FHPS - HS TV Removal RFP APP C.pdf

FOREST HILLS PUBLIC SCHOOLS

<VENDOR NAME>

High School TV Removal RFP

SAMPLE CONTRACT

<DATE>

Forest Hills Public Schools Page 1 of 10

High School TV Removal RFP Sample Contract

Februrary 2019

FOREST HILLS PUBLIC SCHOOLS

High School TV Removal Sample Contract

This High School TV Removal Agreement ("the Agreement") is made on the Effective Date, between <VENDOR NAME>. (hereinafter called “the Contractor”) whose address is <VENDOR ADDRESS> and Forest Hills Public Schools (hereinafter called “the District”) whose address is 6590 Cascade Road SE, Grand Rapids, MI 49546.

RECITALS

A. The Contractor will provide services for the removal of all High School CRT TVs (herein called “the System(s)”) as contemplated in the Request for Proposal.

B. The District desires the removal all existing CRT televisions from its two high school buildings and its one high/middle school building and any associated Services necessary to complete the project from the Contractor upon the terms and conditions set forth herein and in the Request for Proposal, Contractor’s response to the Request for Proposal and subsequent clarifications.

C. The Contractor shall supply all equipment, materials, technology and other related Services necessary to accomplish the requirements set forth in the Request for Proposal and the Contractor’s response to the Request for Proposal. Parties agree that where there is a conflict between terms of this Agreement and the information presented in the Exhibits hereto, identified below, this Agreement shall take precedence. The order of precedence has been set forth in Paragraph 1.1. The parties also agree that where there is not a conflict between this Agreement and the information presented in the referenced in the Exhibits that all terms and conditions in the Request for Proposal and the Contractor’s Response to the Request for Proposal shall be incorporated by reference into the Agreement and shall be binding upon all parties to the Agreement.

D. District and the Contractor each binds themselves, their partners, successors, and other legal representatives to all covenants, agreements, and obligations contained in this Agreement.

E. It is expressly agreed that the Contractor is not an agent of District but an independent contractor.

The Contractor shall not pledge or attempt to pledge the credit of District or in any other way attempt to bind the District.

NOW, THEREFORE, IN CONSIDERATION FOR THE FOREGOING AND THE MUTUAL COVENANTS

SET FORTH HEREIN, THE PARTIES HERETO AGREE AS FOLLOWS:

1. DEFINITIONS AND EXHIBITS

1.1. Contract Documentation. “Contract Documentation” shall mean (i) this Agreement, (ii) bid bulletins and clarifications attached hereto (Exhibit A), (iii) the District’s Request for Proposal (RFP) dated February 2019, and (iv), and the Contractor’s response to the RFP dated February

XX, 2019.

1.2. Documentation. "Documentation" shall mean (i) all written materials or information relating to the System(s) or its operation, including without limitation, user-oriented and technical operation, warranties, acceptance testing reports, and reference and training manuals and (ii)

Forest Hills Public Schools Page 2 of 10 the documentation as outlined in the Contract Documentation.

1.3. Effective Date. "Effective Date" shall mean the last date on which both parties hereto have executed this Agreement.

1.4. Purchase Price. "Purchase Price" shall mean the aggregate amount payable by the District for

(i) the purchase of the System(s) and (ii) the Services to be provided by the Contractor in accordance with the Contract Documentation. The Purchase Price is inclusive of all taxes, shipping, handling, bonds and insurance.

1.5. Services. All installation, site work, testing, debugging and acceptance testing activities.

1.6. Sites. Sites shall mean the locations set forth in the Contract Documentation.

2. TURNKEY SOLUTION

2.1. Turnkey Solution. This Agreement and the other Contract Documentation set forth the terms and conditions upon which the Contractor will provide a "turnkey" solution for installation and operation of the System(s) for use by the District. The Contractor agrees that it will provide a complete "Turnkey Solution" to the District. The Contractor shall be responsible for the successful installation, acceptance testing and Documentation of the System(s) as detailed in the Contract Documentation.

2.2. The Contractor’s Obligation. In consideration of the payment of the Purchase Price, it is agreed and understood that the Contractor shall be obligated to provide the Systems and Services, subject to the terms and conditions set forth herein and in the following Contract Documentation:

General Terms and Conditions Section of the RFP

Project Requirements & Specifications Section of the RFP

2.3. Guarantee. Contractor will guarantee its design, operation and functionality of the System(s), in accordance with the Contract Documentation.

2.4. Walk-Through. Contractor has had an opportunity to review each Site and acknowledges that it has no concerns with its proposed design that would prohibit Contractor from guaranteeing the installation and operation of the System(s), as contemplated in the Contract Documentation.

2.5. Complete Solution. Contractor will supply all labor, materials, Services and equipment necessary to provide the System(s) in accordance with the Purchase Price set forth in Section 3.1.

The Contractor represents and warrants that the purchase of the System(s) and installation Services provided to the District will constitute a fully operational solution as contemplated by the Contract Documentation.

3. PAYMENT

3.1. Purchase Price. The Contractor agrees to sell to the District and the District agrees to purchase the System(s) and Services upon the terms and conditions set forth in this Agreement at a price not to exceed $XX,XXX.XX.

3.2. Payment Terms: Payment shall be in accordance to the following schedule:

(A) Progress billing can be submitted monthly for equipment that is delivered and installed, based on a mutually agreed upon percentage of completion between the District and the

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Contractor. Total progress payments shall not exceed 90% of the total Purchase Price.

Progress billings shall reflect the 10% retainage referenced below.

(B) 10% of the total Purchase Price will be held as retainage and will be payable within (30) thirty days of final acceptance of the completed System(s) by the District or its designated representative. The retainage shall be payable based upon the final acceptance of all sites.

3.3. Request for Payment. The Contractor shall submit to the District’s project coordinator the standard AIA Application for Payment forms upon completion of the payment terms referenced in Paragraph 3.2 above. Approved invoices shall be paid within thirty (30) days from date of approval of the invoice. In the event of disputes and invoice is not approved, District shall notify Contractor within ten (10) days of receipt of the invoice.

3.4. Taxes. The Purchase Price is inclusive of any applicable taxes. The District, however, is a tax exempt entity except if the project makes additions and/or enhancements to real property.

3.5. Performance Bonds. Contractor shall provide a performance bond and a labor and materials payment bond upon award of this Agreement in the form acceptable to the District. The bonds shall be equal in amount to the total Purchase Price. The Surety of the bond shall remain in effect for one year after all acceptance of the entire project has been executed by the District.

Said bonds shall be provided by a Surety having a rating of A- or better from A. M. Best and Co.

and said Surety shall be authorized to do business in the State of Michigan. In the event that the Contractor fails to perform its obligations under any contract between the Contractor and the District, the performance bond shall be paid to the District. The Contractor further agrees to save and hold harmless District and agents from all liability and damages of every description in connection with any subsequent contracts with any third parties. The Contractor shall submit the performance bond to Forest Hills Public Schools within two weeks of the Effective Date of this Agreement or prior to the start of work, whichever comes first. This Agreement shall be unenforceable by Contractor against District until the terms of this section have been satisfied.

The cost of said bonds are included in the Purchase Price referenced in Section 3.1

3. 6 Purchase Quantities. The District reserves the right to adjust upward by two (2) times, or downward by twenty five (25%) percent, the quantities of items purchased without altering the unit purchase price upon award and throughout the contract period until final acceptance of the project.

3.7 Payment Disputes. Disputes regarding requests for payments will be communicated to Contractor by District, in writing, within ten (10) days of the receipt of invoice. Payments will not be delayed unless Contractor is unable to resolve the matter to District’s satisfaction ten (10) days prior to payment due date.

4. INSTALLATION AND ACCEPTANCE

4.1 Implementation Schedule. The Contractor shall install the System(s) in accordance with the Implementation Schedule that will be developed and agreed to by the parties within ten (10) days of the Effective Date. In the event that the Contractor fails to install the System(s) on or before the installation date set forth in the attached Implementation Schedule, and such delays are within the Contractor’s control, the Contractor shall pay liquidated damages in the amount of $200 per day for each day beyond the required completion date for that site. The Contractor shall deploy additional resources necessary to meet the schedule. In the event the Contractor is unable to adhere to the attached Implementation Schedule or complete the Implementation Schedule as attached, the District shall have the option to terminate this Agreement, award the remaining work to another contractor or re-negotiate a final completion date. In the event the District so terminates the Agreement and awards the remaining work to another contractor, the Contractor shall be responsible for and shall hold District harmless from any costs or fees to complete the project which exceed the amount of the Purchase Price. Any changes or

Forest Hills Public Schools Page 4 of 10 deviations to the Implementation Schedule caused by failure of the District or any third parties to meet the completion date set forth therein, shall result in a schedule adjustment in the same magnitude which shall be subject to the Contractor’s approval, which approval shall not be unreasonably withheld.

4.2 Project Manager. The Contractor designates <Project Manager Name> as on-site Project Manager for the duration of the project. Project Management will be within the guidelines as defined in the

RFP.

4.3 Legal Compliance. The Contractor shall comply fully with all federal, state and local laws, statutes, ordinances, rules, regulations and codes applicable to the work performed, the District's policies and procedures as well as all applicable provision of the Occupational Safety and Health Act. The Contractor shall be responsible for adhering to all local and state fire codes and shall be responsible for firestopping all penetrations utilized.

4.4 Employee Qualification. All Contractor employees shall be thoroughly experienced in the particular class of work in which they are employed. In the event District determines that Contractor’s staff are unqualified, unresponsive or otherwise unacceptable, Contractor will remove and replace said staff from the project in consultation with the District.

4.5 Status Meetings. The Contractor shall coordinate regular status meetings between the District Project Coordinator and the Contractor Project Manager as identified in the RFP, at which time a list of open items with targeted responsibility and due dates will be established.

4.6 Access to Sites. The Contractor will coordinate access to the Sites per the procedures outlined by the District.

4.7 Compliance with OSHA. Contractor shall comply with all applicable provisions of the Occupational Safety and Health Act throughout the duration of the project. Contractor shall also comply with all applicable laws, statutes, regulations, ordinances, codes, orders, rules and regulations in existence as of the date of this Agreement.

4.8 Testing. The Contractor shall perform all testing as to meet the specifications identified in the RFP and applicable bulletins.

4.9 Documentation. The Contractor shall provide all Documentation as required in the RFP and applicable bulletins.

4.10 Site Damage. The Contractor shall be responsible for restoring the physical Site to its original status if said damage is the result of the Contractor. The District shall determine whether the

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Contractor shall remedy the damage or a third party shall remedy the damage, to be compensated by the Contractor.

5. WARRANTY

5.1 Warranties on Equipment.

(A) The Contractor shall provide all warranties as identified in the RFP and the Contractor’s response to the RFP and all applicable bulletins and clarifications. All warranties are effective from the date of the System(s) Final Acceptance.

5.2 The Contractor Representations and Warranties. In addition to the warranties set forth above, the Contractor represents and warrants that:

(A) The Contractor possesses full power and authority to enter into this Agreement and to fulfill its obligations hereunder;

(B) The performance of the terms of this Agreement and of the Contractor’s obligations hereunder shall not breach any separate agreement by which the Contractor is bound; and

(C) The Contractor is financially sound to perform its obligations hereunder, and agrees that any material adverse change in such status shall be immediately communicated in writing to the District.

5.3 Warranty of Fitness for a Particular Purpose. The District has presented detailed technical specifications of the particular purpose for which the System(s) is intended. The District has provided detailed descriptions and criteria of how the System(s) can be defined to accomplish the particular purpose. The District has also defined the exact procedures and techniques to be employed in testing whether the System(s) has achieved the defined performance of this particular purpose. Given this advanced preparation concerning, and documentation about the District's particular purpose, the Contractor at the time this Agreement is in force has (1) reason and opportunity to know the particular purpose for which products are required, and (2) that the District is relying on the Contractor’s experience and knowledge of these products to provide those which are most suitable and appropriate. Therefore, the Contractor warrants that the System(s) is fit for the purposes for which it is intended as described in the Contract Documentation.

5.4 Warranty. The Contractor warrants that all components provided under this Agreement, whether installed initially or under subsequent purchase orders, shall be: newly manufactured equipment or assembled from newly manufactured parts; approved by Underwriter's Laboratories; and, will be free from defects in workmanship or material for a period as specified in the RFP, Contractor’s response to the RFP, and all bulletins and clarifications from the date of Final Acceptance. During this warranty period, the Contractor shall furnish all new replacement parts, shipping costs, repaired parts, service labor, travel costs, and other repair costs at no cost to the District. At the conclusion of the warranty period, the District will consider Contractor support under a separate maintenance agreement.

5.5 Acceptance of Installation.

(A) Within thirty (30) days of receipt of written notice from Contractor that installation and testing of the System(s) is completed, District shall either accept or reject such System(s) by written notice to Contractor. Failure to give written notice of acceptance or rejection of System(s) within thirty (30) day period shall constitute acceptance. Any rejection shall expressly state the deficiencies giving rise to the rejection. Upon rejection of the System(s) by District, the District shall provide Contractor with reasonable access to correct deficiencies identified, which correction shall be completed within ten (10) days of the date of access. Upon correction, Contractor again shall provide written notice to District that

Forest Hills Public Schools Page 6 of 10 installation and testing is completed and the acceptance/ rejection process set forth above shall be repeated. This procedure shall continue until the installation of the System(s) is accepted or finally rejected by District.

(B) Upon final rejection by District of the System(s), District may without prejudice to any other rights or remedies of District and after giving Contractor and Contractor’s surety seven (7) days written notice, terminate this Agreement with Contractor and may, subject to any prior rights of the surety take possession of the materials and finish the project by whatever method District may deem expedient. When District terminates this Agreement pursuant to this section, Contractor shall not be entitled to receive further payment until the project is finished. If the unpaid balance of the contract sum exceeds costs of finishing the project, such excess shall be paid to Contractor. If such costs exceed the unpaid balance, Contractor shall pay the difference to District. Nothing in Section 5.5 shall be construed to limit District’s legal or equitable remedies or under any warranty set forth below with respect to System(s).

5.6 Final Acceptance of the System(s). The System(s) proposed shall be defined to be finally accepted by District after meeting all requirements of the RFP and associated bulletins ("Final Acceptance"). The District or District’s representative shall be the sole judge of whether all conditions for Final Acceptance have been met.

6. TERMINATION

6.1 Right to Terminate on Breach. Each party shall have, in addition to all other remedies available to it, the right to terminate this Agreement immediately upon written notice to the other party that the other party has committed a material breach of any of its obligations herein and such material breach shall not have been cured or corrected within ten (10) days following written notice of the same.

6.2 Events upon Termination. Upon termination of this Agreement by either party for breach or default of the other party, each party shall be entitled to exercise any other right, remedy or privilege which may be available to it under applicable law or proceed by appropriate court action to enforce the terms of the Agreement or to recover damages for the breach of this Agreement.

Upon termination of this Agreement, the Contractor shall immediately provide the District with all current drawings and Documentation regarding this project.

7. GENERAL

7.1 Risk of Loss. The Contractor assumes all risk of loss or damage to the equipment prior to acceptance. Title to the equipment will pass at that time.

7.2 Governing Law. This Agreement shall be construed in accordance with, and its performance governed by, the laws of the State of Michigan.

7.3 Assignment. This Agreement and any interest herein may not be assigned or transferred, in whole or in part, by either party without the prior written consent of the other party, and any assignment or transfer without such consent shall be null and void.

7.4 Severability. If any provision of the Contract Documentation is held invalid or unenforceable, the remainder of the Contract Documentation shall nevertheless remain in full force and effect.

If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances.

7.5 Force Majeure. Timely performance is essential to the successful implementation and ongoing operation of the project described herein. Time is of the essence. However, neither party shall be liable for any loss or damage suffered by the other party, directly or indirectly, as a result of the first party's failure to perform, or delay in performing, any of its obligations contained in the

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Contract Documentation (except any obligations to make payments hereunder), where such failure or delay is caused by circumstances beyond the first party's control or which make performance commercially impracticable, including but not limited to, fire, flood, storm or other natural disaster, explosion, accident, war, riot, civil disorder, governmental regulations or restrictions of any kind or any acts of any government, judicial action, power failure, acts of God or other natural circumstances.

Force majeure shall not excuse performance unless:

(a) Within three (3) calendar days of the occurrence of force majeure, the party whose performance is delayed thereby shall provide the other party or parties with written notice explaining the cause and extent thereof, as well as a request for a time extension equal to the estimated duration of the force majeure events.

(b) Within seven (7) calendar days after the cessation of the force majeure event, the party whose performance was delayed shall provide the other party written notice of the time at which force majeure ceased and a complete explanation of all pertinent events pertaining to the entire force majeure situation.

Under no circumstances shall delays caused by a force majeure extend beyond one hundred-twenty (120) days from the scheduled delivery or completion date of a task, unless by prior to the one hundred-twenty (120) days written notice of permission of the other party has been provided. Failure to secure this written prior permission in the case of force majeure shall constitute default by the party failing to meet the requirement.

7.5.1 Right of Cancellation - Either party shall have the right to cancel this Agreement if Force Majeure suspends performance of scheduled tasks by one or more parties for a period of one hundred-twenty (120) or more days from the scheduled date of the task. If a cancellation due to a Force Majeure occurs the termination provisions under Section 6 shall govern.

7.6 Entire Agreement. This Agreement constitutes the entire agreement between the parties, supersedes all previous agreements, written or oral, and there are no understandings, representations or warranties of any kind, express, implied or otherwise, not expressly set forth herein.

7.7 Non-Waiver and Modification. Waiver by either party of any default or breach of any provision of the Contract Documentation by the other party shall not be construed as a waiver of any subsequent default or breach. No extension of time for payment or other accommodation granted to a party shall operate as a waiver of any of its rights under the Contract Documentation. No provision of the Contract Documentation may be modified by a party without the prior written consent of the other party.

7.8 Insurance. The Contractor agrees that it shall maintain Insurance as specified in Section 1.38 of the RFP throughout the term of this Agreement. Contractor will name District as an additional named insured under Contractor’s commercial general liability insurance policy. Contractor agrees to deliver to District either a duplicate original or certificate of all policies procured by Contractor in compliance with its obligations hereunder, together with evidence of payment thereof, and including an endorsement which states that such insurance may not be canceled except upon ten (10) days written notice to District.

7.9 Survival. All provisions of the Contract Documentation which, by their nature, should survive termination shall survive termination of this Agreement.

7.10 General Indemnification. The Contractor agrees to indemnify, hold harmless and defend the District, its Board and its Board members in their official and individual capacities, its successors, assignees, employees, contractors and agents from and against any and all claims, costs, Forest Hills Public Schools Page 8 of 10 expenses, damages, and liabilities, including reasonable attorney’s fees, arising out of the (i) negligent act or willful misconduct of the Contractor, its officers, directors, employees and agents, (ii) any breach of the terms of the Contract Documentation by the Contractor or (iii) any breach of any representation or warranty by the Contractor under the Contract Documentation.

District agrees to notify Contractor by certified mail, return receipt requested, immediately upon knowledge of any claim, suit, action, or proceeding for which it may be entitled to indemnification under this Agreement. Contractor shall have the sole right, but not the obligation, to control the defense of any such claim. District agrees to provide reasonable assistance to Contractor, at Contractor’s expense, in defense of same.

7.11 Shipping of Equipment. All shipping and insurance costs to and from the Site shall be included in the Contractor’s proposal. All payments to shipping agents and for insurance fees shall be made directly by the Contractor. The District shall make no payments to any firm concerning the shipment, installation and delivery of equipment which is not a part of the Contract Documentation and for which exact payments are not described. Contractor shall be responsible for all arrangements for the shipment and receipt of equipment to District prepared site. The Contractor shall provide all properly trained representatives to unpack all items of equipment and place this equipment in the proper locations. The Contractor shall also be responsible for removal of all debris and packing materials from the site resulting from the installation of the equipment. The District, at its option, may require the Contractor to provide certificates describing, to the satisfaction of the District, evidence of proper (as required by the State of Michigan) worker's compensation and liability insurance for all Contractor staff and representatives involved in the installation of the equipment. The District shall be named as an additional insured and as the Certificate Holder for all work under the Contract Documentation.

7.12 Non-Waiver of Agreement Rights. It is the option of any party to this Agreement to grant extensions or provide flexibilities to the other party in meeting scheduled tasks or responsibilities defined in the Contract Documentation. Under no circumstances, however, shall any parties to the Contract Documentation forfeit or cancel any right presented in the Contract Documentation by delaying or failing to exercise the right or by not immediately and promptly notifying the other party in the event of a default. In the event that a party to the Contract Documentation waives a right, this does not indicate a waiver of the ability of the party to, at a subsequent time, enforce the right. The payment of funds to the Contractor by District should in no way be interpreted as acceptance of the System(s) or the waiver of performance requirements.

7.13 Patents, Copyrights and Proprietary Rights Indemnification. The Contractor agrees to indemnify, hold harmless and defend, at its own expense, the District from any claim or suit brought against the District arising from claims of violation of United States patents or copyrights or claims of misappropriation or misuse of trade secrets resulting from the Contractor or the District use of any equipment, technology, Documentation, and/or data developed in connection with the Services and Systems described in the Contract Documentation. The District will provide the Contractor with a written notice of any such claim or suit. The District will also assist the Contractor, in all reasonable ways, in the preparation of information helpful to the Contractor in defending the District against this suit.

In the event that the District is required to pay monies, in defending such claims, resulting from the Contractor being uncooperative or unsuccessful in representing the District’s interest, or in the event that the District is ordered to pay damages as a result of a judgment arising out of an infringement of patents and/or copyrights, Contractor agrees to fully reimburse for all monies expended in connection with these matters. The District retains the right to offset against any

Forest Hills Public Schools Page 9 of 10 amounts owed Contractor any such monies expended by the District in defending itself against such claims.

Should a court order be issued against the District restricting the District's use of any product, and should the Contractor determine not to further appeal the claim issue, at the District’s sole option the Contractor shall provide, at the Contractor’s sole expense, the following:

(a) Purchase for the District the rights to continue using the contested product(s), or

(b) Provide substitute products to the District which are, in the District’s sole opinion, of equal or greater quality.

If (a) or (b) are not commercially feasible, Contractor will refund all monies paid to the Contractor for the product(s) subject to the court action. The Contractor shall also pay to the District all reasonable related losses related to the product(s) and for all reasonable expenses related to the installation and conversion to the new product(s).

7.14 Nondiscrimination by Contractor or Agents of Contractor. Neither the Contractor nor anyone with whom the Contractor shall contract shall discriminate against any person employed or applying for employment concerning the performance of the Contractor responsibilities under this Agreement. This discrimination prohibition shall apply to all matters of initial employment, tenure and terms of employment, or otherwise with respect to any matter directly or indirectly relating to employment concerning race, color, sex, religion, age, national origin, or ancestry.

A breach of this covenant may be regarded as a default by the Contractor of this Agreement.

7.15 Subcontractors. When using any subcontractors not stated in the Contractor’s response to the RFP, the Contractor must obtain written prior approval from the District for activities or duties to take place at the District’s site. In using subcontractors, the Contractor agrees to be responsible for all their acts and omissions to the same extent as if the subcontractors were employees of the Contractor.

7.16 Effect of Regulation. Should any local, state, or national regulatory authority having jurisdiction over the District enter a valid and enforceable order upon the District which has the effect of changing or superseding any term or condition of the Contract Documentation, such order shall be complied with, but only so long as such order remains in effect and only to the extent actually necessary under the law. In such event, the Contract Documentation shall remain in effect, unless the effect of the order is to deprive the District of a material part of its agreement with the Contractor. In the event this order results in depriving the District of materials or raising Districts costs beyond that defined in this Agreement, the District shall have the right to terminate this Agreement term upon thirty (30) days written prior notice to the Contractor.

Should this Agreement be terminated under such circumstances, the District shall be absolved of all penalties and financial assessments related to cancellation of this Agreement.

7.17 Non-Collusion Covenant. The Contractor hereby represents and agrees that it has in no way entered into any contingent fee arrangement with any firm or person concerning the obtaining of this Agreement. In addition, the Contractor agrees that a duly authorized Contractor representative will sign a non-collusion affidavit, in a form acceptable to District, which states that the Contractor firm has received from District no incentive or special payments, or considerations not related to the provision of System(s) and Services described in the Contract Documentation.

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IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the Effective Date as defined above.

DISTRICT: Forest Hills Public Schools CONTRACTOR:

BY: BY:

TITLE: TITLE:

DATE: DATE: