[D]_Commodities_Contract.doc

AGREEMENT

BY AND BETWEEN

BRIDGEPORT BOARD OF EDUCATION

AND

[COMPANY]

THIS AGREEMENT made and entered into this ______ day of _______________, 202_ (“Effective Date”), by and between the BRIDGEPORT BOARD OF EDUCATION (the “BOE”), acting herein by Royce Avery, its Acting Superintendent and the through the _____________ Department (“Department”), with offices at 45 Lyons Terrace, Bridgeport, Connecticut, 06604, and _______ (the “Contractor”), a corporation organized and existing under the laws of the State of _____________, having a principal place of business located at _______, acting herein by _______, its President, duly authorized. The Contractor and the BOE are referred to hereinafter, collectively, as the “Parties.”

W I T N E S S E T H:

WHEREAS, the BOE is seeking a Contractor willing to sell the commodity or commodities identified in Exhibit A, which is attached hereto and incorporated herein (the “Commodity” or “Services”); accordingly, the BOE issued a Bid Solicitation dated ______; [Addendum No. 1 dated ______, Addendums 2 and 3 dated ______ ] (hereinafter referred to collectively as “Bid Solicitation”) copies of which are attached hereto and made a part of this Agreement as Exhibits __, __, __ and __; and

WHEREAS, in response to the BOE’s Bid Solicitation, the Contractor submitted a Proposal dated ______ and received on ______, a copy of which is attached hereto and made a part of this Agreement as Exhibits __; and

WHEREAS, Contractor is willing to provide said Commodity described herein for the compensation, and in compliance with the terms and conditions, set forth in this Agreement;

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties agree as follows:

1.

Engagement of Contractor A. The Parties hereby agree that the Commodity shall be available to the BOE throughout the term of this Agreement, in accordance with the terms and conditions and for the consideration set forth herein.

B.

The person in charge of administering this Agreement on behalf of the BOE shall be [NAME], [TITLE] or such other person as the BOE may designate in writing (the “Director.”)

C. The person responsible for administering this Agreement on behalf of the Contractor hereunder shall be [NAME] its [TITLE].

2.

Commodities, Purchase Price, Warranties & Representations A.

The Parties are entering into this Agreement for the purpose of retaining the Contractor to provide the Commodity detailed and delineated in the Bid Solicitation. During the term of this Agreement, the Contractor shall, in the quantities set forth in any purchase order that the Department may submit to the Contractor under this Agreement, sell to the Department the Commodities set forth on Exhibit A at the prices stated therein. Unless otherwise stated in Exhibit A, the Department shall pay all taxes applicable to any purchase it makes under this Agreement. Such Commodity may be amended or modified at the discretion of the BOE, as circumstances require.

B. Any request for a price increase must include supporting documentation demonstrating that the increase in contract price is based on an increased cost to the Contractor and that the proposed pricing is still competitive in the marketplace. The BOE has the right to approve or deny any request for a price adjustment.

C. In provided the Commodity, the Contractor warrants and represents as follows:

i. that it has, and has exercised, the required corporate power and authority and has complied with all applicable legal requirements necessary to adopt, execute and deliver this Agreement and to assume the responsibilities and obligations created hereunder; and

ii. that this Agreement is duly executed and delivered by an authorized corporate representative, in accordance with such representative’s powers to bind the Contractor hereunder, and constitutes a valid and binding obligation enforceable in accordance with its terms, conditions and provisions; and

iii. that it is a legally existing [limited liability company] existing under the laws of its state of organization, that it is registered and in good standing with the State of [Connecticut] Secretary of State, and that it has not previously filed, nor is presently contemplating filing, nor has received notice of a petition of, nor contemplates receiving notice of a petition of, bankruptcy, liquidation, receivership or any other action for the protection of creditors or debtors; and

iv. that it has the financial resources to perform this Agreement and that it is not the subject of any litigation or action, pending or threatened, regarding this Agreement or which, if resulting in an adverse decision, would affect its ability to perform its duties under this Agreement; and

v. that it has the requisite skill, expertise, judgment, knowledge, experience and financial resources to perform this Agreement as required under its terms; and

vi. that it has a sufficient number of experienced and properly licensed personnel available to provide the requested Commodity to the BOE, as may be needed from time to time throughout the term of this Agreement; and

vii. that it will be available to meet with the Director or his/her representatives and with members of the Department as appropriate; and with other entities as directed by the BOE, with regard to the Services provided hereunder.

D.

The Contractor shall retain in its possession all documents related to the performance of this Agreement, for a period of five (5) years following the completion of its final delivery and providing the invoice therefor, unless notified in writing by the BOE of the need to extend the retention period.

3.

Compensation A. Compensation. The BOE shall compensate the Contractor for the satisfactory delivery of the Commodities and all of the Contractor's duties, obligations and responsibilities under this Agreement, subject to additions and deductions as herein provided, the total annual sum of the base bid not to exceed: ___ Dollars ($____). Notwithstanding, the BOE shall be under no obligation to purchase any particular amount of the commodity, any specific commodity, or any commodity whatsoever for the duration of the Term.

B. Invoicing & Payment After Delivery. Unless otherwise stated in Exhibit A, payment for the Commodities is due within thirty (30) days of the date of the Contractor’s delivery of Commodities conforming to the Agreement and receipt of the Contractor’s invoice, whichever is later. The Contractor should invoice the agency by an itemized list of charges. The Department’s Purchase Order Number and/or the Bid Number should be referenced on each invoice.

Invoices must be sent to:

[Department Name]

[Department Mailing Address]

[Department Mailing City, State, Zip] B. Unauthorized Charges. Payment shall constitute full compensation for all labor, equipment, incidentals, materials, delivery fees, transportation cost, and disposal of unsuitable material in a legal manner. Compensation provided under this Agreement constitutes full and complete payment for all costs assumed by the Contractor in performing this Agreement. No direct costs shall be reimbursed by the BOE without specific, prior written approval signed by the Director.

C. Non-appropriation. Notwithstanding the foregoing, this Agreement shall be deemed binding only to the extent that funds are available to and appropriated by the BOE for payment in accordance with the terms hereof. No liability on account of this Agreement shall be incurred by the BOE beyond the funding available or appropriated, the BOE will immediately notify the necessary funding is not available or appropriated, the BOE will immediately notify the Contractor and the Parties will discuss and agree upon a modified Commodities.

4. Delivery: Title & Risk of Loss A. The Contractor shall deliver the Commodities FOB destination to the Department’s receiving address as set forth in [the relevant purchase order] under this Agreement, with all transportation and handling charges paid by the Contractor, unless the Parties agree otherwise in a writing signed by the Parties. Risk of loss of the Commodities will pass to the Department upon Contractor’s delivery of Commodities conforming to the Agreement pursuant to a purchase order from the Department under this Agreement. Contractor shall take all reasonable measures to ensure that any Commodities purchased under this Agreement shall be delivered within thirty (30) days of the Department’s issuance of the relevant purchase order unless the Parties agree otherwise in writing.

5.

Inspection A. The BOE may inspect any Commodities delivered, tendered, or identified to the BOE as being procured under this Agreement to determine whether they conform to the Agreement. The BOE’s right to inspection may be exercised at any reasonable place and time and in any reasonable manner, as determined in the BOE’s reasonable discretion, prior to acceptance of and payment for any Commodities procured under this Agreement. If any of the Commodities are found to be non-conforming, the BOE: (a) may elect to recover expenses of inspection, if any, from the Contractor and the Contractor shall bear the cost; and (b) the Contractor shall be responsible for the cost of any retrieval, return, or disposal of the Commodities. Payment for Commodities does not constitute acceptance of the Commodities as conforming to the Agreement if the BOE has not had a reasonable opportunity to inspect the Commodities or in the event of Contractor’s fraud or concealment of defects.

6. Term Dates

A. This Agreement shall commence on the Effective Date, and shall continue until August 31, 2026 (“Term”), unless earlier terminated or cancelled in accordance with the Agreement or some other writing agreed to and signed by the Parties. By written agreement of the parties, but at the BOE’s sole discretion, this agreement may be extended for no more than one (1) additional year.

7. Terms and Conditions of Solicitation Incorporated and Order of Precedence A. If this Agreement was awarded as the result of a solicitation, the Parties agree that, by this reference, this Agreement incorporates all material specifications in the underlying solicitation documents and any and all written representations, warranties, terms, and conditions, set forth in the bid or proposal that became the basis of this Agreement award, which representations, warranties, terms, and conditions continue in full force and effect unless amended by this Agreement or by a written agreement of the Parties. Accordingly, the provisions of this Agreement should be read as being consistent therewith and supplementary thereto to the extent reasonably possible. However, in the event of a conflict between the provisions of this Agreement and the provisions of the bid or proposal that was the basis of award, such conflict shall be resolved by giving priority to the documents in the order listed below, including but not limited to conflicting order of precedence provisions.

1. This Agreement, as may be amended in a writing signed by the Parties;

2. The Bid Solicitation including all Addenda;

3. Contractor’s response to Bid Solicitation.

8. Default, Termination, and Cancellation Clauses A. Default. The following shall constitute an Event of Default:

i. The BOE reasonably believes Contractor will be unable to perform this Agreement fully and satisfactorily within the time fixed for performance; or

ii. The BOE reasonably believes a meritorious claim exists or will exist against the Contractor or the BOE arising out of the negligent, willful or wanton acts, errors or omissions of the Contractor, its agents, servants or employees, or

iii. the Contractor's breach of this Agreement;

B. For Convenience. The BOE may terminate this Agreement for any reason by giving the Contractor written notice of such termination no less than thirty (30) days prior to the date of termination. If the Agreement is so terminated, the BOE’s only payment obligation under the Agreement shall be for those Commodities ordered prior to the effective date of the termination.

C. For Cause. Upon an Event of Default, the BOE may cancel this Agreement for cause by giving the Contractor written notice of such cancellation at least thirty (30) days prior to the date of proposed cancellation. In any written notice of cancellation for cause, the BOE will advise the Contractor in writing of the reasons why the BOE is considering cancelling the Agreement and may provide the Contractor with an opportunity to avoid cancellation for cause by curing any deficiencies identified in the notice of cancellation for cause prior to the date of proposed cancellation. The Parties may endeavor to agree to reasonable modifications in the Agreement to accommodate the causes of the cancellation for cause and avoid the cancellation, to the extent permitted by law, and at the discretion of each party individually.

D. Payments Subsequent to Default. Upon an Event of Default, the BOE may withhold payment of any amount otherwise due and payable to the Contractor hereunder after written notice to the Contractor with sufficient details of the alleged circumstance and accounting of the amount of payment withheld. Any amount so withheld may be retained by the BOE for such period as it may deem advisable to protect the BOE against any loss and may, after written notice to the Contractor, be applied in satisfaction of any claim herein described. This provision is intended solely for the benefit of the BOE, and no person shall have any right or claim against the BOE by reason of the BOE’s failure or refusal to withhold monies. No interest shall be payable by the BOE on any amounts withheld under this provision. This provision is not intended to limit or in any way prejudice any other right of the BOE.

9.

INSURANCE AND INDEMNITY REQUIRMENTS:

A.

The Contractor shall, at its sole cost, obtain and maintain throughout the effective period of this Agreement the insurance coverage specified by the Insurance Rider attached hereto as Exhibit __ and shall keep all such insurance in continuous effect for two (2) years following the date of final delivery and payment thereof. All insurance shall be taken out and maintained at no cost or expense to the BOE and the Contractor shall be responsible for the full amount of any deductible. Each insurance policy shall be endorsed to name the BOE as an additional insured party on a primary and noncontributory basis.

Before commencing providing any Commodity hereunder the Contractor shall furnish to the BOE a Certificate of Insurance and shall thereafter provide renewal certificates, as appropriate, evidencing such coverage written by a company or companies acceptable to the BOE. Such certificate and renewal certificates shall provide for a notice of cancellation, lapse or restrictive amendment by certified or registered mail at least thirty (30) days prior to the effective date thereof. With the exception of the professional liability coverage, all required insurance shall not be issued on a per occurrence basis only.

The Contractor shall require each of its subcontractors, if any, to procure and maintain until the completion of that subcontractor's services, insurance of the types and in the amounts specified in Exhibit __. The Contractor shall ensure that all its subcontractors comply with the insurance requirements contained herein relating to such subcontractors.

The Contractor shall indemnify, defend and save harmless the BOE, its officers, agents, servants and employees, from and against any and all claims, suits, proceedings, liabilities, judgments, losses, costs and damages, to the caused in whole or in part by the negligent, willful or wanton actions or omissions of the Contractor, its agents, servants, representatives, subcontractors, or employees in connection with the performance of this Agreement. The Contractor hereby assumes and agrees to pay for the defense of all such claims, damages, demands, suits and proceedings. The provisions of this paragraph shall survive the expiration or early termination of this Agreement and shall not be limited by reason of any insurance coverage provided.

10.

GENERAL PROVISIONS:

A.

The BOE may at any time, and for any reason, direct the suspension of the Services contemplated under this Agreement for a period of time by written notice specifying the suspension date, which shall not be less than five (5) days from the date on which such notice is given. The Services shall be resumed on the dates specified in such direction, or upon such other date as the BOE may thereafter specify in writing. Any suspension of Services under this paragraph shall not give rise to any claim against the BOE.

Claims Against the BOE. The Contractor shall not assert any claim arising out of any act or omission by any agent, officer or employee of the BOE in the execution or performance of this Agreement against any such agent, officer or employee. Such claims may only be made against the BOE.

C.

Conflicts of Interest. No member of the governing body of the BOE, and no other officer, employee, or agent of the BOE shall have any personal interest, direct or indirect, in this Agreement, except as permitted by the Code of Ethics of the City of Bridgeport; and the Contractor covenants that no person having such interest shall be employed in the performance of this Agreement

D.

Standard of Performance. The Contractor shall comply with all applicable laws, ordinances and codes of the United States of America, the State of Connecticut, and the City of Bridgeport and shall conform its performance of the Services to generally prevailing standards of professional care, employed by professionals practicing in the same or similar circumstances and geographical area.

E.

Non-Discrimination. During the performance of this Agreement, the Contractor agrees not to discriminate nor to permit any discrimination because of race, color, religion, age, sex, gender identity or expression, marital status, national origin, sexual orientation, ancestry, present or past history of mental disability, intellectual disability, learning disability, physical disability including, but not limited to blindness, unless it is proven that the disability or characteristic prevents proper performance of the work involved. The Contractor will take affirmative action to ensure that employees are treated, during employment, without regard to their race, color, religion, age, sex, gender identity or expression, marital status, national origin, sexual orientation, ancestry, present or past history of mental disability, intellectual disability, learning disability or physical disability including, but not limited to blindness.

F.

Entire Agreement. This Agreement (specifically including all schedules, addenda, riders and exhibits) incorporates all the understandings of the Parties hereto and supersedes any and all agreements reached by the Parties prior to the execution of this Agreement, whether oral or written.

G.

Assignment. The BOE and the Contractor each bind itself and its successors and assigns to the other party and to its successors and assigns with respect to all covenants of this Agreement. The Contractor shall not assign or transfer any interest in this Agreement without the prior written approval of the BOE.

H.

Partial Invalidity. If any provision of this Agreement is held invalid, the remaining provisions shall not be affected thereby if such provisions would then continue to conform to the requirements of applicable laws. The remaining provisions shall thereupon continue in full force and effect.

I.

Modifications. No change or modification of this Agreement shall be valid unless it is in writing and executed by all parties to this Agreement.

J.

Notices. All notices of any nature referred to in this Agreement shall be in writing and sent by registered or certified mail, postage prepaid, to the respective addresses set forth below or to such other addresses as the respective parties hereto may designate in writing:

To the BOE: [BOE CONTACT]

Bridgeport Board of Education

45 Lyons Terrace

Bridgeport, CT 06604

With a Copy to:

Office of the City Attorney

City of Bridgeport

999 Broad Street

Bridgeport, CT 06604 To the Contractor:

address provide above Notices shall be deemed to have been duly given, delivered or served either upon personal delivery or three (3) days following the date when they are sent by registered mail with proper postage.

L.

Choice of Law. This Agreement shall be construed in accordance with the laws of the State of Connecticut, and any action at law in connection herewith shall be brought in the State of Connecticut, Judicial District of Fairfield at Bridgeport.

M.

Headings. Headings are for reference purposes only and have no substantive effect.

N.

No Third-Party Beneficiaries. None of the provisions of this Agreement are intended to be for the benefit of, or shall be enforceable by, any person or entity other than the Parties hereto and their permitted successors or assigns.

O.

Partial Waiver. The waiver of any provision in this Agreement in one instance shall not preclude enforcement thereof on future occasions.

11.

ELECTRONIC SIGNATURE

This Agreement may be executed and delivered via facsimile or electronic mail by either of the parties and the receiving party may rely on the receipt of such document so executed and delivered via facsimile or electronically as if the original had been received.

Dated at Bridgeport, Connecticut, the day and year first above written.

BRIDGEPORT BOARD OF EDUCATION

By:____________________________

Royce Avery

Acting Superintendent

Duly Authorized

Date signed: ___________________

CONTRACTOR

By:____________________________

_____, [TITLE]

Its Officer

Duly Authorized

Date signed: ___________________

APPROVED AS TO FUNDS:

BOE FINANCE DEPARTMENT

By:__________________________

APPROVED AS TO FORM:

OFFICE OF THE CITY ATTORNEY

By:__________________________

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