Base_Agreement.pdf

Purchase Order Terms & Conditions

By shipping the Goods (as defined herein), the vendor identified in the Purchase Order (“Vendor”) agrees that these Purchase Order Terms and Conditions (“Purchase Terms”) govern the Purchase Order issued by the City of St. Petersburg, Florida (“City”), to which these Purchase Terms are attached. Vendor and the City are collectively referred to herein as the “Parties.”

1. Payment.

A. Pricing. Provided Vendor faithfully performs its obligations contained herein and the City has accepted the Goods in accordance with these Purchase Terms, the City will pay Vendor for the goods identified in the Purchase Order (“Goods”) pursuant to the unit prices set forth or described in the Purchase Order or in an attachment to the Purchase Order (if such attachment is specifically referenced in the Purchase Order), as applicable (“Unit Prices”), an amount not to exceed the total set forth in the Purchase Order (“Total Contract Price”). The Total Contract Price is inclusive of all delivery costs and Vendor’s warranty obligations under these Purchase Terms. The Unit Prices and the Total Contract Price may be increased only in strict accordance with these Purchase Terms.

B. Invoice. Vendor shall invoice the City upon each delivery of Goods or portion thereof. Vendor shall not invoice the City for any Goods prior to the delivery of such Goods. All invoices must be submitted in accordance with the requirements identified in the Purchase Order.

C. Payment. If the City accepts the Goods described in each invoice, the City will pay each invoice in accordance with the Local Government Prompt Payment Act.

D. Discounts. If the City is entitled to a discount for the early payment of invoices, the discount period will commence on the date of the City’s receipt of a proper invoice. If an adjustment to payment is necessary due to damage to the Goods, the discount period commences on the date the City accepts the Goods.

2. Delivery.

A. Date and Location. The Goods must be delivered to the shipping location set forth in the Purchase Order in accordance with the delivery date(s) specified in the Purchase Order. Time is of the essence as to Vendor’s obligation to deliver the Goods in accordance with the Purchase Order and these Purchase Terms.

B. Documentation. Unless otherwise agreed to by the City in writing, all deliveries made by Vendor pursuant to the Purchase Order must be accompanied by delivery tickets or sales slips which must contain the following information:

(i) Name of Vendor,

(ii) Purchase Order Number,

(iii) Description of Goods delivered (including model number and City’s inventory item number if applicable),

(iv) Quantity of each of the Goods, and

(v) Date of shipment of the Goods.

C. Default. In the event Vendor fails to deliver the Goods in accordance with the delivery date(s) specified in the Purchase Order, the City may order substitute goods from another vendor and recover from Vendor as damages the difference between the cost of cover and the price of the Goods under the Purchase Order.

The City may also recover from Vendor any incidental or consequential damages.

Failure of the City to effect cover does not bar it from any other remedy.

3. Term. These Purchase Terms commence upon Vendor’s shipment of the Goods and remain in full force and effect, unless the Purchase Order is terminated earlier as provided for herein, until the City accepts all Goods, all warranty periods expire, and all warranty-related work is completed to the City’s satisfaction.

4. Inspections and Acceptance.

A. Inspection. The City has a right to inspect the Goods within a reasonable time not to exceed ten (10) business days after delivery to determine whether the Goods conform to the Specifications (as defined herein).

B. Acceptance. The City shall accept the Goods if all the Goods fully conform to the Specifications and the requirements of these Purchase Terms.

C. Nonconforming Goods. The City will notify Vendor within fifteen (15) business days of the City’s receipt of the Goods of any discovery by the City of non-conformance of any of the Goods with the Specifications (“Non-conformance”).

Vendor shall correct the Non-conformance or exchange the defective Goods with replacement Goods within a reasonable time mutually agreed to by the Parties, at no additional cost to the City. Vendor’s failure to timely correct any Non-conformance is grounds for the City to reject and return to Vendor any or all Goods delivered pursuant to the Purchase Order at no additional cost to the City.

In the event the City rejects any or all of the Goods due to Non-conformance, the City may order substitute goods from another vendor and recover from Vendor as damages the difference between the cost of cover and the price of such Goods under the Purchase Order. The City may also recover from Vendor any incidental or consequential damages. Failure of the City to effect cover does not bar it from any other remedy.

5. Warranties.

A. Scope. In addition to any other warranties that may exist, including but not limited to any warranties set forth in the Purchase Order or its attachments and any warranties offered by Vendor, Vendor warrants that as of the City’s acceptance of the Goods, the Goods will (i) conform to the specifications (“Specifications”) set forth or described in the Purchase Order or its attachments;

(ii) be free from defects in materials and workmanship; and (iii) be fit for the purpose for which such Goods are ordinarily employed and, if applicable, for the purpose(s) set forth in the Purchase Order or its attachments. Vendor further warrants that the Goods will function and perform properly, as determined by the City, for a period of twelve (12) months after the City’s acceptance of the Goods.

To the extent longer warranty periods are set forth in the Purchase Order (including any attachments thereto), such longer warranty periods apply.

B. Remedy. In the event the City discovers during the applicable warranty period that the Goods or any portion or parts thereof were not as warranted, the City shall notify Vendor within ten (10) business days after discovery, and Vendor shall repair or replace the defective Goods or parts at no cost to the City within a reasonable time mutually agreed to by the Parties. Repaired or replaced Goods or parts will be warranted as new Goods are warranted pursuant to these Purchase Terms. This paragraph may not be construed to limit the remedies available to the City, including but not limited to the City’s right to recover incidental or consequential damages from Vendor in the event Vendor fails to meet the warranty obligations set forth herein.

6. Termination. The Purchase Order may be terminated at any time by the City for convenience upon thirty (30) days’ written notice to Vendor. Further, the City may terminate the Purchase Order as provided in Florida Statute sections 287.135 and 448.095.

7. Title and Risk of Loss. Title to and risk of loss in the Goods remains with Vendor until the City takes possession and accepts the Goods in accordance with these Purchase Terms.

8. Clear Title. Vendor shall deliver the Goods to the City with clear title and free of all liens, claims, or encumbrances of any kind.

9. Non-Exclusive Agreement. The Purchase Order and these Purchase Terms impose no obligation on the City to utilize Vendor for the exclusive purchase of all goods of this type. This is not an exclusive agreement. The City specifically reserves the right to concurrently contract with other companies for similar goods if it deems such action to be in the City’s best interest.

10. Contract Adjustments.

A. Modifications. The City may make additions, deletions or modifications to the Goods ordered (“Contract Adjustments”) in whatever manner the City determines to be reasonably necessary and without Vendor’s consent at any time before Vendor sends such Goods out for delivery; provided, however that the City may modify the Purchase Order at any time after Vendor sends such Goods out for delivery through a writing mutually agreed to by both Parties (“Change Orders”).

B. Price Increases. There may be no increase in the Unit Prices or the Total Contract

Price on account of any Contract Adjustment made necessary or appropriate as a result of the mismanagement, improper act, or other failure of Vendor or its employees, agents or subcontractors to properly perform their obligations and functions under the Purchase Order pursuant to these Purchase Terms.

Notwithstanding anything to the contrary contained in these Purchase Terms, there may be no increase in the Unit Prices or the Total Contract Price except pursuant to a Change Order agreed to in writing by both Parties.

11. Notices. Unless and to the extent otherwise provided for in these Purchase Terms, all notices, demands, requests for approvals and other communications that are required to be given by either party to the other must be in writing and will be deemed given and delivered on the date delivered in person, upon the expiration of five (5) business days following the date mailed by registered or certified mail, postage prepaid, return receipt requested, or upon the date delivered by overnight courier (signature required) to the address(es) for each party set forth in the Purchase Order.

12. Indemnification.

A. Indemnity Obligations. Vendor shall defend at its expense, pay on behalf of, hold harmless and indemnify the City, its officers, employees, agents, elected and appointed officials and volunteers (collectively, “Indemnified Parties”) from and against any and all claims, demands, liens, liabilities, penalties, fines, fees, judgments, losses and damages (collectively, “Claims”), whether or not a lawsuit is filed, including, but not limited to Claims for damage to property or bodily or personal injuries, including death at any time resulting therefrom, sustained by any persons or entities; and costs, expenses and attorneys’ and experts’ fees at trial and on appeal, which Claims are alleged or claimed to have arisen out of or in connection with, in whole or in part, directly or indirectly:

(i) The performance of the requirements set forth in the Purchase Order or these Purchase Terms by Vendor, its employees, agents, representatives or subcontractors; or

(ii) The failure of Vendor, its employees, agents, representatives or subcontractors to comply and conform with applicable Laws (as hereinafter defined); or

(iii) Any negligent act or omission of Vendor, its employees, agents, representatives, or subcontractors, whether or not such negligence is claimed to be either solely that of Vendor, its employees, agents, representatives or subcontractors, or to be in conjunction with the claimed negligence of others, including that of any of the Indemnified Parties; or

(iv) Any reckless or intentional wrongful act or omission of Vendor, its employees, agents, representatives, or subcontractors; or

(v) Any infringement or alleged infringement of the Goods, the City’s use of the Goods (provided that Vendor was notified of the City’s intended use or provided that such use is customary for goods of that type) or any materials or parts contained in the Goods upon any copyright, trademark, patent, or trade secret right of any party.

B. Effect of Insurance or Termination. The provisions of this paragraph are independent of, and will not be limited by, any insurance required to be obtained by Vendor pursuant to these Purchase Terms or otherwise obtained by Vendor, and the provisions of this paragraph survive the expiration or earlier termination of these Purchase Terms with respect to any Claims or liability arising in connection with any event occurring prior to such expiration or termination.

13. Insurance.

A. Requirements: Vendor shall maintain adequate insurance limits and coverage standard for its industry to cover possible damages or losses while performing its contractual obligations under the Purchase Order pursuant to these Purchase Terms.

B. Certificates of Insurance, Policies. At the City’s request, Vendor shall provide the City with Certificates of Insurance on a standard ACORD form, or similar form acceptable to the City, reflecting all required coverage. Vendor shall provide copies of current policies with all applicable endorsements.

C. Additional Insured. All of Vendor’s insurance policies, except Workers’ Compensation (and Professional Liability), shall name the Indemnified Parties as additional insureds.

D. Primary and Noncontributory. All insurance required must be on a primary and noncontributory basis and must be provided by responsible insurers licensed in the State of Florida and rated at least A- in the then-current edition of AM Best’s Rating Services, or similar rating agency acceptable to the City.

E. Broader Coverage. If the insurance carried by Vendor has broader coverage than required in these Purchase Terms, then that broader coverage, including but not limited to additional insured requirements, is deemed to be the requirement in these Purchase Terms. If Vendor’s insurance limits are greater than the minimum limits set forth herein, then Vendor’s insurance limits are deemed to be the required limits in these Purchase Terms.

F. Waiver of Subrogation. Vendor hereby waives all subrogation rights of its insurance carriers in favor of the Indemnified Parties. This provision is intended to waive fully, and for the benefit of the Indemnified Parties, any rights or claims which might give rise to a right of subrogation in favor of any insurance carrier.

G. Changes. The City reserves the right to change or alter the above insurance requirements as it deems necessary.

14. Successors and Assigns. These Purchase Terms inure to the benefit of and are enforceable by and against the Parties, their heirs, personal representatives, successors, and assigns, including successors by way of reorganization.

15. Compliance with Laws. Vendor shall comply at all times with all federal, state, and local statutes, rules, regulations and ordinances, the federal and state constitutions, and the orders and decrees of lawful authorities having jurisdiction over the matter at issue (collectively, “Laws”) including but not limited to Florida Public Records laws. Vendor shall also comply with all applicable City policies and procedures. Vendor hereby makes all certifications required under Florida Statute section 287.135.

16. Non-appropriation. The obligations of the City as to any funding required pursuant to the Purchase Order or these Purchase Terms are limited to an obligation in any given year to budget, appropriate and pay from legally available funds, after monies for essential City services have been budgeted and appropriated, sufficient monies for the funding that is required during that year. Notwithstanding the foregoing, the City is not prohibited from pledging any legally available non-ad valorem revenues for any obligations heretofore or hereafter incurred, which pledge will be prior and superior to any obligation of the City pursuant to the Purchase Order or these Purchase Terms.

17. Force Majeure. In the event that either party hereto is delayed or hindered in or prevented from the performance required hereunder by reason of acts of God, failure of power, public health emergencies, strikes, lockouts, labor troubles, riots, war, insurrection, or other reason of like nature not the fault of the party (“Permitted Delay”), such party will be excused from any obligations affected by the delay for the period of time equivalent to the delay caused by such Permitted Delay. Notwithstanding the foregoing, any extension of time for a Permitted Delay will be conditioned upon the party seeking an extension of time delivering written notice of such Permitted Delay to the other party within ten (10) days of the event causing the Permitted Delay.

18. Due Authority. Each party to these Purchase Terms that is not an individual represents and warrants to the other party that it is a duly organized, qualified and existing entity authorized to do business under the laws of the State of Florida.

19. Assignment. Vendor shall not assign these Purchase Terms or the Purchase Order without the prior written consent of the City. Any assignment of these Purchase Terms or the Purchase Order that is contrary to this paragraph is void and confers no rights upon the assignee.

20. Subcontract. The hiring or use of outside services or subcontractors in connection with the performance of Vendor’s obligations hereunder is not permitted without the prior written approval of the City. The City’s approval of outside services or subcontractors may be withheld by the City in its sole and absolute discretion. Vendor shall promptly pay all subcontractors and suppliers.

21. Relationship of Parties. Nothing contained herein may be deemed or construed by the Parties, or by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the Parties, it being understood and agreed that nothing contained herein, nor any acts of the Parties, may be deemed to create any relationship between the Parties other than the relationship of independent contractors and principals of their own accounts.

22. No Construction against Preparer of Agreement. These Purchase Terms have been prepared by the City and reviewed by Vendor and its professional advisors. The City, Vendor, and Vendor’s professional advisors believe that these Purchase Terms express the Parties’ agreement and that these Purchase Terms should not be interpreted in favor of either the City or Vendor or against the City or Vendor merely because of the Parties’ efforts in preparing them.

23. Use of Name. Subject to the requirements of Florida laws regarding public records, neither party may use the other party’s name in conjunction with any endorsement, sponsorship, or advertisement without the written consent of the named party, except that Vendor may refer to the City in client lists.

24. Severability. Should any paragraph or portion of any paragraph of these Purchase Terms be rendered void, invalid or unenforceable by any court of law for any reason, such determination will not render void, invalid or unenforceable any other paragraph or portion of these Purchase Terms.

25. Governing Law and Venue. The laws of the State of Florida govern the Purchase Order and these Purchase Terms. Venue for any action brought in state court must be in Pinellas County, St. Petersburg Division. Venue for any action brought in federal court must be in the Middle District of Florida, Tampa Division, unless a division is created in St.

Petersburg or Pinellas County, in which case the action must be brought in that division.

Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the Parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction.

26. Third Party Beneficiary. Notwithstanding anything to the contrary contained in the Purchase Order or these Purchase Terms, any person or entity that is not a party to these Purchase Terms may not claim any benefit hereunder or as a third-party beneficiary hereto.

27. Entire Agreement. These Purchase Terms and the Purchase Order constitute the entire agreement between the Parties and supersede all prior and contemporaneous agreements, whether oral or written, between them. Any terms and conditions set forth by Vendor in a quote, invoice, or any other communication or document that conflict with or add to these Purchase Terms or the Purchase Order are rejected by the City and are void and of no effect, even if such quote, invoice, or other communication or document is attached to these Purchase Terms or to the Purchase Order. Without limiting the generality of the foregoing, any terms and conditions set forth by Vendor in a quote, invoice, or any other communication or document that (i) require the City to indemnify, defend, or hold Vendor harmless; (ii) require a dispute resolution process or method (including but not limited to binding arbitration); (iii) provide for the award of attorneys’ fees to the prevailing party; (iv) waive any remedy available to the City in law or equity; (v) require the City to purchase insurance; or (vi) limit Vendor’s liability to a maximum dollar amount are rejected by the City and are void and of no effect. These Purchase Terms may be modified only if such modification is approved in writing by both Parties.

28. No Waiver. No provision of the Purchase Order or these Purchase Terms will be deemed waived by either party unless expressly waived in a writing signed by the waiving party.

No waiver may be implied by delay or any other act or omission of either party. No waiver by either party of any provision of the Purchase Order or these Purchase Terms will be deemed a waiver of such provision with respect to any subsequent matter relating to such provision, and the City’s consent respecting any action by Vendor does not constitute a waiver of the requirement for obtaining the City’s consent respecting any subsequent action.

29. Headings. The paragraph headings are inserted herein for convenience and reference only, and in no way define, limit, or otherwise describe the scope or intent of any provisions hereof.

30. Survival. All obligations and rights of the Parties arising during or attributable to the period prior to expiration or earlier termination of the Purchase Order, including but not limited to Vendor’s warranty obligations and those obligations and rights related to indemnification, survive such expiration or earlier termination.

00635965 one-time PO goods under $75K