6-C. SAMPLE CONTRACT for FY26-RFP-03 HVAC System Services.docx

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

Heating, Ventilation, and Air Conditioning (HVAC) System Services

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

This cover sheet (“Cover Sheet”) and each of the attachments listed below (“Attachments”) together comprise {---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:

ATTACHMENTS

Service Terms General Conditions Price Schedule Scope of Services Charlotte Water Specific Terms CBI Forms

Services. Company agrees to perform the services described in the Attachments (“Services”) under the terms and conditions set forth in this Contract.

Compensation. The City will pay for the Services at the rates set forth in the Price Schedule. These rates 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.

Title:

Title:

Date:

Date:

RESERVED

SERVICE TERMS

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

[Vendor Name] Heating, Ventilation, and Air Conditioning (HVAC) System Services

[Vendor Name] Heating, Ventilation, and Air Conditioning (HVAC) System Services

1. Services. Company agrees to perform the services described in the Scope of Services Attachment (the “Services”). Additional Scope of Services Attachments may be added to this Contract by a written amendment, and once added shall become part of the “Services.”

2. Expenses Company shall not be entitled to charge the City for any travel, mileage, meals, materials, or other costs or expenses associated with this Contract.

3. Premium Rates. Unless explicitly listed in the Price Schedule, Company will not charge the City at overtime, emergency, or other premium rates, regardless of the number of hours worked in a given day or week.

4. Billing Records. During the term of this Contract and for three (3) years after it terminates, Company will keep documentation sufficient to verify the amounts billed to the City. The City has the right to audit Company’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 Services that did not meet the standards and requirements referenced in this Contract. Company 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 the Company. However, if non-compliance is found that would have cost the City in excess of $10,000 but for the audit, then the Company shall be required to reimburse the City for the cost of the audit.

5. Employment Taxes and Employee Benefits. Company acknowledges and agrees that Company’s employees and subcontractors are not employees of the City. Company represents, warrants, and covenants that Company will pay all withholding tax, social security, Medicare, unemployment tax, worker’s compensation, and other payments and deductions that are required by law relating to provision of the Services. Company shall indemnify, defend, and hold harmless the City and the City’ officials, employees and agents from and against any and all claims, losses, damages, fines, penalties, obligations, liabilities and expenses, including but not limited to reasonable attorneys' fees arising from any claim that an individual performing the Service is an employee of the City.

6. City Ownership of Work Product. The City will have exclusive ownership of all reports, documents, designs, ideas, materials, concepts, plans, creative works, software, data, programming code and other work product developed for or provided to the City in connection with this Contract, and all patent rights, copyrights, trade secret rights and other intellectual property rights relating thereto (collectively the “Intellectual Property”). Company hereby assigns and transfers all rights in the Intellectual Property to the City. Company further agrees to execute and deliver such assignments and other documents as the City may later require to perfect, maintain, and enforce the City’s rights as sole owner of the Intellectual Property, including all rights under patent and copyright law. Company hereby appoints the City as attorney in fact to execute all such assignments and instruments and agrees that its appointment of the City as an attorney in fact is coupled with an interest and is irrevocable.

7. License to Use Intellectual Property. The City grants Company a royalty-free, non-exclusive license to use and copy the Intellectual Property to the extent necessary to perform this Contract. Company may not to use the Intellectual Property for other purposes without the City’s prior written consent, and Company agrees to treat the Intellectual Property and all City data with the same level of protection that Company afford Company’s own trade secrets and intellectual property.

8. Contract Data. The City shall have exclusive ownership of the following (collectively referred to as “Contract Data”): (a) all data produced or generated under this Contract for the benefit of the City or its customers; and (b) all data provided by, accessed through, or processed for the City under this Contract. Company will promptly provide the Contract Data to the City in machine readable format upon the City’s request at any time while this Contract is in effect or within three years after this Contract terminates.

9. Company Will Not Sell or Disclose Contract Data. Company will treat Contract Data as Confidential Information under this Contract. Company will not reproduce, copy, duplicate, disclose, or use the Contract Data in any manner except as authorized by the City in writing or expressly permitted by this Contract.

10. Supporting Data. If Company will be providing work product under this Contract that is based on an analysis of data Company will provide the City with all data supporting Company’s analysis (“Supporting Data”) in a machine-readable format, together with a written description of the methods of analysis. Excluding Confidential Information of Company (as defined in this Contract), the City shall be permitted to reproduce, copy, duplicate, disclose, or use the Supporting Data for any purpose, and it shall be treated as a public record under North Carolina law.

11. City Resources. The City is not required to provide any information, personnel, facilities, or other resources aside from what is specifically required in the Scope of Service unless the City can do so at no cost. When this Attachment requires the City to provide a resource, Company shall request it in writing in a timely manner. If Company will be delayed in performing due to any failure by the City to provide a resource required by this Contract, Company shall promptly notify in writing both the City Business Contact and Official Notice Recipients identified in the General Conditions. Failure or delay by the City to provide required resources will not excuse Company from any failure or delay in performance unless Company has followed these steps. The duration of any excused delay will be limited to the time period after Company has followed these steps.

12. Compensation for Termination Without Cause. If the City terminates this Contract without cause, the City shall pay Company for Services rendered through the date of termination at the rates set forth in the Price Schedule. The City’s obligation to make such payments is conditioned upon Company having complied with the Section of General Conditions captioned “Obligations On Termination,” and is subject to the City’s right to inspect billing records and dispute any charges as provided under this Attachment.

13. Removal and Replacement of Personnel. “Key Personnel” are the individuals listed as such on the Scope of Service, and any other individuals whom the City reasonably deems integral to successful performance of the Services. Absent the City’s written approval, Company will not: (i) remove Key Personnel from performance of this Contract or permit Company’s subcontractors to remove Key Personnel from performance of this Contract; or (ii) materially reduce or allow Company’s subcontractors to materially reduce the involvement of Key Personnel in performing this Contract. The City will have the right to interview and approve Key Personnel, and also to require the removal and replacement of Key Personnel if the City has reasonable grounds to believe that the individual is not suitable for the assignment, including without limitation insufficient experience, inadequate qualifications, lack of necessary skills, improper conduct, background check results, or other grounds. Upon receipt of a request for rejection, removal, or replacement of an individual, Company will promptly comply with the request and provide the City with the requisite background materials for a proposed alternate or successor. If Company does not believe the City has reasonable grounds for making the request, Company will notify the City in writing and the City will have the right to exercise its termination rights under the Contract, or to suspend the Contract and any payments due until such matter is resolved.

14. Regeneration of Lost or Damaged Data. If Company loses or damages any data in the City’s possession, Company will, at Company’s own expense, promptly replace or regenerate such data from the City's machine-readable supporting material, or obtain, at Company’s own expense, a new machine-readable copy of lost or damaged data from the City’s data sources.

15. City Materials and Data Treated as Confidential. Company will treat as confidential information all data and materials provided by or processed for the City in connection with this Contract. Company 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.

16. Background Checks.

16.1. BACKGROUND CHECKS REQUIRED PRIOR TO WORK. Prior to starting work under this Contract, Company will conduct a background check on each Company 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.

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

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

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

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

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

16.4. COMPLIANCE WITH APPLICABLE LAW. Company 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.

16.5. DUTY TO REPORT INFORMATION TO CITY. Company shall notify the City of any information discovered in the Background Checks that may be of potential concern for any reason.

16.6. CHECKS CONDUCTED BY CITY. The City may conduct its own background checks on principals of Company 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.

17. RESERVED.

GENERAL CONDITIONS

This Attachment is incorporated into {---Contract Title---} (the “Contract”) between the City of Charlotte (“City”) and {---Vendor Legal Name---} (“Company” or “the Company”). 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, the General Conditions shall have first priority, and all other Attachments shall have priority in the order in which they are listed on the Cover Sheet.

2. INVOICES. Each invoice sent by Company shall detail all Services performed and delivered which are necessary to entitle Company to the requested payment under the terms of this Contract. All invoices must include an invoice number and the City purchase order number for purchases made under this Contract. Purchase order numbers will be provided by the City. Invoices must be submitted with lines matching those on the City-provided purchase order.

3. PAYMENT TERMS. The City will pay undisputed, properly submitted invoices within thirty (30) days after receipt. As a condition of payment, Company must invoice the City for Services within sixty (60) days after the Services are performed. Company WAIVES THE RIGHT TO CHARGE THE CITY FOR ANY SERVICES THAT HAVE NOT BEEN INVOICED WITHIN SIXTY (60) DAYS AFTER SUCH SERVICES WERE RENDERED.

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 Company. The City shall only pay for Products and Services rendered through the date of termination, subject to Company’s compliance with Section 8 (Obligations on Termination Section). Company 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. 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 Company:

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 the Company has not in fact defaulted, the termination shall be deemed to have been effected for the convenience of the City and the Company 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, Company will promptly provide to the City, at no cost, (i) all data, materials, software, and equipment provided to Company 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 Company of the obligation to pay any fees, taxes or other charges then due to the City. Termination shall not relieve the Company from any claim for damages previously accrued or then accruing against Company. In the event that the City disputes in good faith an allegation of default by Company, notwithstanding anything to the contrary in this Contract, the Company 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 Company, unless (i) the parties agree in writing, or (ii) an order of a court of competent jurisdiction determines otherwise.

9. REPRESENTATIONS AND WARRANTIES. Company represents, warrants, and covenants that: (a) all Services and deliverables will meet and comply with Contract requirements, applicable law, and accepted industry standards; (b) each person providing the Services has the qualifications, skills, experience, and knowledge necessary to perform the tasks assigned; (c) no services or deliverables provided under this Contract will infringe or misappropriate any patent, copyright, trademark, trade secret, or other intellectual property rights of any third party; (d) neither the execution nor the performance of this Contract will violate any third party contractual rights; (e) Company 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; and (f) Company has the requisite power and authority to execute and perform this Contract. Company and each person signing this Contract for Company represents and warrants that the execution, delivery, and performance of this Contract have been duly authorized by Company. Additional warranties may be set forth in the Attachments.

10. REMEDIES.

10.1. Right to Withhold Payment. The City is entitled to setoff and deduct from any amounts owed to Company under this Contract all damages and expenses incurred due to the Company’s breach. If Company 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.

10.2. 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, Company 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.

10.3. 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.

10.4. RESERVED.

10.5. INDEMNIFICATION. To the fullest extent permitted by law, Company 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:

10.6. Breach of contract, negligence or willful misconduct by Company or any of Company’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;

10.7. Violation of any federal, state, or local law, ordinance, rule, regulation, guideline, or standard by Company or its employees or subcontractors, or by any service, product, or deliverable provided under this Contract;

10.8. 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, Company 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 Company is unable to comply with the preceding sentence within thirty (30) days after the City is directed to cease use of a product or service, Company shall promptly refund to the City all amounts paid under this Contract.

In any case in which Company 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 Company.

11. INSURANCE.

Company 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.

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

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

iv. If Company is trucking fuel or hauling potential pollutants, the Automobile Liability coverage shall be broadened to include pollution coverage on covered autos, and a copy of endorsement CA 99 48 shall be provided to the City. Company must also supply the City with evidence of motor carrier endorsement MCS-90 as required by the Federal Motor Carrier Safety Administration’s Motor Carrier Act.

i. If the Company will be operating vehicles in the Aircraft Operation Area (“AOA”), the aforementioned insurance limits shall be no less than $5,000,000 for all the categories as described above.

(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 Company does not employ more than 2 full time employees, Company must attest this fact on company letterhead and include such letter in this Contract.

(d) Errors & Omissions Insurance with a limit of not less than $3,000,000 per claim, $3,000,000 aggregate as shall protect the contractor and the contractor’s employees for negligent acts, errors or omissions in performing the professional services under this contract.

12. 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 Company 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:

Ann M. Allen

City Attorney’s Office

4222 Westmont Drive

Charlotte, NC 28217

980-226-1413 ann.allen@charlottenc.gov

Elizabeth (Leigh) Murray

Charlotte Water Acquisition & Compliance Procurement Unit

5100 Brookshire Blvd.

Charlotte, NC 28216

(980) 766-7570

Elizabeth.Muray@charlottenc.gov

{---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.

13. WORK ON CITY’S PREMISES. Whenever on City premises, Company will obey all instructions and City policies applicable to City employees and contractors that Company is made aware of. If Company causes damage to the City’s equipment or facilities, Company will promptly repair or replace such damaged items at Company’s expense.

14. 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 Company 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.

15. REQUIRED BY CITY ORDINANCE: COMMERCIAL NON-DISCRIMINATION. Company 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. Company consents to be bound by the award of any arbitration conducted thereunder.

16. REQUIRED BY STATE LAW.

16.1. E-Verify. Company will comply with the requirements of Article 2 of Chapter 64 of the North Carolina General Statutes, and shall ensure that each of its subcontractors also do so.

16.2. NC Prohibition on Contracts with Companies that Invest in Iran or Boycott Israel. By executing this contract, Company represents and warrants that it is eligible to contract with the City because it is not identified as an ineligible company on the State Treasurer’s list created pursuant to G.S. 147-86.58 or identified as a restricted company for purposes of the Israel Boycott. Company also agrees to immediately notify the City if it is identified as an ineligible company on either list at any time during the term of this Contract.

17. CHARLOTTE BUSINESS INCLUSION POLICY. 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:

17.1. 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.

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

17.3. 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.

17.4. The City will incur damages if the Company 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 Company agrees to pay the liquidated damages assessed by the City at the rates set forth in the CBI Program for each specified violation. The Company 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.

17.5. 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 Company 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 Company waives any right to interest that might otherwise be warranted on such withheld amount under North Carolina General Statutes Section 143-134.1.

17.6. 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.

17.7. The Company 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.

17.8. Nothing in this Section shall be construed to relieve Company from any obligation it may have under N.C. Gen. Stat. §143-134.1 regarding the payment of subcontractors.

18. CHARLOTTE BUSINESS INCLUSION MWSBE UTILIZATION AND REPORTING

18.1. SUBCONTRACTOR UTILIZATION. Company has committed to subcontract for supplies and/or services from City Certified Small Business Enterprises (SBEs), and/or City Registered Minority Business Enterprises (MBEs) and Woman Business Enterprises (WBEs) for the duration of the Contract, as follows:

Company shall not terminate, replace or reduce the work of an MWSBE without providing written notice to the city as outlined in the CBI Policy. Failure of Company to fulfill these utilization requirements shall constitute a material breach of this Contract, and shall entitle the City to exercise any of the remedies set forth in the CBI Policy, including but not limited to liquidated damages.

18.2. LETTERS OF INTENT. Company acknowledges that it will be required to execute one or more letters of intent on or prior to the Effective Date. Each letter of intent will list the subcontractor (MWSBE) vendor name and the amount that Company has committed to spend with the subcontractor. The letter(s) of intent will be submitted in such format as the City shall determine. Company consents to submit its letter(s) of intent via the City’s selected electronic compliance management system, at the City’s option. The letter(s) of intent shall be deemed to be incorporated into this Contract when submitted by Company and accepted by the City. Any changes to letters of intent or any new letters of intent will also be deemed incorporated into this Contract when submitted by Company and accepted by the City.

18.3. PAYMENTS TO MWSBEs. Company shall abide by N.C. Gen. Stat. §143-134.1 (b) and within seven (7) days of receipt by the prime contractor of each periodic or final payment, the prime contractor shall pay the subcontractor based on work completed or service provided under the subcontract. Furthermore, if Company has made a Quick Pay Commitment under the CBI Program, Company shall comply with any provisions of the Quick Pay Commitment that are more stringent than N.C. Gen. Stat. §143-134.1 (b), but shall also remain bound by N.C. Gen. Stat. §143-134.1(b).

18.4. PAYMENT REPORTING. As a condition to receiving payments under this contract, Company agrees to submit any payment record into InclusionCLT, or any subsequent system designated by the city, detailing the amounts paid by Company to all subcontractors and suppliers receiving payment in connection with this contract.

19. GENERAL.

19.1. 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 Company and the City. Clicking “consent” or “agree” electronically when accessing software or a website will not constitute a writing sufficient to bind the City.

19.2. 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.

19.3. 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.

19.4. ASSIGNMENT/SUBCONTRACTING. Company 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.

19.5. DELAY / CONSEQUENTIAL DAMAGES. The City will not be liable to Company, 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.

19.6. 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.

19.7. PUBLICITY. Company 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) Company may list the City as a reference, and (ii) Company may identify the City as a customer in presentations to potential customers.

19.8. 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.

19.9. 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.

19.10. TAXES. Company will pay all applicable federal, state, and local taxes that may be chargeable against the performance of the Services.

19.11. 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.

19.12. 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.

19.13. CONFLICTS OF INTEREST. Company will not take any action that is or is likely to be perceived as conflict of interest under this Contract. Company has not made and will not make any gifts to City employees or officials in connection with this Contract.

19.14. COMPLIANCE WITH LAWS. Company and its subcontractors will comply with all local, state, and federal ordinances, statutes, laws, rules, regulations, and standards (“Applicable Law”) in performing this Contract.

Company represents and warrants that each deliverable provided under this Contract will comply with all Applicable Law, including without limitation the Americans With Disabilities Act (ADA). Company 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 Company, must be accessible to individuals with disabilities. Company hereby warrants that the Products and/or Services it will provide under this Contract comply with the ADA. Company agrees to promptly respond to and resolve any complaint regarding the accessibility of its products or services. Company further agrees to indemnify and hold harmless the City from any claims arising out of Company’s failure to comply with these ADA Requirements. Failure to comply with these requirements by Company, its employees, agents, or assigns, will constitute a material breach of this Contract.

19.15. PRE-AUDIT. Notwithstanding anything contained herein to the contrary, the parties acknowledge and agree that no pre-audit certificate is required under N.C. Gen. Stat. §159-28(a) because this Contract imposes no financial obligation on the City that will become due during the City’s current fiscal year. The City’s fiscal year runs from July 1 to June 30. The current fiscal year is the one in which the Contract is executed.

PRICE SCHEDULE

This Attachment is attached and incorporated into {---Contract Title---} (the “Contract”) between the City of Charlotte (“City”) and {---Vendor Legal Name---} (“Company”). 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.

PRICE ADJUSTMENTS

The price(s) stated in this Attachment shall not increase during the initial term of this Contract. Thereafter, price adjustments may be considered, to take effect during each renewal term(s), providing that the Company submits a request, in writing to the City, at least sixty (60) days prior to the Effective Date of the immediate subsequent renewal term.

Price adjustments shall adhere to the following terms:

· Price increases shall only be allowed when justified in the City’s sole discretion based on legitimate, bona fide increases in the cost of materials. No adjustment shall be made to compensate the Company for inefficiency in operation, increase in labor costs, or for additional profit.

· To obtain approval for a price increase, the Company shall submit a written request to the Acquisition and Compliance representative, at the e-mail address listed below, together with written documentation sufficient to demonstrate that the increase is necessary based on a legitimate increase in the cost of materials. The request must state and fully justify the proposed price increase per unit over the price originally proposed.

Procurement Officer Name Charlotte Water Acquisition and Compliance Procurement Officer E-mail Address

· No proposed price increase shall be valid unless accepted by the City in writing. The City may approve such price increase for the remaining term of this Contract or for a shorter specified period, in the City’s sole discretion. If the City rejects such price increase, the Company shall continue performance of this Contract.

· If the City approves a price increase pursuant to this procedure and the market factors justifying the increase shift so that the increase is no longer justified, the City shall have the right to terminate the price increase and revert back to the prices that were in effect immediately prior to the increase. The Company shall notify the City in writing if the market factors on which the City granted the increase change such that the City’s reasons for granting the increase longer apply.

Company shall provide the Services detailed in this Contract at rates set forth below.

SCOPE OF SERVICES

This Attachment is attached and incorporated into {---Contract Title---} (the “Contract”) between the City of Charlotte and {---Vendor Legal Name---} (“Company”). 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.

CHARLOTTE WATER SPECIFIC TERMS

This Attachment is attached and incorporated into the {---Contract Title---} (“Contract”) between the City of Charlotte (“City”) and {---Vendor Legal Name---} (“The Company”), and is applicable if the Company does work for the City of Charlotte Charlotte Water Department, including the Storm Water Services Department. Capitalized terms not defined in this Attachment will have the meanings stated in the Contract.

1. SPILL PREVENTION, RESPONSE, AND REPORTING AT TREATMENT FACILITIES.

0. ISO 14001 ENVIRONMENTAL MANAGEMENT SYSTEM. The City holds a certification at the wastewater treatment facilities to the current ISO 14001 Environmental Management Systems (EMS) standard, an internationally recognized framework to continually improve environmental performance. The EMS ensures the City takes proactive measures to minimize environmental impacts, comply with relevant legal requirements, and achieve environmental objectives. All service providers, subcontractors, and vendors shall use best management practices and industry standards as required to prevent pollution in order to help the City conform to the EMS.

0. Each wastewater treatment facility has a Spill Prevention, Control, and Countermeasure (SPCC) Plan in accordance with the SPCC regulation (40 Code of Federal Regulations (CFR) 112) and a Stormwater Pollution Prevention Plan in accordance with the Federal Water Pollution Control Act’s National Pollutant Discharge Elimination System (NPDES) Program. The Company shall pay any costs incurred for spill response including clean-up and disposal fees and fines levied against the City for any spills or leaks caused by the Company or any of their subcontractors or vendors. The Company is responsible for training their staff, subcontractors, and suppliers on spill prevention, response, and reporting procedures. The Company shall maintain equipment necessary for the clean-up of spills, drips or leaks near the equipment or material that is being used or stored at all times. Suggested equipment includes absorbent, industrial wipers, barrier systems, and clean-up containers. Company must notify City immediately if a spill of any quantity or type occurs on the property.

1. OIL POLLUTION PREVENTION. Company shall be responsible for spill prevention and response for all storage tanks, pumps, and equipment holding any quantity of oil that the Company or his subcontractor or suppliers are using to execute the Work or have on-site in preparation for executing the Work. The Company shall provide prior notification to the City of all oil and petroleum deliveries, and the City must be present at the time of connect to and disconnect from storage containers or equipment. The following delivery requirements shall be followed for all petroleum and oil deliveries:

· Give the City notice that delivery is going to be made.

· The Company shall follow standard operating procedures and good safety practices in accordance with the regulations including but not limited to those defined by the Department of…