HomeMy Public PortalAboutAmano Parking Meters STATE OF GEORGIA )
COUNTY OF CHATHAM )
AGREEMENT FOR SERVICES
THIS AGREEMENT FOR services relating to the Multi-space parking meters and related software
in the City of Tybee Island, Georgia, also identified as"Pay and Display Parking System and
Meter Management System," hereinafter referred to as"Agreement", is made and entered into
as of the day of , 2014 (the "Date Hereof"), by and between Amano
McGann, Inc., whose agent and address for purposes of this agreement is Todd Townsend,
2915 Courtyards Drive Suite B Norcross, GA 30071, hereinafter referred to as"the Company,"
and THE CITY OF TYBEE ISLAND, a municipality, whose address for the purposes of this
Agreement is 403 Butler Avenue, P. 0. Box 2749, Tybee Island, Georgia 31328, herein referred
to as"the City."
WITNESSETH THAT:
WHEREAS, the City is a municipal corporation organized under Georgia law; and
WHEREAS, the City desires replace existing pay and display parking meters throughout the
island; and
WHEREAS, the Company, in conjunction with other entities identified herein, operating under
the laws of the State of Georgia, are engaged in supplying the products and services to replace
the existing pay and display meters and meter management system; and
WHEREAS, the City has solicited requests for proposals relating to the Work; and
WHEREAS, the Company has submitted the attached proposal; and
WHEREAS, the Company and City desire to document the terms and conditions of their
Agreement.
NOW, THEREFORE, for and consideration of the mutual covenants contained herein, the receipt
and sufficiency of which is hereby acknowledged, it is agreed as follows:
ARTICLE 1
BASIC AGREEMENT
1.1 The Company will perform the Scope of Work ("the Work") described in RFP No. 2014-
53 City of Tybee Island, Georgia ("RFP"), attached hereto and incorporated by reference as if
illy set forth herein (Exhibit "A"), and supply all materials in connection therewith for a total
dm of four hundred and eighty six dollars ($486,000.00) ("the price") and will perform all
reparatory and clean-up work associated therewith pursuant to the terms of the RFP and the
ompany's proposal, attached hereto and incorporated by reference as if fully set forth herein
d Exhibit"B".
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1.2 The Company will provide payment and performance bonds in the amount of the total
agreement plus ten percent issued by an insurer or surety licensed and authorized in Georgia
and provide proof of liability coverage with a minimum liability amount for comprehensive
general liability and automobile liability of not less than $2,000,000.00. The Company shall
maintain worker's compensation insurance equal to the statutory requirements. The insurance
certificates shall name the City of Tybee Island as additional insured.
1.3 The Company and all of its subcontractors will comply with the necessary requirements
of all State and Federal law pertaining to the residency of its workers and will further comply
with all reporting requirements required of City contractors pursuant to the grant under which
proceeds are being made available to the City and expressly recognizes that any breach on its
part of the reporting and other requirements under such grant will result in potential liabilities
to the City and the Company will indemnify and hold harmless the City for any such damages in
addition to all other indemnity obligations contained herein or the terms and conditions
attached hereto.
1.4 The Company shall perform work in accordance with the following schedule:
(1) Not later than fifteen (15) weeks from the date of the countersignature of the
Agreement, the Company shall commence with the Work;
(2) The Work, and all preparatory and clean up shall be completed not later than 21
weeks from the date of the countersignature on this Agreement.
1.5 In the event the Company fails to satisfy or complete the entire work contemplated and
provided for under this agreement on or before the date of completion described herein, the
City shall deduct five hundred dollars ($500.00) for each day past the completion date from the
payment due the Company, which sum is agreed upon not as a penalty, but as fixed and
liquidated damages for each day of such duration, to be paid in full and subject to no
deduction. If the payments due the Company are less than the amount of such liquidated
damages, said damages shall be deducted from any other monies due or to become due the
Company, and in case damages shall exceed the amount of all monies due or to become due
the Company, then the Company or its surety shall pay the balance due under.
1.6 After cleaning up the Work premises, adjacent property, streets, alleys, and other areas
or structures in any way connected with the performance of the agreement, the Work as a
whole shall be observed by a representative of the City. Any workmanship or materials found
not meeting the requirements of the agreement shall be removed by and at the expense of the
Company good and satisfactory workmanship or material substituted therefore. All settlement,
defects, or damage upon any part of the Work shall be remedied and made good by the
Company.
1.7 If the Company fails to complete the Work under this agreement within the time
specified, or fails to perform the Work with sufficient workmen and equipment or with sufficient
materials to ensure the completion of said work within the specified time, or shall perform the
Work unsuitably or shall neglect or refuse to remove material or perform new work, or shall
discontinue the prosecution of the Work, or if the Company shall become insolvent or be
declared bankrupt, or commit any act of bankruptcy or insolvency, or shall make an assignment
for the benefit of creditors, or from any other cause whatsoever shall not carry the Work in an
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acceptable manner or shall fail to maintain at all times the bonds and insurance herein required,
the City shall give notice in writing to the Company and its surety by registered mail of such
delays, neglect, or default, specifying the same, and if the Company, within a period of ten (10)
days after such notice, shall not proceed in accordance therewith, then the City shall, upon
written certificates from its Manager of the fact that such delays, neglect, or default of the
Company's failure to comply with such notice, shall have full power and authority without
violating the agreement, to take the prosecution of the Work out of the hands of the Company,
to take and utilize any or all materials and equipment as may be suitable and acceptable and
may enter into an agreement for the completion of said agreement according to the terms and
provisions thereof, or such other methods as, in its opinion, shall be required for the completion
of said agreement in an acceptable manner. If costs and charges incurred by the City are less
than the sum which would have been payable under the agreement, if it had been completed
by said Company, then said Company shall be entitled to receive the difference. In case such
expenses shall exceed the sum which would have been payable under the agreement, then the
Company and the surety shall be liable and shall pay to the City the amount of such excess.
ARTICLE 2
MATERIAL AND WORKMANSHIP
2.1 All equipment, material, and articles furnished under this agreement shall be new and of the
most suitable grade for the purpose intended, unless otherwise specifically provided in this
Agreement. References in the Agreement to equipment, material, articles, or patented processes by
trade name, make, or catalog number, shall be regarded as establishing a standard of quality and
shall not be construed as limiting competition. The Company may, at its option, use any
equipment, material, article, or process that, in the judgment of, and as approved by the Contract
Administrator, is equal to that named in the specifications, unless otherwise specifically provided
in this agreement.
2.2 (a) The Company shall obtain the Contract Administrator's approval of the machinery and
mechanical and other equipment to be incorporated into the Work. When requesting approval, the
Company shall furnish to the Contract Administrator the name of the manufacturer, the model
number, and other information concerning the performance, capacity, nature, and rating of the
machinery, and mechanical and other equipment. When required by this agreement or by the
Contract Administrator, the Company shall also obtain the Contract Administrator's approval of
the material or articles which the Company contemplates incorporating into the Work.
(b) When requesting approval, the Company shall provide full information concerning the
material or articles. Machinery, equipment, material, and articles that do not have the required
approval shall be installed or used at the risk of subsequent rejection.
(c) When required by the specifications or the Contract Administrator, the Company shall
submit appropriately marked samples (and certificates related to them)for approval at the
(d) Company's expense, with all shipping charges prepaid. The Company shall label, or
otherwise properly mark on the container, the material or product represented, its place of origin,
the name of the producer, the Company's name, and the identification of the construction project
for which the material or product is intended to be used.
(e) Certificates shall be submitted in triplicate, describing each sample submitted for
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approval and certifying that the material, equipment or accessory complies with agreement
requirements. The certificates shall include the name and brand of the product, name of
manufacturer, and the location where produced.
(f) Approval of a sample shall not constitute a waiver of the City's right to demand full
compliance with agreement requirements. Materials, equipment and accessories may be rejected for
cause even though samples have been approved.
ARTICLE 3
WARRANTIES
3.1 In addition to any other warranties in this agreement, the Company warrants,
except as provided in paragraph 3.9 of this agreement, that work performed under this
agreement conforms to the agreement requirements and is free of any defect in equipment,
material, or workmanship performed by the Company or any subcontractor or supplier at
any tier. This warranty shall continue for a period of two years from the date of final
acceptance of the Work. If the City takes possession of any part of the Work before final
acceptance, this warranty shall continue for a period of two years from the date that the
City takes possession.
3.2 The Company shall remedy, at the Company's expense, any failure to conform,
or any defect. In addition, the Company shall remedy, at the Companys expense, any damage
to City-owned or controlled real or personal property when the damage is the result of—
(1) The Companys failure to conform to agreement requirements; or
(2) Any defects of equipment, material, workmanship or design furnished by the
Company.
3.3 The Company shall restore any work damaged in fulfilling the terms and
conditions of this clause. The Company's warranty with respect to work repaired or
replaced will run for (one year unless otherwise indicated) from the date of repair or
replacement.
3.4 The Contract Administrator shall notify the Company, in writing, within a reasonable
time after the discovery of any failure, defect or damage. If the Company fails to remedy
any failure, defect, or damage within a reasonable time after receipt of notice, the City
shall have the right to replace, repair or otherwise remedy the failure, defect, or damage
at the Companys expense.
3.5 With respect to all warranties, express or implied, from subcontractors,
manufacturers, or suppliers for work performed and materials furnished under this
agreement, the Company shall:
(1) Obtain all warranties that would be given in normal commercial practice;
(2) Require all warranties to be executed in writing, for the benefit of the City; and,
(3) Enforce all warranties for the benefit of the City.
3.6 In the event the Company's warranty under paragraph 3.1 has expired, the City
may bring suit at its own expense to enforce a subcontractor's warranty,
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3.7 Company shall not be liable for the repair of any defect of material or design furnished by
the City or for the repair of any damage(s)that result(s)from any defect in City-furnished material or
design.
3.8 Notwithstanding any provisions herein to the contrary, the establishment of the time periods
in paragraphs 3.1 and 3.3 above relate only to the specific obligation of the Company to correct the
Work, and have no relationship to the time within which its obligation to comply with the
agreement may be sought to be enforced, nor to the time within which proceedings may be
commenced to establish the Company's liability with respect to its obligation other than specifically
to correct the Work.
3.9 This warranty shall not limit the City's rights with respect to latent defects, gross mistakes or
fraud.
3.10 The Company warrants good title to all materials, supplies and equipment incorporated
in the Work and agrees to deliver the premises together with all improvements thereon free
from any claims, liens or charges, and agrees further that neither it nor any other person, firm
or corporation shall have any right to a lien upon the premises or anything appurtenant thereto.
ARTICLE 4
COVENANTS AND REPRESENTATIONS
4.1 The Company shall perform professional services in accordance with the Company's
Proposal and Terms and Conditions contained in the agreement and contained herein.
4.2 To induce the City to enter into this Agreement, the City shall be entitled to rely upon
the representations and certifications made by the Company in the Company's Proposal, without
independent investigation and verification, and each such representation or certification shall be
deemed to be material to this Agreement. The person negotiating and executing this Agreement
on behalf of the Company has the full right, power, and authority to enter into, execute and
perform this Agreement in accordance with the terms hereof, and when executed and
delivered, this Agreement will constitute a valid and binding obligation of the Company and will
be enforceable in accordance with the terms thereof.
ARTICLE 5
PAYMENT AND FEES
5.1 The City shall pay the Company the price as provided in this agreement.
5.2 The City shall make progress payments approximately every 30 days as the Work
proceeds, on estimates of work accomplished which meets the standards of quality
established under the Agreement, as approved by the Contract Administrator.
5.3 Before the first progress payment under this agreement, the Company shall furnish, in
such detail as requested by the Contract Administrator, a breakdown of the total agreement
price showing the amount included therein for each principal category of the Work, which
shall substantiate the payment amount requested in order to provide a basis for determining
progress payments. The breakdown shall be approved by the Contract Administrator and must
be acceptable to the City. If the agreement covers more than one project, the Company
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shall furnish a separate breakdown for each. The values and quantities employed in
making up this breakdown are for determining the amount of progress payments and shall
not be construed as a basis for additions to or deductions from the agreement price. The
Company shall prorate its overhead and profit over the construction period of the agreement.
5.4 The Company shall submit periodic estimates and pay applications showing the value of
the Work performed during each period based upon the approved breakdown of the
agreement price. Such estimates shall be submitted not later than 30 days in advance of
the date set for payment and are subject to correction and revision as required. The
estimates must be approved by the Contract Administrator.
5.5 Along with each request for progress payments and the required estimates, the
Company shall furnish the following certification, or payment shall not be made:
General Contractor Certification
I hereby certify, to the best of my knowledge and belief,that:
The amounts requested are only for performance in accordance with the
specifications, terms, and conditions of the agreement;
Payments to subcontractors and suppliers have been made from previous
payments received under the agreement, and timely payments will be made
from the proceeds of the payment covered by this certification, in
accordance with subcontractor agreements; and,
This request for progress payments does not include any amounts which the
General Contractor intends to withhold or retain from a subcontractor or
supplier.
Name:
Title:
Date:
Signature:
5.5 The City shall retain ten (10) percent of the amount of progress payments until
completion and acceptance of all work under the agreement; except, that if upon completion
of 50 percent of the Work, the Contract Administrator determines that the Company's
performance and progress are satisfactory, the City may make the remaining payments in full
for the Work subsequently completed. If the Contract Administrator subsequently determines
that the Company's performance and progress are unsatisfactory, the City shall reinstate
the ten (10) percent (or other percentage as provided in State law) retainage until such time
as the Contract Administrator determines that performance and progress are satisfactory.
5.6 The Contract Administrator may authorize material delivered on the site and
preparatory work done to be taken into consideration when computing the progress payments.
Material delivered to the Company at locations other than the site may also be taken into
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consideration if the Company furnishes satisfactory evidence that (1) it has acquired title to
such material; (2) the material is properly stored in a bonded warehouse, storage yard, or
similar suitable place as may be approved by the Contract Administrator; (3) the material is
insured to cover its full value; and (4) the material will be used to perform this agreement.
Before any progress payment which includes delivered material is made, the Company shall
furnish such documentation as the Contract Administrator may require to ensure the
protection of the City's interest in such materials. The Company shall remain responsible for
such stored material notwithstanding the transfer of title to the City.
5.7 All material and work covered by progress payments made shall, at the time of
payment become the sole property of the City, but this shall not be construed as (1) relieving
the Company from the sole responsibility for all material and work upon which payments
have been made or the restoration of any damaged work; or, (2) waiving the right of the
City to require the fulfillment of all of the terms of the agreement. In the event the Work of the
Company has been damaged by other subcontractors, or persons other than employees of
the City in the course of their employment, the Company shall restore such damaged work
without cost to the City and to seek redress for its damage only from those who directly
caused it.
5.8 The City shall make the final payment due the Company under this agreement after;
(1) completion and final acceptance of all work; and (2) presentation of release of all claims
against the City arising by virtue of this agreement, other than claims, in stated amounts,
that the Company has specifically excepted from the operation of the release. Each such
exception shall embrace no more than one claim, the basis and scope of which shall be
clearly defined. The amounts for such excepted claims shall not be included in the request for
final payment. A release may also be required of the assignee if the Company's claim to
amounts payable under this agreement has been assigned.
5.9 Prior to making any payment, the Contract Administrator may require the Company to
furnish receipts or other evidence of payment from all persons performing work and
supplying material to the Company, if the Contract Administrator determines such
evidence is necessary to substantiate claimed costs.
5.10 The City shall not; (1) determine or adjust any claims for payment or disputes arising
there under between the Company and its subcontractors or material suppliers; or, (2)
withhold any moneys for the protection of the subcontractors or material suppliers. The
failure or refusal of the City to withhold moneys from the Company shall in no way
impair the obligations of any surety or sureties under any bonds furnished under this
agreement.
5.11 Notwithstanding the other provisions related to Payment and payment terms contained
herein, at the Owner's discretion, the Owner may enter into an Owner financing arrangement
whereby the Owner will pay to the Company $8,998.00 per month for sixty (60) months and
more specifically as follows:
(a) Of the $8,998.00 payment, $8,100.00 shall be applied as principal and $898.00 as
interest.
(b) There shall be no penalty or interest should the City elect to pre-pay any outstanding
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balance.
(c) In the event the City pays off the balance, the only payment authorized in addition
to the principal agreed upon is the interest on previous payments made, and the
Company is entitled to retain that interest as interest and it shall not be applied to
the principal balance.
ARTICLE 6
CONTINGENCIES
6.1 The obligations of the City are subject to the following conditions:
(1) The ability of the City to carry out the terms of this Agreement in accordance with
the laws and Constitution of the State of Georgia.
(2) The timely performance by the Company of each and every covenant, agreement,
and obligation imposed upon the Company in this Agreement.
(3) The truth and accuracy as of the Date Hereof of each and every representation
made by the Company.
(4) This Agreement is expressly made subject to other laws affecting its subject matter.
In the event of any conflict between such laws and this Agreement, such laws shall take
precedence.
6.2 The obligations of the Company are subject to the following conditions:
(1)The timely performance by the City of each and every covenant, agreement, and
obligation imposed upon the City in this Agreement.
ARTICLE 7
NOTICES
7.1 All notices, demands or requests required or permitted to be given pursuant to this
Agreement shall be in writing and given or served either in person or by United States Mail,
postpaid, registered or certified with Return Receipt Requested, showing the name of the
recipient and the date of delivery. Notices shall be addressed to the parry or parties identified
and at the address as set forth in the introductory paragraph of this Agreement, and the date
upon which such notice is delivered shall be deemed the effective date thereof. Either party
may, from time to time, by five (5) days' prior written notice to the other party, specify a
different agent or address to which notices can be delivered. Rejection or other refusal to
accept a notice or inability to deliver a notice because of a changed agent or address of which
no notice was given shall constitute receipt of the notice on the date when personal service is
attempted or the date of the postmark, if mailed.
ARTICLE 8
RIGHTS CUMULATIVE
8.1 All rights, powers, and privileges conferred hereunder shall be cumulative and not
restrictive of those given by law.
ARTICLE 9
NON-WAIVER
9.1 No failure of the City to exercise any right or power given to the City under this
agreement, or to insist upon strict compliance by the Company with the provisions of this
agreement, and no custom or practice of the City or the Company at variance with the terms
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and conditions of this Agreement, shall constitute a waiver of the City's right to demand exact
and strict compliance with the terms and conditions of this Agreement.
ARTICLE 10
CONTINUITY
10.1 Each of the provisions of this agreement shall be binding upon and inure to the benefit
and detriment of the Company and the City and the heirs, devisees, legatees, legal
representatives, successors and assigns of the Company and the City.
ARTICLE 11
CONTRACT MODIFICATIONS
11.1 (a) Only the Contract Administrator has authority to modify any term or condition of
this contract. Any contract modification shall be authorized in writing.
(b) The Contract Administrator may modify the contract unilaterally (1) pursuant to a
specific authorization stated in a contract clause (e.g., Changes); or (2) for administrative
matters which do not change the rights or responsibilities of the parties (e.g., change in the
City's address). All other contract modifications shall be in the form of supplemental agreements
signed by the Company and the Contract Administrator.
(c) When a proposed modification requires the approval of the Tybee Island City
Council prior to its issuance (e.g., a change order that exceeds the Contract Administrator's
approved threshold), such modification shall not be effective until the required approval is given
by the Tybee Island City Council.
ARTICLE 12
CHANGE ORDERS
12.1 (a) The Contract Administrator may, at any time, without notice to the sureties, by
written order designated or indicated to be a change order, make changes in the work within
the general scope of the contract including changes:
(1) In the specifications (including drawings and designs); and
(2) In the method or manner of performance of the work.
(b) Any other written order or oral order (which, as used in this paragraph (b), includes
direction, instruction, interpretation, or determination) from the Contract Administrator that
causes a change shall be treated as a change order under this clause; provided, that the
Company gives the Contract Administrator written notice stating (1) the date, circumstances
and source of the order and (2) that the Company regards the order as a change order.
(c) Except as provided in this clause, no order, statement or conduct of the Contract
Administrator shall be treated as a change under this clause or entitle the Company to an
equitable adjustment.
(d) If any change under this clause causes an increase or decrease in the Company's
cost of, or the time required for the performance of any part of the work under this Agreement,
whether or not changed by any such order, the Contract Administrator shall make an equitable
adjustment and modify the Agreement in writing. However, except for a adjustment based on
defective specifications, no proposal for any change under paragraph (b) above shall be allowed
for any costs incurred more than 20 days (5 days for oral orders) before the Company gives
written notice as required. In the case of defective specifications for which the City is
responsible, the equitable adjustment shall include any increased cost reasonably incurred by
the Company in attempting to comply with the defective specifications.
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(e) The Company must assert its right to an adjustment under this clause within 30 days
after (1) receipt of a written change order under paragraph (a) of this clause, or (2) the
furnishing of a written notice under paragraph (b) of this clause, by submitting a written
statement describing the general nature and the amount of the proposal. If the facts justify it,
the Contract Administrator may extend the period for submission. The proposal may be included
in the notice required under paragraph (b) above. No proposal by the Company for an equitable
adjustment shall be allowed if asserted after final payment under this contract.
(f) The Company's written proposal for equitable adjustment shall be submitted in the
form of a lump sum proposal supported with an itemized breakdown of all increases and
decreases in the contract in at least the following details: (1) Direct Costs. Materials (list
individual items, the quantity and unit cost of each, and the aggregate cost); Transportation
and delivery costs associated with materials; Labor breakdowns by hours or unit costs
(identified with specific work to be performed); Construction equipment exclusively necessary
for the change; Costs of preparation and/ or revision to drawings or plans resulting from the
change; Worker's Compensation and Public Liability Insurance; Employment taxes under FICA
and FUTA; and, Bond Costs when size of change warrants revision; (2) Indirect Costs. Indirect
costs may include overhead, general and administrative expenses, and fringe benefits not
normally treated as direct costs; and (3) Profit. The amount of profit shall be negotiated and
may vary according to the nature, extent, and complexity of the work required by the change.
The Company shall not be allowed a profit on the profit received by any subcontractor.
Equitable adjustments for deleted work shall include a credit for profit and may include a credit
for indirect costs. On proposals covering both increases and decreases in the amount of the
contract, the application of indirect costs and profit shall be on the net-change in direct costs
for the Company or subcontractor performing the work.
(g) The Company shall include in the proposal its request for time extension (if any),
and shall include sufficient information and dates to demonstrate whether and to what extent
the change will delay the completion of the contract in its entirety.
(h) The Contract Administrator shall act on proposals within 30 days after their receipt,
or notify the Company of the date when such action will be taken.
(i) Failure to reach an agreement on any proposal shall notl excuse the Company from
proceeding with the contract as changed.
Q) Except in an emergency endangering life or property, no change shall be made by
the Company without a prior order from the Contract Administrator.
ARTICLE 13
TIME OF THE ESSENCE
13.1 All time limits stated herein are of the essence of this Agreement.
ARTICLE 14
CAPTIONS
14.1 The brief headings or titles preceding each provision hereof are for purposes of
identification and convenience only and should be completely disregarded in construing this
Agreement.
ARTICLE 15
THIRD PARTY BENEFICIARIESJOBLIGORS
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15.1 Although this agreement is a personal retention of the Company as an independent
Company, the Company and the City agree that there will be other third party obligors
subcontractors performing work on the project. The Company, however, agrees to be
responsible for ensuring that all agreement terms are complied with, regardless of the entity
performing the actual work.
ARTICLE 16
DRUG FREE WORK PLACE
16.1 It is the policy of the City of Tybee Island that its work place shall be a drug free
workplace in compliance with the Drug Free Work Place Act, 41 U.S.C.S. 701et.seq.
ARTICLE 17
APPLICABLE LAWS
17.1 The Company agrees that it and all of its subcontractors will comply with all applicable
legal requirements whether imposed by Local, State or Federal law and, further, will comply
with State"SAVE" and"E-Verify"requirements.
ARTICLE 18
JURISDICTION AND VENUE
18.1 The Company agrees that any civil action, arbitration or mediation of any dispute arising
under this Agreement shall take place only in Tybee Island or Savannah, Chatham County,
Georgia. City and Company further agree and stipulate to the jurisdiction and venue of the
United States District Court for the Southern District of Georgia, Savannah Division, the Superior
Court of Chatham County or the State Court of Chatham County over them and over any civil
action arising under this Agreement.
IN WITNESS WHEREOF, the Company and the City have caused these presents to be duly
signed, sealed and delivered on the day, month, and year first above written.
AMANO MCGANN, INC. CITY OF TYBEE ISLAND
By:
Name: Todd Townsend Jason Buelterman, Mayor
Title: Date
Date
Clerk of Council
Date
APPROVED AS TO FORM:
Edward M. Hughes, City Attorney
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Date
City of Tybee Island
City of Tybee Island
TERMS AND CONDITIONS
DEFINITIONS. As used herein, the following terms shall have the meanings set forth below, whether
or not capitalized.
(a) "Purchase Order"or"Order"means this purchase order.
(b) "Buyer"means The City of Tybee Island.
(c) "Seller"or"Vendor"means the party furnishing the supplies under this order.
(d) "Supplies" means what the Seller furnishes the Buyer under this order and includes with
limitation, the following; (1) the work; materials; articles; deliverable items, items, data and
services, whether tangible or intangible or any combination thereof; and (2) what is leased or
licensed, pursuant to the lease(s) or license(s) signed by both the Buyer and the lessor or
licensor if attached to and made a part of this order.
(e) "Loss" means any or all the following: claims, liabilities, damages, losses, costs, or expenses
(including reasonable attorneys'fees and expenses and other legal costs).
ACCEPTANCE. This order constitutes an offer which shall become a binding contract upon the terms
and conditions herein set forth upon acceptance by Seller either by acknowledgement of this order or
commencement of performance. Buyer objects to any difference, conflicting or additional terms
proposed by Seller in the acceptance of this order, and no such terms shall be effective unless expressly
accepted by Buyer in writing. Each shipment received by Buyer from Seller shall be deemed to be only
upon the terms and conditions contained in this order, except by such written instrument modifying the
order, signed by Buyer, notwithstanding any terms and conditions that may be contained in any
acknowledgment, invoice, or other form issued by Seller and notwithstanding Buyer's act of accepting or
paying for any shipment, or similar act by Buyer.
PRICES. Seller represents that the prices, terms, warranties, and benefits contained in this order are
comparable to or better than those offered to any other customer of Seller for items which are the same
or substantially similar in both the characteristics of the community and actual scope of work
implemented. Buyer shall receive the benefit prospectively or retrospectively if Seller offers any item or
service included in this order to any other customer at a lower price, more favorable terms, more
favorable warranties, or more favorable benefits up to one year after completion of this order.
DELIVERY. Any delivery schedule made a part of this order is an important, material condition; time is
of the essence of the order. Unless otherwise agreed to in writing. Seller shall not make material
commitments or production arrangements in excess of the amount or in advance of the time necessary to
meet Buyer's delivery schedule. It is Seller's responsibility to comply with this schedule, but not to
anticipate Buyer's requirements. In addition to any other rights or remedies, Buyer may cancel all or any
part of this order for Seller's failure to deliver in strict accordance with the delivery terms set forth herein.
Seller shall promptly notify Buyer of any anticipated delay in the delivery date and Buyer may require
Seller to ship by alternate means in order to expedite delivery. Any additional costs shall be paid by
Seller and Seller shall be liable for all resulting damages to Buyer occasioned by the delay. Delivery shall
not be deemed to be complete until the items have been received and accepted by Buyer. Advance and
excess shipments may at Buyer's option be rejected and returned to Seller at Seller's expense.
TRANSPORTATION. Except as otherwise provided on the face of this order, transportation charges on
Supplies shall be f.o.b. destination, at Seller's sole cost and expense. Risk of loss from any casualty to
supplies ordered hereunder, regardless of cause, shall be Seller's responsibility until goods have been
delivered to Buyer's designated delivery post. No insurance or premium transportation costs beyond the
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price listed in this order will be allowed unless authorized by Buyer in writing. If Seller does not comply
with Buyer's delivery schedule, Buyer may, in addition to any other rights that Buyer may have under this
order, require delivery by fastest way, and charges resulting from the premium transportation must be
fully prepaid and absorbed by Seller.
WARRANTY. Seller warrants that all supplies delivered pursuant to this order shall strictly conform to
the applicable specifications (including without limitation information or functional performance, material
content, size, appearance, response time, etc.), shall be free from all defects and workmanship in
materials including latent defects, shall be free from defects in design and suitable for their intended
purpose, and shall be free from all claims, encumbrances, and liens. This warranty shall survive
inspection, delivery and payments shall run to Buyer, its successors, assigns and the users of the items
and shall not be deemed to be exclusive. Seller agrees to indemnify, defend and hold Buyer, Buyer's
employees, and those for whom Buyer may act as agent, harmless from all damages, including
consequential and incidental damages, incurred or sustained by Buyer by reason of any breach of any
warranty with respect to the supplies purchased. Buyer shall be promptly reimbursed for all expenses
incurred in the handling, inspection and return of defective items, and Seller shall bear the risk of loss on
all such items. If any of the supplies are found at any time prior to acceptance to be defective in material
or workmanship, or otherwise not in conformity with the requirements of this order, Buyer(in addition to
any other rights which it may have under warranties or otherwise) may at its option (1) correct or have
corrected the nonconformity at Seller's expense, or (2) reject and return such supplies or other
deliverable items at Seller's expense, such supplies or other deliverable items not to be replaced without
suitable written authorization from Buyer.
CHANGES. Buyer may at any time request in writing changes to this order in the specifications, packing,
shipment, quantities, delivery schedules, and other matters. If any such change causes an increase or
decrease in the costs of or the time required for performance, Seller shall immediately notify Buyer. Any
request for an equitable adjustment must be made in writing with 30 days from the date of the written
request for the change. No additional charge or change in the specifications, packing, shipment,
quantities, delivery schedules, and other matters will be allowed unless authorized by Buyer in writing.
TAXES. The Buyer, a municipality in the State of Georgia, is exempt from Georgia Sales Tax under the
Sales and Use Tax ID # 302 526 178. All sales and use tax due on materials purchased by the city for
installation by the seller under this contract are the responsibility of the contractor.
ASSIGNMENT. Neither this order nor any interest herein may be assigned, in whole or in part, by Seller
without the prior written consent of Buyer. Notwithstanding the above, Seller may assign any monies
due or to become due to him hereunder, provided that such assignment shall not be binding upon Buyer
until receipt of a copy of the assignment agreement is acknowledged and approved by Buyer in writing.
SUBCONTRACTING. Seller shall not enter into a subcontract for any part of this order, including
completed or substantially completed items or major components thereof, without Buyer's written
consent. Nothing in this order shall be seen as prohibiting Seller's purchase of standard commercial
articles, raw materials, or other supplies specified in this order if these are typically purchased by Seller in
the normal course of business.
TERMINATION. Buyer may terminate or suspend performance under this order in whole or in part
from time to time by sending written notice to Seller. Upon receiving notice of such action by Buyer,
Seller shall immediately comply with its terms and take all reasonable steps to avoid incurring any
additional costs under this order. Buyer's sole liability to Seller shall be for items completed and delivered
to Buyer in accordance with this order and for Seller's reasonable costs to the date of termination, such
costs being solely attributable to this order and not being recoverable from other sources.
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INDEMNIFICATION. Seller agrees to indemnify, defend and hold Buyer, Buyer's employees, and those
for whom Buyer may act as agent harmless from (1) any and all claims and liabilities for injuries or death
of persons or damages to or destruction of property; (2) any other Loss caused by or resulting from the
acts or omissions of Seller, its agents, subcontractors, suppliers or employees in the performance of this
order; (3) any Loss caused by or resulting from the supplies purchased under this order, (4) any intended
use of products or materials provided by Seller; (5) any defective products or materials provided by
Seller, including without limitation the use or disposal of hazardous and/or toxic materials, such materials
to include at minimum all materials recognized by the Environmental Protection Agency as hazardous; or
(6) any breach by Seller of any express or implied warranties. If Seller's work hereunder involves
operations by Seller's agents, subcontractors, suppliers or employees on Buyer's premises or any place
where Buyer conducts operations, Seller shall take all necessary precautions to prevent the occurrence of
any injury or damage to persons or property during the progress of such work. Further, Seller shall
indemnify, defend and hold Buyer, Buyer's employees, and those for whom Buyer may act as agent
harmless for any injuries occurring to Seller's agents, subcontractors, suppliers or employees and Seller
shall maintain public liability, property damage and employee's liability and compensation insurance
sufficient to protect Buyer from any claims under any applicable law, statute, or regulation.
MODIFICATION; WAIVER. No waiver or modification of this order shall be effective unless in writing
and signed by both of the parties hereto. Failure of either party to enforce its rights under this order
shall not constitute a waiver of such rights or any other rights.
ENTIRE AGREEMENT. This order is intended by the parties as a final expression of their agreement
and also as a complete and exclusive statement of the terms thereof, any prior or contemporaneous oral
or written agreements as to the same subject matter notwithstanding.
INVALIDITY. In the event that any provision of this order is declared invalid, illegal, or otherwise
unenforceable by any tribunal or law, the remainder of the provisions shall not be affected thereby, and
each term and provision not declared invalid, illegal or unenforceable shall be valid and shall be enforced
to the fullest extent permitted by law.
DRUG FREE WORKPLACE. By accepting this order, the Seller certifies that he shall provide a drug free
workplace for his employees in accordance with the laws of the State of Georgia.
SPECIFICATIONS, PROPOSALS, BID DOCUMENTS. The documents which form the basis for this
order shall include the plans and specifications and bid documents as attached hereto, together with any
other documents so listed and enumerated, if any, and it is expressly understood that any special
conditions listed and attached hereto are specifically made a part of this contract.
APPLICABLE LAW. The provisions and performance of this purchase order shall be governed by the
laws of the State of Georgia and applicable federal law. Seller agrees to bring any and all actions relating
to this purchase order only in the state and federal courts located within Chatham County in the State of
Georgia.
APPROPRIATION. Notwithstanding, any other provision hereof, this agreement shall terminate at the
end of each calendar year without liability or obligation on the part of the city in any calendar year where
the City has not appropriated funds for the obligations hereunder for the next calendar year.
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