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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". Page 1 of 14 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 Page 2 of 14 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 Page 3 of 14 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, Page 4 of 14 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 Page 5of14 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 Page 6of14 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 Page 7 of 14 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 Page 8of14 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. Page 9 of 14 (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 Page 10 of 14 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 Page 11 of 14 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 Page 12 of 14 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. Page 13 of 14 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. Page 14of14