General Terms.pdf

I.GENERAL TERMS AND CONDITIONS

The headings below are for general reference purposes only and shall have no effect on the interpretation of these General Terms and Conditions.

A. Assignment. Contractor will not assign or otherwise transfer any of its rights, obligations, or interests in this contract without the written permission of the City.

B. Authorization to do Business in Virginia. Contractor is authorized to do business in Virginia as a domestic or foreign business entity under Title 13.1 or Title 50 of the Virginia Code, or as otherwise required by law. Contractor will not allow its existence to lapse or its certificate of authority or registration to do business in Virginia to be revoked or cancelled during the term of this contract. Contractor’s violation of this requirement shall be grounds for immediate termination of contract at no penalty to the City.

C. Child Labor. Contractor agrees that there shall be no forced or indentured child labor in the performance of this contract, and that this prohibition be included on every subcontract or purchase order over $10,000 in value, so that this prohibition will be binding upon each subcontractor or vendor.

For the purpose of this contract provision, “forced or indentured child labor” means all work or service (i) exacted from any person younger than 18 years of age under the menace of any penalty for the nonperformance of such work or service and for which such person does not offer himself or herself voluntarily or (ii) performed by any person younger than 18 years of age pursuant to a contract the enforcement of which can be accomplished by process or penalties.

D. Choice of Law, Venue. This contract is governed by Virginia law. The Circuit Court of the City of Fredericksburg, Virginia, is the exclusive venue for any litigation regarding this contract.

E. Claims. Contractor must notify the City in writing of its intention to file a claim at the time of the occurrence or beginning of the work upon which the claim is based.

All claims must be submitted less than 60 days after the final contract payment.

F. Complete Agreement. This Contract sets forth all of the promises, contracts, conditions, and understandings between the parties respecting the subject matter hereof an supersedes all prior and contemporaneous negotiations, conversations, discussions, correspondence, memoranda, and contracts between parties concerning such subject matter.

G. Default.

a. The City is in default 1) if it fails to pay any amount due to Contractor; or 2) upon any other material failure to comply with the terms of the contract. Contractor is in default upon any material failure to comply with the terms of the contract.

b. A party alleging that the other party is in default must provide the allegedly defaulting party with written notice specifying the alleged default and allow 30 days for the default to be cured.

c. Remedies for Default. If the City does not cure a default within 30 days after receiving notice, Contractor may a) terminate this contract, and b) exercise all remedies available at law. If the Contractor does not cure a default within 30 days after receiving notice, the City may a) terminate the contract, b) exercise all remedies available at law, and c) collect liquidated damages if available under Special Contract Terms. If the default is a failure to Provide required goods or services, the City may, upon written notice to Contractor, procure those goods or services from other sources and hold Contractor responsible for any resulting additional purchase and administrative costs.

H. Dispute Resolution. The parties will first endeavor to resolve any disputes, claims, or other matters in question between them through direct negotiations, and if direct negotiations fail, by non- binding mediation, with the exclusive venue of the mediation being the City of Fredericksburg. Should the dispute remain unresolved either (i) following negotiation and mediation, or (ii) more than 90 days after a party has requested mediation, either party may institute a lawsuit or chancery action, as appropriate, in Fredericksburg Circuit Court, and may pursue all available appeals in Virginia state courts, to the extent they have jurisdiction. Any agreement reached in mediation must be reduced to writing and executed by the parties; upon execution, the agreement will be enforceable as a settlement agreement.

I. Drug-Free Workplace. Contractor agrees to (i) provide a drug-free workplace for the contractor’s employees; (ii) post in conspicuous places, available to employees and applicants for employment, a statement notifying employees that the unlawful manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana is prohibited in Contractor’s workplace and specifying the actions that will be taken against employees for violating that prohibition; (iii) state in all solicitations or advertisements for employees placed by or on behalf of Contractor that Contractor maintains a drug-free workplace; and (iv) include the terms of this section in every subcontract or purchase order of over $10,000, so that the terms will be binding upon each subcontractor and vendor.

J. Ethics in Public Contracting. Contractor certifies that its offer is made without collusion or fraud and that it has not offered or received any kickbacks or inducements from any other offeror, supplier, manufacturer, or subcontractor and that it has not conferred on any public employee having official responsibility for this purchase any payment, loan, subscription, advance, deposit of money, services, or anything of more than nominal value, present or promised unless consideration of substantially equal or greater value was exchanged.

K. Faith-based Organizations. The City shall not discriminate against faith-based organizations. A faith-based organization contracting with the City (i) shall not discriminate against any recipient of goods, services, or disbursements on the basis of the recipient's religion, religious belief, or refusal to participate in a religious practice or on the basis of race, age, color, gender, sexual orientation, gender identity, or national origin and (ii) shall be subject to the same rules as other organizations that contract with the City to account for the use of the funds provided; however, if the faith-based organization segregates public funds into separate accounts, only the accounts and programs funded with public funds shall be subject to audit by the public body. Nothing in clause (ii) shall be construed to supersede or otherwise override any other applicable state law. Neither the City's selection of a charitable or faith-based provider of services nor the expenditure of funds under this contract is an endorsement of the provider's charitable or religious character, practices, or expression. (Va. Code § 2.2-4343.1)

L. Force Majeure. No party to this Agreement shall be liable or responsible to the other party for any failure, interruption, or delay in fulfilling any of its obligations under this agreement, due to events beyond the affected party’s control, including natural disaster, act of God, war, armed conflict, pandemic, epidemic, public health crisis, or state of emergency, provided that the affected party gives the other party prompt written notice of the occurrence of the event, stating the period of time the occurrence is expected to continue. The affected party shall use diligent efforts to end the failure, interruption, or delay and ensure the effects of the Force Majeure Event are minimized.

M. Freedom of Information Act. All records pertaining to this contract are open to inspection by the public under the Virginia Freedom of Information Act (Virginia Code § 2.2-3700 et. seq) unless specifically exempted under the Act (including records properly exempted under Code of Virginia § 2.2-4342).

N. Immigration. Contractor does not, and will not during the performance of this contract, knowingly employ an unauthorized alien as defined in federal Immigration Reform and Control Act of 1986. Contractor will register for and participate in the federal E-Verify Program if required to do so under Code of Virginia § 2.2-4308.2.

Contractor will provide the City with a copy of their E-Verify “Maintain Company” page to the City upon request. Failure to comply with E-Verify requirements subjects Contractor to automatic disbarment from City procurement until the requirements are met.

O. Indemnification. Contractor will save, defend, hold harmless, and indemnify the City, and all of its elected and appointed officials, officers, employees, agents, departments, agencies, boards, and commissions from and against any and all claims, losses, damages, injuries, fines, penalties, costs (including court costs and attorney's fees), charges, liability, or exposure, however caused, resulting from, arising out of, or in any way connected with Contractor's negligent acts, errors or omissions, recklessness or intentionally wrongful conduct of the Contractor in performance or nonperformance of its work under the contract. This indemnification survives the termination of the contract.

P. Insurance. Contractor and any subcontractors will maintain the following insurance coverage, provided by insurance companies authorized by the Virginia SCC to offer insurance in Virginia, during the entire term of the contract. Contractor will provide copies of its Certificates of Insurance to the City.

a. Workers’ Compensation—as required by law.

b. Employer’s Liability--$100,000.

c. Commercial General Liability--$1,000,000 per occurrence and $2,000,000 in the aggregate. The City must be named as an additional insured on this policy.

d. Automobile Liability-- $1,000,000 combined single limit, if any motor vehicle not owned by the City is to be used in performance of the contract.

Q. Licensing. Contractor will maintain all licenses and certifications required by applicable federal, state, and local governmental entities for provision of the goods and services to be provided under this contract.

R. Modifications. Contractor shall not require any employee or agent of the City other than the City Manager or Purchasing Agent to execute any additional contract, license, or other agreement pertaining to this contract. Only the City Manager or City Purchasing Agent may modify this contract on behalf of the City. Only the original signatory of the contract on behalf of Contractor, or another individual authorized in writing by Contractor to modify the contract, may modify the contract on behalf of Contractor. Modifications to this contract can only be authorized in accordance with Code of Virginia § 2.2-4309. Modifications can only be authorized by the following methods:

a. City and Contractor may agree in writing to modify the terms of the contract.

Any additional goods or services to be provided must be of a sort that is ancillary to, or within the same broad product or services categories as those provided for in the original contract.

b. The City may issue written change orders for changes such as services to be performed, methods of packing or shipping, and place of delivery or installation.

If Contractor determines that the change order will not necessitate a change in compensation or schedule, Contractor will comply with the change order upon receipt. If Contractor determines that the change order will necessitate a change in compensation or schedule, Contractor will notify the City of that determination and only proceed to comply with the change order upon the City’s written approval.

S. Non-Appropriation. All funds for payments after June 30 of the current fiscal year are subject to appropriation by the City Council. If Council does not appropriate the required funds, this contract and all obligations hereunder shall automatically terminate effective as of close of business on June 30 of the then-current fiscal year, with the exception that the City’s obligation to pay for goods or services received prior to such termination shall survive such termination. Non-appropriation shall not be grounds for recovery against the City.

T. Non-Discrimination.

a. Contractor will not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, age, disability, or other basis prohibited by state law relating to discrimination in employment, except where there is a bona fide occupational qualification reasonably necessary to the normal operation of the contractor. Contractor will post in conspicuous places, available to employees and applicants for employment, notices stating the terms of this section.

b. Contractor, in all solicitations or advertisements for employees placed by or on behalf of the contractor, will state that the contractor is an equal opportunity employer.

c. Notices, advertisements, and solicitations placed in accordance with federal law, rule, or regulation are sufficient for the purposes of this section.

d. Contractor will include the terms of this section in every subcontract or purchase order of over $10,000, so that the terms will be binding upon each subcontractor and vendor.

e. Contractor will conform to the Federal Civil Rights Act of 1964, the Virginia Fair Employment Contracting Act of 1975, the Virginians with Disabilities Act, and § 2.2- 4343.1E of the Virginia Public Procurement Act.

U. No Representation. Any payment the City makes to Contractor shall not be deemed to represent that the City has made an exhaustive or continuous inspection to confirm the work conforms to contract requirements. No payment by the City shall constitute an acceptance of any work that is defective or otherwise not in accordance with the contract.

V. Notices. Any notices pertaining to this contract must be sent by first-class mail to:

To the City:

Fredericksburg City Manager 715 Princess Anne Street Fredericksburg, Virginia 22401

To the Contractor:

The address listed on Contractor’s Quote Either party may change its address for notices by notifying the other party in writing of the change.

W. Payments to Contractor.

a. Contractor must provide its federal employer identification number and VA W-

9 to the City before requesting payment.

b. Contractor will submit itemized invoices, with appropriate documentation, to the City, at the payment address shown on the purchase order or contract. All invoices must show the City contract or purchase order number and Contractor’s federal employer identification number. No invoice may include any cost other than those listed in the contract or in an individual purchase order referencing the contract.

c. The City will pay invoices within 30 days of receipt. Any payment terms stated by Contractor requiring payment in less than 30 days will be regarded as requiring payment 30 days after the date of receipt of the invoice by the City or the date of delivery of the goods or services, whichever occurs last. This provision shall not affect offers of discounts for payment in less than 30 days.

d. Any invoice not paid within 30 days will accrue 1% interest per month. When payment is made by mail, the date of the postmark will be considered the date of payment. If offset proceedings have been instituted under the Virginia Debt Collection Act, the date of offset will be considered the date of payment.

e. Under certain emergency procurements and for most time and material purchases, final job costs cannot be accurately determined at the time an order is placed. In these cases, payments are contingent on the City’s determination that all invoiced charges are reasonable. The City will notify Contractor within 30 days of invoice of any charges it determines to be unreasonable. Payment for those charges will be suspended until a settlement is reached. Contractor will not take legal action concerning the charges unless a settlement is not reached within 30 days of notification.

X. Prime Contractor and Subcontractors. Contractor has prime responsibility for all services and goods to be provided under this contract, specifically including adequate supervision of work to be performed. This contract is only between Contractor and the City, and Contractor accepts full responsibility for the work performed and goods provided by, and the acts and omissions of, its subcontractors. Contractor will not subcontract for any part of this contract without the advance written permission of the City Purchasing Agent. Contractor will provide the names, qualifications, and experience of any proposed subcontractors to the City Purchasing Agent.

Y. Prime Contractor Payments to Subcontractors.

a. Contractors shall require their individual subcontractors to provide their social security numbers and proprietorship, partnership, and corporate subcontractors to provide their federal employee identification numbers.

Contractor will provide this information to the City upon request.

b. Contractor must include in its contracts with subcontractors a provision requiring each subcontractor to include or otherwise be subject to the same payment and interest requirements with respect to each lower tier subcontractor as that contained in this section.

c. Contractor will pay interest of 1% per month to subcontractors on all amounts owed to the subcontractors which have not been paid or withheld under the terms of this section.

d. Within 7 days after receipt of payment by the City for work performed by a subcontractor, Contractor shall a) pay the subcontractor for the proportionate share of the total payment received from the City attributable to the subcontractor’s work, or b) notify the City and the subcontractor, in writing, of Contractor’s intention to withhold payment and the reason for withholding the payment.

e. Notwithstanding the foregoing, for construction contracts in the event that the contractor has not received payment from the City for work performed by a subcontractor under such contract, contractor shall be liable for the entire amount owed to such subcontractor and to pay such subcontractor within 60 days of the receipt of an invoice following satisfactory completion of the work for which the subcontractor has invoiced. Such contractor shall not be liable for amounts otherwise reducible due to the subcontractor's noncompliance with the terms of the contract. However, in the event that the contractor withholds all or a part of the amount invoiced by the subcontractor under the terms of the contract, the contractor shall notify the subcontractor within 50 days of the receipt of such invoice, in writing, of his intention to withhold all or a part of the subcontractor's payment with the reason for nonpayment, specifically identifying the contractual noncompliance, the dollar amount being withheld, and the lower-tier subcontractor responsible for the contractual noncompliance. Payment by City shall not be a condition precedent to contractor’s obligation to pay lower-tier subcontractors. Any provision in a construction contract contrary to this section shall be unenforceable. Nothing in this subdivision shall be construed to (i) apply to or prohibit the inclusion of any retainage provisions in a construction contract or (ii) apply to contracts awarded solely for professional services as that term is defined in Va. Code § 2.2-4301 where the public body is contracting directly with an architectural and engineering firm.

Z. Records Retention. Contractor will retain all records related to this contract for 5 years after final payment or until audited by the City, whichever comes first. The City may inspect these records upon reasonable notice to Contractor.

AA. Relation to City. Contractor is an independent contractor of the City and shall not be deemed an agent of the City for any purpose whatsoever. This contract does not create an employment relationship between the City and Contractor or any of its employees.

BB. Renewal or Extension. The contract may be renewed only if provided for in the description of the contract term. If this contract is for services, it may be extended by written agreement of the parties only for the purpose to allow completion of any work undertaken but not completed during the original term of the contract.

CC. Severability. If any provision of this agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of the agreement remain in full force, if the essential terms and conditions of the agreement for each party remain valid, binding, and enforceable.

DD. Sovereign Immunity. Nothing in this Contract shall be construed as an express or implied waiver of the city’s sovereign or Eleventh Amendment immunity, as a political subdivision of the commonwealth.

EE. Strict Performance. The failure of a party to insist upon the other party’s strict performance of the terms of the contract is not a waiver of the right to insist upon strict performance of those terms at a later time.

FF. Survival. Contract provisions regarding indemnification and recovery of damages for deficient contract performance shall survive the completion or earlier termination of the contract.

GG. Tax Exemption. The City is exempt from State sales tax. State sale and use tax certificates of exemption will be issued upon request.

HH. Termination. The City may terminate this contract for any reason upon 30-day prior written notice to Contractor. The City will promptly pay all amounts already earned by Contractor and reasonable expenses incurred in reliance upon the contract, up to the effective date of the termination. Receipt of the notice does not affect Contractor’s obligations under the contract, including fulfillment of outstanding orders, up to the effective date of termination. The parties can, by written agreement, terminate this contract at any time.