City shall be recorded on a standard City Vendor Performance Evaluation (VPE) form or another appropriate document. Completed VPE forms shall be processed as follows:

(1) The City employee conducting the evaluation shall send the original VPE form to the Contract Administrator.

(2) The Contract Administrator shall forward a copy of the completed VPE form to the Contractor.

(3) The Contractor shall furnish a written reply to the Contract Administrator within ten (10) workdays, in response to any VPE form which contains work or service rated "unsatisfactory." At a minimum, the Contractor's written reply must explain the action the Contractor has taken to resolve the unsatisfactory findings and to prevent future unsatisfactory performance. The Contractor's written reply to a VPE form shall also be maintained with the Contract filed at the PSO.

e. If any of the goods or services do not conform with Contract requirements, the City may require the Contractor to provide the goods and perform the services again in conformity with Contract requirements, at no increase in the Contract amount. When the defects in goods or services cannot be Corrected by reperformance, the City may--

(1) Require the Contractor to take necessary action to ensure that future performance conforms to Contract requirements; and

(2) Reduce the Contract price to reflect the reduced value of the goods and services performed.

f. If the Contractor fails to promptly provide the goods or perform the services again or to take the necessary action to ensure future performance in conformity with Contract requirements, the City may—

(1) By contract or otherwise, acquire goods or services elsewhere and charge the Contractor any cost incurred by the City directly related to the performance of such service; or

(2) Terminate the Contract for default.

g. All completed VPE forms and other evaluation correspondence, shall become public record and may be used in evaluations for award of future contracts.

5.7 CHANGES--FIXED-PRICE

a. The Contract Administrator may at any time, by written order, and without notice to the sureties, if any, make changes to the Contract within the general scope of the Contract.

b. If any such change causes an increase or decrease in the cost of, or the time required for performance of, any part of the work under the Contract, whether changed by the order, the Contract Administrator shall make an equitable adjustment in the Contract price or the delivery schedule, or both, and shall modify the Contract.

c. The Contractor must assert its right to an adjustment under this clause within thirty (30) days from the date of receipt of the written order. However, if the Contract Administrator decides that the facts justify it, the Contract Administrator may receive and act upon a proposal submitted before final payment of the Contract.

d. If the Contractor's proposal includes the cost of property made obsolete or excess by the change, the Contract Administrator shall have the right to prescribe the manner of the disposition of the property.

e. Failure of the parties to mutually agree to any adjustment shall be resolved under the Disputes clause. However, nothing in this clause shall excuse the Contractor from proceeding with the Contract as changed.

5.8 DISPUTES

a. All disputes arising under or relating to the Contract shall be resolved under this clause.

b. "Claim," as used in this section 5.8, means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of Contract terms, or other relief arising under or relating to the Contract. A voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a Claim under this clause; however, such request may become the basis for a Claim if it is disputed either as to liability or amount or is not acted upon in a reasonable time.

c. A Claim by the Contractor shall be made in writing and, unless otherwise stated in the Contract, submitted within one (1) year after accrual of the Claim to the Contract Administrator for a written decision. A Claim by the City against the Contractor shall be subject to a written decision by the Procurement Services Office.

(1) The certification requirement does not apply to issues in controversy that have not been submitted as all or part of a Claim.

(2) The certification shall state as follows: "I certify that the Claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested, if applicable, accurately reflects the Contract adjustment for which the Contractor believes the City is liable; and that I am duly authorized to certify the Claim on behalf of the Contractor."

(3) The certification may be executed by any person duly authorized to bind the Contractor with respect to the Claim.

d. For Contractor-certified Claims, the Procurement Services Office must, within 60 days, decide the Claim or notify the Contractor of the date by which the decision will be made.

e. The decision of the Procurement Services Office shall be final.

f. If the Claim by the Contractor is submitted to the Procurement Services Office or a claim by the City is presented to the Contractor, the parties, by mutual consent, may agree to use alternative dispute resolution. If the Contractor refuses an offer for alternative dispute resolution, the Contractor shall inform the Procurement Services Office in writing, of the Contractor's specific reasons for rejecting the request.

g. The City shall pay interest at the rate prescribed by Section 218.74(4), Florida Statutes, on the amount found due and unpaid from --

(1) the date that the Procurement Services Office receives the Claim (certified, if required); or

(2) the date that payment otherwise would be due, if that date is later, until the date of payment.

h. The Contractor shall proceed diligently with performance of the Contract, pending final resolution of any request for relief, Claim, appeal, or action arising under or relating to the Contract, and comply with any decision of the Procurement Services Office.

5.9 NOTIFICATION OF LABOR DISPUTES

If the Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of the Contract, the Contractor shall immediately give notice, including all relevant information, to the Contract Administrator.

5.10 NOTIFICATION OF OWNERSHIP CHANGES

a. The Contractor shall notify the Procurement Services Office within thirty (30) calendar days, in writing, when the Contractor becomes aware that a change in its ownership has occurred or is certain to occur.

b. The Procurement Services Office reserves the right to request accounting records from the Contractor, whenever the Procurement Services Office determines that the ownership changes may affect any cost and pricing data required by the Contract, if applicable. For this purpose, the Contractor shall:

(1) Maintain current, accurate, and complete inventory records of assets and its costs;

(2) Provide the Procurement Services Office ready access to the records upon request;

(3) Ensure that all individual and grouped assets, their capitalized values, accumulated depreciation, or amortization, and remaining useful lives are identified accurately before and after each of the Contractor's ownership changes; and

(4) Retain and continue to maintain depreciation and amortization schedules based on the asset records maintained before each Contractor ownership change.

5.11 NOTIFICATION OF BANKRUPTCY

In the event the Contractor enters proceedings relating to bankruptcy, whether voluntary or involuntary, the Contractor agrees to furnish, by certified mail or electronic commerce method authorized by the Contract, written notification of the bankruptcy to the Contract Administrator. This notification shall be furnished within five (5) days of the initiation of the proceedings relating to bankruptcy filing. This notification shall include the date on which the bankruptcy petition was filed, the identity of the court in which the bankruptcy petition was filed, and a listing of City contract numbers for all City contracts against which final payment has not been made. This obligation remains in effect until final payment under the Contract has been made.

5.12 PROTECTION OF CITY BUILDINGS, EQUIPMENT, AND VEGETATION

The Contractor shall use reasonable care to avoid damaging existing buildings, equipment, and vegetation on City property. If the Contractor's failure to use reasonable care causes damage to any City property, the Contractor shall replace or repair the damage at no expense to the City, as the Contract Administrator directs. If the Contractor fails or refuses to make such repair or replacement in accordance with such directions, the City may make or contract for replacement or repair, and, in such event, the Contractor shall be liable to the City for all related costs, which may be deducted from the Contract price, and any amounts otherwise owed the Contractor, by the Procurement Services Office. Such failure by the Contractor shall also be deemed a default and shall constitute grounds for termination of the Contract, at the option of the City.

5.13 WARRANTIES

This section 5.13 will survive the expiration or termination of the Contract.

5.13.1 WARRANTIES OF SERVICES

a. Definitions.

"Acceptance," as used in this clause, means the act of an authorized representative of the City by which the City assumes for itself, or as an agent of another, ownership of existing and identified supplies, or approves specific services, as partial or complete performance of the Contract.

"Correct or Correction," as used in the Contract, means the elimination of a defect.

b. Notwithstanding evaluation and Acceptance by the Technical Representative or any provision concerning the conclusiveness thereof, the Contractor warrants that all services performed under the Contract will, at the time of Acceptance, be free from defects in workmanship and conform to the requirements of the Contract. The Contract Administrator shall give written notice of any defect or nonconformance to the Contractor within thirty (30) days from the date of Acceptance by the City. This notice shall state either --

(1) That the Contractor shall Correct or re-perform any defective or nonconforming services;

or

(2) That the City does not require Correction or re-performance.

c. If the Contractor is required to Correct or re-perform, it shall be at no cost to the City, and any services Corrected or re-performed by the Contractor shall be subject to this clause to the same extent as work initially performed. If the Contractor fails or refuses to Correct or re-perform, the City may, by contract or otherwise, Correct or replace with similar services and charge to the Contractor the cost occasioned to the City thereby, or make an equitable adjustment in the Contract price.

d. If the City does not require Correction or re-performance, the City shall make an equitable adjustment in the Contract price.

5.13.2 WARRANTIES OF COMMODITIES

a. PRODUCT REQUIREMENTS/SPECIFICATIONS – Items furnished shall be standard products of the manufacturer or their suppliers and, shall be new, unused, clean, and free from any defects or features affecting appearance, serviceability, or the safety of the user in normal intended use, unless otherwise stated in the specifications. Any deviation from specifications indicated herein must be clearly pointed out; otherwise, it will be considered that items offered are in strict compliance with these specifications, and the Contractor will be held responsible for any nonconformity. Deviations must be explained in detail on separate attached sheet(s).

b. REPLACEMENT/RESTOCKING - A warranty is required on all items purchased against defective materials, workmanship, and failure to perform in accordance with required industry performance criteria and warranty, for a period of not less than ninety (90) days from the date of acceptance by the City. Delivery of substitute commodities requires prior written approval from the ordering location.

c. REPLACEMENT/RESTOCKING - Replacement of all materials found defective within the warranty period shall be made without cost to the City, including transportation if applicable. All fees associated with restocking cancelled orders shall be the responsibility of the Contractor.

5.14 TERMINATION

a. If the Contractor fails to fulfill any of its obligations under the Contract through no fault of the City, such failure shall be considered a default and shall entitle, but not obligate, the City to suspend performance under or to terminate the Contract, in whole or in part, at the City's discretion, if the Contractor fails to cure such default within thirty (30) days after receipt of a written notice thereof from the City. Furthermore, the City shall have the right to terminate the Contract, in whole or in part, without the Contractor being in default thereunder. Termination shall be affected by delivery of a written notice to the Contractor specifying whether termination is for the default of the Contractor or for the City's convenience, the extent to which services under the Contract are to be terminated, and the date upon which such termination becomes effective. After receipt of such written notice, and except as otherwise directed in writing by the City, the Contractor shall promptly stop work under the Contract on the date and to the extent specified in the notice, terminate all subcontracts to the extent that they relate to the performance of services terminated by the notice, and complete performance of such services as shall not have been terminated by the notice.

b. In the event of termination for convenience, the City shall pay the Contractor (i) the full amount due for goods satisfactorily delivered and/or services satisfactorily rendered, (ii) approved costs and expenses incurred which remain unpaid at the time of such termination, and (iii) such other costs of termination, if any, as may be mutually agreed by the parties. The City shall have the right to set off against amounts otherwise owed the Contractor all amounts owed by the Contractor to the City under the Contract or otherwise.

5.15 AVAILABILITY OF FUNDS FOR FUTURE FISCAL YEARS

Funds may not be available for performance under the Contract beyond September 30 of each year included in the Contract. The City’s obligation for performance of the Contract beyond that date is contingent upon the availability of appropriated funds from which payment for Contract purposes can be made. No legal liability on the part of the City for any payment may arise for performance under the Contract beyond the above referenced date, until funds are made available before commencing work or making deliveries to ensure funds are appropriated for the Contract.

5.16 EXTENSIONS OF CONTRACT TERM (BILATERAL)

The Contract has the option for one two-year extension period mutually agreed to by the Parties. Such extension must be agreed to by the parties, in writing, no later than thirty (30) calendar days prior to the end of the initial Contract term.

5.17 CONTINUED PERFORMANCE OF THE CONTRACT (not exceed six (6) months) After completion of the initial Contract term or any extensions thereof, the City may require continued performance of any services within the limits and at the rates specified in the Contract for a limited amount of time, not to exceed six months. This continued performance provision may be exercised monthly or for the full six months. The City may exercise this continued performance provision by written notice to the Contractor at least thirty (30) calendar days before the initial Contract Term or extension(s) period expires.

5.18 REQUIREMENTS

a. This is a requirement contract for the supplies or services specified and effective for the stated Term. The quantities of supplies or services specified are estimates only. Except as the Contract may otherwise provide, if the City’s requirements do not result in placement of orders in the quantities described as "estimated'' or "maximum," that fact shall not constitute the basis for an equitable price adjustment.

b. Delivery or performance shall be made only as authorized by orders issued in accordance with the Ordering clause. Subject to any limitations in the Order Limitations and Requirements clause or elsewhere in the Contract, the Contractor shall furnish to the City all supplies or services specified in the Contract and called for by orders issued in accordance with the Ordering clause. The City may issue orders requiring delivery to multiple destinations or performance at multiple locations.

c. The City is not required to purchase from the Contractor requirements in excess of any limit on total orders under the Contract.

d. If the City requires delivery of any quantity of an item before the earliest date that delivery must be made under the Contract, and if the Contractor will not accept an order providing for the accelerated delivery, the City may acquire the urgently required goods or services from another source.

e. Any order issued during the Term of the Contract and not completed prior to the end of such Term shall be completed by the Contractor within the time specified in the order. The Contract shall govern the Contractor's and City’s rights and obligations with respect to that order to the same extent as if the order were completed during the Term.

5.19 ECONOMIC PRICE ADJUSTMENT

This contract is / is not subject to Economic Price adjustments.

The Contract is subject to Economic Price adjustments unit prices. A pricing adjustment will be considered after year one of the contract. It is the Contractor’s responsibility to request any pricing adjustment under this provision. The Contractor’s adjustment request should not be in excess of the relevant pricing index change per the Consumer Price Index or Producer Price Index as published by the Bureau of Labor Statistics of the U.S. Department of Labor – http://www.bls.gov/data/. The Contractor may submit price increase letters from the manufacturer in conjunction with the pricing adjustment request. For any adjustment to commence on the first day of any exercised option period, the Contractor’s request for adjustment should be submitted ninety (90) days prior to expiration of the then current Contract term or at time of renewal request from the City. The maximum allowable increase shall not exceed 5%, unless authorized by the Procurement Director. All price adjustments must be accepted by the Procurement Director and shall be memorialized by written amendment to the Contract. If no adjustment request is received from the Contractor, the City will assume the Contractor has agreed that the optional term may be exercised without pricing adjustment. Any adjustment request received after the commencement of a new option period may not be considered. The unit price rates reflected in the Contract executed with the successful vendor shall be adjusted upward or downward based on percentage increases or decreases in the following indices and calculated in accordance with the following formula:

CALCULATION OF ECONOMIC PRICE ADJUSTMENT

The Economic Price Adjustment (“EPA”) will be calculated in accordance with the following formula:

EPA = 1 + ((CYCI - PYCI) / PYCI)

Where, “Current Year Consumer Index” (“CYCI”) means the most recent value for the following index available on the fourth anniversary of the Effective Date: “Consumer Price Index - All Urban Consumers All Items Not Seasonally Adjusted CUUR0000SA0”.

“Prior Year Consumer Index” (“PYCI”) means the most recently published value for the following index available on the third anniversary of the Effective Date: “Consumer Price Index - All Urban Consumers All Items Not Seasonally Adjusted CUUR0000SA0”.

The EPA will be calculated to the third decimal place.

Adjusted Price for each Item = unit price (per Proposal) × EPA.

5.20 ORDERING

a. Any items to be furnished under the Contract shall be ordered by the issuance of purchase orders by City departments or activities, as specified in the Contract. Such purchase orders may be issued at any time during the Term, extension, or continued performance period of the Contract or the Continued Performance period for the Contract.

b. All orders are subject to the terms and conditions of the Contract. In case of a conflict between an order and the Contract, the Contract shall control.

c. Orders may be issued orally, by facsimile or by electronic commerce methods.

5.21 ORDER LIMITATIONS

With regard to orders placed against the Contract, there is NO minimum monetary limit on single orders.

5.22 PURCHASES BY OTHER PUBLIC AGENCIES

With the consent and agreement of the Contractor, purchases may be made under the Contract by other governmental agencies or political subdivisions within the State of Florida. Such purchases shall be governed by the same terms and conditions stated herein. This agreement in no way restricts or interferes with the right of any Florida State or political subdivision or other public entity to respond any or all of these items independently.

5.23 SAFETY DATA SHEET

a. The Contractor shall submit a Safety Data Sheet in, accordance with the requirements of 29 CFR 1910.1200(g) for all hazardous material identified and listed in the Contractor’s response. Data shall be submitted whether or not the Contractor is the actual manufacturer of these items. Failure to submit the Safety Data Sheet before the use of any hazardous material shall result in termination of the Contract with the Contractor for default.

b. The list of hazardous material in effect at commencement of the Contract must be updated during performance of the Contract whenever the Contractor determines that any hazardous material not previously listed is to be delivered under the Contract.

c. During performance of the Contract, if there is a change in the composition of the item(s), which renders incomplete or inaccurate the data previously submitted, the Contractor shall promptly notify the Contract Administrator and submit complete and accurate data.

d. Neither the requirements of this clause nor any act or failure to act by the City shall relieve the Contractor of any responsibility or liability for the safety of City, the Contractor, or subcontractor personnel or property.

e. Nothing contained in this clause shall relieve the Contractor from complying with applicable Federal, State, and local laws, codes, ordinances, and regulations (including obtaining required licenses and permits) regarding hazardous materials.

f. The City’s rights in data furnished under the Contract with respect to hazardous material are as follows:

(1) To use, duplicate and disclose any data to which this clause is applicable. The purposes of this right are to-

i) Apprise personnel of the hazards to which they may be exposed in using, handling, packaging, transporting, or disposing of hazardous materials;

ii) Obtain medical treatment for those affected by the material; and

iii) Have others use, duplicate, and disclose the data for the City for these purposes.

(2) To use, duplicate, and disclose data furnished under this clause, in accordance with subparagraph (f) (1) of this clause, in precedence over any other clause of the Contract providing for rights in data.

(3) The City is not precluded from using similar or identical data acquired from other sources.

g. The Contractor shall provide Safety Data Sheets (SDS) for all material to be brought on the plant site. The City must approve all materials prior to being brought on-site. The City may disallow any material that is restricted by its environmental policies or for any other justification that is not unreasonable.

5.24 PRE-PERFORMANCE CONFERENCE

a. The Contract Administrator or Technical Representative of the City reserves the right to conduct a Pre-Performance Conference (PPC) to discuss issues that may affect performance on the Contract. If the PPC is scheduled, the Contractor will be notified and will be required to attend. The Contractor will be notified of the date, time, and location of the PPC, and any need for attendance by subcontractors. At the conclusion of the PPC, the Contractor and other attendees it will be asked to sign a PPC Checklist that outlines the topics discussed at the PPC and it will be filed with the Contract.

b. The Contractor and all other attendees are cautioned that the PPC shall NOT be used as a forum for making changes to the terms and conditions in the Contract. Changes to the Contract shall be processed in accordance with the procedures provided for in the Changes clause of the Contract.

5.25 E-VERIFY

The Contractor, and its subcontractors, must register with and utilize the U.S. Department of Homeland Security’s E-Verify system to verify the work authorization status of all newly hired employees, pursuant to Section 448.095, Florida Statutes. Registration must take place prior to execution of the Contract. If the Contractor enters into any agreement with a subcontractor for performance of services under the Contract, the subcontractor must provide an affidavit to the Contractor which states that the subcontractor does not employ, contract with, or subcontract with any unauthorized aliens. The Contractor is required to maintain a copy of such affidavit throughout the term of the Contract.

The Contractor agrees to adhere to the requirements of Section 448.095, Florida Statutes, and understands that failure to comply with the statute will result in termination of the Contract. If such termination occurs, the Contractor will not be awarded another City contract for at least one (1) year from the date of Contract termination and will be liable for any additional costs incurred by the City as result of the Contract termination.

5.26 EQUAL OPPORTUNITY

Contractor agrees to comply with the City of Tallahassee Equal Opportunity Policy. Contractor will not discriminate against any employee or applicant for employment because of race, color, gender, religion, national origin, age, disability, marital status, pregnancy, sexual orientation, gender identity, protected veteran status and any other protected class.

5.27 FORCE MAJEURE

If either Party is delayed or prevented from performing any obligations under this Contract by circumstances beyond its control, including but not limited to fires, hurricanes, severe weather, floods, pandemics, quarantines, war, acts of terrorism, acts of God, or significant threats of such circumstances (collectively “Force Majeure”), the impacted Party may be excused from performance hereunder during the period of inability to perform. In case of any delay the impacted Party believes is excusable under this provision, the impacted Party will notify the other Party in writing of the delay or potential delay and describe the cause of the delay either (1) within ten (10) calendar days after the cause that created or will create the delay first arose, if the impacted Party could reasonably foresee that a delay could occur as a result, or (2) if delay is no reasonably foreseeable, within five (5) calendar days after the date the impacted Party first had reason to believe that a delay could result. The foregoing will constitute the impacted Party’s sole remedy or excuse with respect to delay. Providing notice in strict accordance with this paragraph is a condition precedent to such remedy.

Notwithstanding anything in this Contract to the contrary, Force Majeure does not include or excuse performance under this Contract for events related to increased costs associated with fuel, labor, labor disputes, insurance, or other expenses performing the obligations hereunder. The Contractor will not be entitled to an increase in the Contract price or payment of any kind from the City for direct, indirect, consequential, impact or other costs, expenses, or damages, including but not limited to costs of acceleration or inefficiency, arising because of delay, disruption, interference, or hindrance from any cause whatsoever.

If performance is suspended or delayed, in whole or in part, due to causes described in this paragraph, after the causes have ceased to exist the Contractor will perform at no increased cost. However, if the City determines, in its sole discretion , that the delay will significantly impair the value of the Contract, the City may (1) accept allocated performance from the Contractor, with respect to contractual services subjected to allocation, or (2) purchase from other sources (without recourse to and by the Contractor for the related costs and expenses) to replace all or part of the contractual services that are the subject of delay, which purchases may be deducted from the Contract quantity, or (3) terminate the Contract in whole or in part.

5.28 PUBLIC ENTITY CRIMES

As required by Florida Statute 287.133(2)(a) in part, a person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not be award or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO [$35,000] for a period of 36 months from the date of being placed on the convicted vendor list.

In accordance with Florida Statute 287.133(2)(b) a public entity may not award any contract to or transact any business in excess of the threshold amount provided in s. 287.017, F.S., for CATEGORY TWO with any person or affiliate on the convicted vendor list for a period of 36 months following the date that person or affiliate was placed on the convicted vendor list unless that person or affiliate has been removed from the…