The term "contractor", "sub-contractor", "vendor", "supplier" or "lessee" for the purpose of this document shall have the same meaning, and any reference to word "City", shall mean the City of Houston, Texas.
Acceptance
The "City" shall accept the item(s) on the twentieth (20th) business day after the date of receipt of the item(s) by the "City" unless prior to the twentieth (20th) day, the City of Houston Purchasing Agent or his/her designee delivers a notice to the "contractor" stating the reason(s) why the item(s) have not been accepted.
Amendment or Modification
Except as otherwise provided in this Contract, this Contract shall be subject to change, amendment or modification only by the mutual written consent of the parties hereto.
Applicable Laws
This Contract is made subject to the Constitution and laws of the State of Texas and the Charter and Ordinances of the "City". Any suit in connection with this Contact shall be in a court of competent jurisdiction in Harris County, Texas.
Captions
The captions at the beginning of the Articles of this Contract are guides and labels to assist in locating and reading such Articles, and shall not be restrictive of the subject matter of any article, section or part of this Contract.
Default
If the "contractor" fails to provide the Official Performance Bond (if required by the purchase order and/or change order), or the item(s) listed on the purchase order and/or change order at the unit prices quoted, the "City", at its option, may terminate this Contract for default by delivering a written notice to the "contractor", and the "City" shall have no further obligation under this Contract. At the City's option, through a notice to the "contractor" in writing from the City of Houston Purchasing Agent, the "contractor" may be allowed to cure such default within the time specified in said notice. In the event there is a failure to deliver any item(s), the "City" may cover its loss by reasonably procuring from another source the item(s) not delivered. The "contractor" shall be responsible for, and shall pay to the "City" immediately upon demand; the difference in price between that offered by the "contractor" and that which the "City" was forced to pay for covering the "contractor's" failure to deliver. Default by the "City" shall occur if the "City" fails to perform, or observe the terms and conditions of this Contract, and the "contractor" gives notice in writing to the "City" within thirty (30) days of the act or omission claimed by the "contractor". Upon receipt of such notice in writing from the "contractor", the "City" shall have thirty (30) days to cure such default.
Delivery
The "contractor" shall:
Deliver the item(s) specified on the purchase order and/or change order to the designated "FOB Point", within the time specified by the "City". Timely delivery is of the essence to this Contract.
Ensure all deliveries are made on a business day, during business hours (Monday through Friday, except City Council designated holidays, from 8:00 am, to 5:00 p.m.).
Provide, at no additional charge, any equipment, labor, packaging, crating or padding necessary to load, tie down and unload the item(s) to be delivered, so that they may be transported in a normal, safe manner without damage.
Be liable for all risks for the item(s) until accepted by the "City". The "contractor" is responsible for any freight charges incurred in delivering the item(s) to the "FOB Point." A representative of the "City" will sign the "contractor's" delivery ticket to acknowledge receipt of the item(s) by the "City". Unless the "contractor" receives such signature, the "City" shall not be responsible for the receipt of the item(s). The "City" retains the right to inspect the delivered item(s) prior to acceptance, and shall not accept item(s) that do not conform to the requirements of this Contract.
In the event the item(s) on the face of the purchase order and/or the change order are services rather than goods, such services shall be performed in accordance with the specifications, or scope of work, and the "City" reserves the right to require the "contractor" to provide service(s) in conformance with such description prior to accrual of the City's obligation for payment.
Equal Opportunity Ordinance
The "contractor" is and represents to be an equal opportunity employer and agrees to abide by the terms of the "City" of Houston Equal Opportunity Ordinance as follows:
The "contractor", "sub-contractor", "vendor", supplier, or "lessee" will not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, or age. The "contractor", "sub-contractor", "vendor", "supplier", or "lessee" will take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, religion, color, sex, national origin, or age. Such action will include, but not limited to: employment; upgrading; demotion or transfer; recruitment advertising; layoff or termination; rates of pay or other forms of compensation and selection for training, including apprenticeship. The "contractor", "sub-contractor", "vendor", "supplier", or "lessee" agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the "City" setting forth the provisions of this Equal Employment Opportunity Clause.
The "contractor", "sub-contractor", "vendor", "supplier", or "lessee" states that all qualified applicants will receive consideration for employment without regard to race, religion, color, sex, national origin or age.
The "contractor", "sub-contractor", "vendor", "supplier", or "lessee" will send to each labor union or representative of workers with which it has s collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer advising the said labor union or workers representative of the "contractor's" and "sub-contractor's" commitments under Section 202 of Executive Order No. 11246, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
The "contractor", "sub-contractor", "vendor", "supplier", or "lessee" will comply with all provisions of Executive Order No. 11246 and the rules, regulations, and applicable orders of the Department of Labor or other Federal Agency responsible for enforcement of applicable equal opportunity and affirmative action provisions and will likewise furnish all information and reports required by the Mayor and/or "contractor" Compliance Officer(s) for purposes of investigation to ascertain and effect compliance with this program.
The "contractor" shall tile and shall cause each of his "sub-contractor's", if any, to file compliance reports with the "City" in the form and to the extent as may be prescribed by the Mayor. Compliance reports filed at such times as directed shall contain information as to the practices, policies, programs, and employment policies and employment statistics of the "contractor" and each "sub-contractor".
The "contractor", "sub-contractor", "vendor", "supplier", or "lessee" will furnish all information and reports required by Executive Order No. 11246, and by the rules, regulations, and orders of the Department of Labor, or pursuant thereto, and will permit access to all books, records, and accounts by the appropriate "City" and Federal Officials for purposes of investigations to ascertain compliance with such rules, regulations, and orders. Compliance reports filed at such times as directed shall contain information as to the employment practice policies, program, and workforce statistics of the "contractor", "sub-contractor", "vendor", "supplier", or "lessee".
In the event of the "contractor's", "sub-contractor's", "vendor's", "supplier's", or "lessee's" noncompliance with the non-discrimination clause of this contract or with any of such rules, regulations, or orders, this contract may be cancelled, terminated, or suspended in whole or in part, and the "contractor", "sub-contractor", "vendor", "supplier", or "lessee" may be declared ineligible for further "City" contracts in accordance with procedures provided in Executive Order No. 11246, and such other sanctions may be imposed and remedies invoked as provided in the said Executive Order, or by rule, regulation, or order of the Secretary of Labor, or as may otherwise be provided by law.
The "contractor" shall include the provisions of paragraphs 1-6 of this Equal Employment Opportunity Clause in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order No. 11246 of September 24, 1965, so that such provisions will be binding upon each "sub-contractor" or "vendor". The "contractor" will take such action with respect to any "sub-contractor" or purchase order as the contacting agency may direct as a means of enforcing such provisions, including sanctions for noncompliance: provided, however, that in the event the "contractor" becomes involved in, or is threatened with, litigation with a "sub-contractor" or "vendor" as a result of such direction by the contracting agency, the "contractor" may request the United States to enter into such litigation to protect the interests of the United States.
Firm Price
The price(s) specified on the face of the purchase order and/or the change order is firm, and may not be increased or supplemented on the "contractor's" invoice.
Force Majeure
Timely performance by the "contractor" is essential to this Contract. However, the "contractor" will not be liable for delays in performing its obligations to the extent such delays are caused by unforeseeable conditions that are beyond the "contractor's" reasonable control, and that are without "contractor's" fault or negligence, subject to the following provisions: Acts of God such as storms or floods, as cell as judicial restraints, acts of law-enforcement or military authorities, fires, epidemics, war or riot are examples of events that might be excusable as being beyond the "contractor's" reasonable control: however, no time extension because of an excusable shall ever be allowed unless: (a) within seven (7) calendar days of the commencement of any excusable delay, "contractor" shall provide "City" with written notice of the cause and extent thereof as well as a request for a time extension equal to the estimated duration thereof; and (b) within seven (7) calendar days of the cessation of the event causing delay, "contractor" shall provide "City" with written notice of the actual delay incurred, upon receipt of which, the time for "contractor's" performance shall be extended for the time actually lost by reason of an excusable delay.
Indemnification
"vendor" covenants and warrants that it will protect, defend, and hold harmless the "City", its employees, officers, and legal representatives (collectively the "City") from any and all third party claims, demands, and liability, including defense costs, relating in any way to damages, claims, or fines arising by reason of or in connection with "vendor's actual or alleged negligence or other actionable performance or omission of the "vendor" in connection with or during the performance of the duties under this agreement. "vendor" further covenants and agrees to protect, defend, indemnify and hold harmless the "City" from all claims, allegations, fines, and damages relating in any way to the actual or alleged joint and/or concurrent negligence of the "City" and "vendor", whether the "vendor" is immune from liability or not.
It is the expressed intention of the parties hereto, that the indemnity provided herein is an agreement by the "vendor" to indemnify and protect the "City" from the City's own negligence where said negligence is an alleged or actual cause of any alleged third-party harm.
The indemnity provision provided herein shall have no application to any claim or demand where bodily injury, death, or damage results from the sole negligence of the "City", unmixed with any fault of another party or entity, including the "vendor".
Notwithstanding, anything herein to the contrary, the liability of the "vendor" under this indemnity provision shall not exceed $600,000 per occurrence.
Independent "contractor"
In performing its obligations under this Contract, the "contractor" shall act as an independent "contractor" solely for his own account and not as an agent, representative or employee of the "City". No employee, agent, or representative of the "contractor" shall be considered an employee of the "City" nor be eligible for any benefits, rights or privileges afforded to "City" employees.
Invoices and Payment
The "contractor" shall submit an invoice in triplicate to the addresses specified on the purchase order and/or change order, no later than thirty (30) days after the date of receipt of the item(s) or service(s) by the "City". At a minimum, each invoice will contain the:
1.
Purchase order number;
2.
"contractor's" name and address;
3.
Description of the item(s) delivered;
4.
Exact quantity of each item delivered;
5.
Date of delivery to the "City";
6.
Unit price for each item, if a unit price was offered by the "contractor";
7.
Total amount of the charge(s) for the item(s) delivered, which amount shall not exceed the amount of the purchase order; and the
8.
Name of the City Department that requested the item(s) or service(s).
The "City" shall pay the "contractor" either the lump sum for the item(s) or, if unit prices are specified, the unit price per item for each item multiplied by the number of units actually delivered and received and accepted by the "City". The "City" shall never be obligated to pay a sum greater than the segregate price offered for the item(s). The unit price shall control in the event of a conflict. Payment is due thirty (30) days after the "City" has approved the invoice or after the "City" has accepted the goods, whichever occurs later.
Rejection
In the event the "City" rejects any item(s), the "contractor" shall have ten (10) days after receipt of notice of such rejection to replace any item(s) with replacements which conform to this Contract, at no additional cost to the "City".
"Sub-contractors" and Suppliers
If the "contractor" receives payment from the "City" for work performed by any "sub-contractor(s)", or for materials provided by any "supplier(s)", and the "contractor" withholds or has withheld payment to the "sub-contractor(s)" or "supplier(s)" on account of a deficiency in the quality or quantity of that "sub-contractor's" or "supplier's" work or materials, the "City" may withhold the amount associated with such work or materials from any pending or future payments to the "contractor" until the next regular payment to the "contractor" occurring after the "City" receives reasonable documentation that the deficiency has been remedied.
Successors and Assigns
This Contract shall bind and benefit the respective parties end their legal successors, and shall not be assignable, in whole or in part, by any party hereto without first obtaining the written consent of the other party. This provision is not intended to limit the "contractor's" ability to assign receivables under this Contract, but only applies to performance of the Contract. Nothing herein shall be construed as creating any personal liability on the part of any officer or agent of the "City".
Tax Exempt Status
The "City" is exempt from the Federal Excise and Transportation Tax, and the limited Sales and Use Tax. Unless the "City" of Houston Bid Form or specifications specifically indicates otherwise, the price bid must be net exclusive of above mentioned taxes. A "vendor" desiring refunds of, or exemptions from taxes paid on the item(s) accepted by the "City", must submit the proper forms, and the City of Houston Purchasing Agent, if satisfied as to the facts, and will issue the necessary certificate.
Warranties - Guarantees
The "contractor" warrants that each item delivered will (1) be new (unless otherwise specified on the face of the purchase order, change order or specifications), free from liens and defects in design, materials, workmanship and defects in title (including any defect in the "contractor's" right to sell a patented or copyrighted product or to use a patented process), (2) conform in all respects to the terms of the purchase order, change order or specifications, and (3) be of the best quality, if no specific quality is established in the specification(s). If within one (1) year from the date of acceptance by the "City", it appears that an item, or any commercial unit thereof, does not conform to these warranties, and the City of Houston Purchasing Agent notifies the "contractor" within a reasonable amount of time after discovery, the "contractor" shall correct such nonconformity to the satisfaction of the City of Houston Purchasing Agent at the "contractor's" expense.
Should this occur, the "City" may revoke acceptance, and purchase substitute item's correcting the nonconformity. The cost of the substitute item(s) correcting any nonconforming item(s) shall be borne by the "contractor".
Additionally, the "contractor" shall transfer to the "City" any manufacturer's warranty which it has for the item(s).
