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<br />In 1M event 01 such termination the performance bond shall be retained by the CITY as liquidated damages,
<br />based upon mutual agreement and understanding between contractor and CITY at the time chis bid is
<br />,solicited. submitted and accepted. chat the CITY is a government agency engaged in public projectS, and chat
<br />tM measurement 01 damages which might result from a breach of the terms and conditions 01 chis contt3Ct
<br />is diffICUlt or impossible to determine. Provided, however, chat if in the opinion 01 City Council. the lailure
<br />01 contrnctor to perfonn is occasioned by or is the result of acts or events over which the contt3Ctor has no
<br />contro~ said perfonnance bond may be returned to the contractor. at crrrs sole di$cretion. It is undemood
<br />that such determination shall be entirely discMionary with City Council.
<br />
<br />:26. POB POINT: Delivery 01 all produces under chis contract shall be made Free on Board (FOB) to fina1
<br />destinatiOn, at the address shown in chis contt3Ct or as indicated on each Delivery Order placed against chis
<br />contract. The title and risk of loss of the goods shall not pass to OTY until re:eipt and accepcanc:e cakes place
<br />at the FOB point.
<br />
<br />7J. lNSPl:CnON AND ACI:E'TANCF.: The CITY office or department re:eMnl deliveries or services
<br />pursuant to chis contt3Ct or issuing Delivery Orders shall inspect and accept any and all deliveries or services.
<br />and reject those which are damaged or which do nOC conform to specifications. Contractor shall be
<br />responsible for the proper labeling. packing. and delivery to fina1 destination, including replacement 01
<br />~ deliveries.
<br />
<br />:za. VARlA110N IN QUAN11T'l: No variation in the quantity 01 any item called for by chis contract will be
<br />actt1 nJess such variation has been caused by conditions of loading. shipping. or packing. or allowances
<br />in m :turing processes, and then only to the enent, if any, specified elsewhere in chis contract.
<br />
<br />29. , I\N1'lES: Implied warranties notwithstanding, bidder walT3nts to OTYchat all items delivered and
<br />all services rendered will conform to the specifications, drawings, or other d..rnptions furnished or
<br />incorporated by reference. will be 01 men:hantable quality, good workmanship, and free from defectS. The
<br />implied warranties of men:hantability and fieness for a particular purpose shall ""t be waived under these
<br />specifications or any conttact awarded from such specifications except as expressly authorized by the City
<br />CounciL Bidder further agree> to provide copies of applicable warranties or guarantees to the Purehasing
<br />Agent. Rernm of men:handise not meeting applicable warranties shall be at bidder's expense. (See Par. 16)
<br />
<br />30. CRAnnTIES: OTY may, by written noriee to the Contractor, terminate the right of the Contractor to
<br />proem under chis contt3Ct if it is found after notice and hearing by the City's Ethics Review Commission,
<br />that gratuities (in the fonn of entertainment, gifts or otherwise) were offered or given by the Contt3Ctor, or
<br />any agent or representative o( the Contt3Ctor, to any officer or employee of CITY with the intent to secure
<br />a contract or secure a favorable ereaanent with respect to the awarding or amending. or the malting o( any
<br />determination with respect to the perfonnance of such contract, provided, chat the existence o( the facts upon
<br />which the City Ethics Review Commission malees such fUldings ,shall be in issue and may be reviewed in any
<br />court of competent jurisdiction.
<br />(a) In the ""ent this contract is terminated as provided herein. OTY shall be entitled to; (i) punue
<br />the same ",medies against the Contractor as it could pursue in the ~ent of breach by the Contractor, and
<br />(ii) as a penalty, in addition to any other damages to which it may be entitled by law, coile<:t exemplary
<br />damages in an amount which shall be not I... than Three (3) nor more than Ten (10) rimes the amount
<br />given to any CITY officer or employee.
<br />(b) The rights and remedies of OTY provided in this clause shall not be exclusive and are in addition
<br />to any ocher rights and remedies provided by law.
<br />
<br />31. 0Fl'l0AlS NOT 10 lli:NEFIT: If a member 01 the City Council or any CITY employ... has an ownenhip
<br />intense in a company. the CITY may not pun:hase services, equipment or supplies from the company. If an
<br />officer of the OTY. other than a City Council member or OTY employee has an ownenhip interest in a
<br />company, then 1M OTY may ~ make purchases from chat company exceeding a cumulative amount of
<br />Seven Thousand Five Hundred (57,500.00) Dollan. Contracts or pun:hases made by the OTY in violation
<br />of these restrictions are voidable by the City Manager or the City Council.
<br />
<br />32. CIl'o'ENAHT AGAINST CDNTINGENT FEES. The Contractor Warrants chat no persons or selling agency
<br />have been employed or retained to solicit or secure this contract upon an agreement or undemanding fot a
<br />com-:-:"n, pen:entage, brokerage, or contingent fee, excepting bona fide empioy... or bona fide establUhed
<br />com aJ seiling agencies maintained by the Contractor for the purpose of securing busin.... For breach
<br />or' In o( chis walT3ney, OTY shail have the right to terminate this contract without liability, or in its
<br />disc to deduct from the contract price for C'Onsider3tion. or otherwise recov~r. the full amount ot such
<br />com..._.~n. percentage. brokerage. or C'Onting~nt fee.
<br />
<br />33. ASSlCNMENT I'Oll FINANCING PI1RJlC5[S: If this contract provides for payments by OTY exceeding
<br />Five Thousand Dollars (55.000.00), clainu for money due or to become due to the Contractor may be
<br />astigned to a bank, trust company, or other financing institution, including any Federal lending agency.
<br />provided however, chat prior written approval ar.d authorization is obtained from City Council through the
<br />Purehasing Agent, and payment by CITY is made only to one party. Any assignment not in conformance with
<br />this provision shail be nuil and void. A fee of One Hundred Dollan (5100.00) per contract, per request, will
<br />be charged the contractor for administrative C05t:s in processing each assignment under this provision. Such
<br />fee to be paid by Contractor to CITY. Contract will then be modified to renett the changed payee addr....
<br />
<br />301. DEI..ECAnoN. SIJllCX:lN1RACT ASSIGNMENT. SET-OFF: Contractor shail not, without the written
<br />consent of eM CITY, make any contract with any ocher pel'3On for furnishing any of the completed ot
<br />substantially completed goods covered by this contract or assign this contract or any right hereunder. OTY
<br />may set..,ff against the amount payable to any person under this contract any claim or charge it may have
<br />against Contractor. This contract shail not be assigned in whole or in part nor a major portion thereof
<br />.ubcol)tr.lCted without prior written pennission from CITY.
<br />
<br />3S.. WAND!; No claim or right arising out o( a breach of this contract can be di$charged in whole or in part
<br />by .. waiver or renunciation of the claim or right unles the waiver or renunciation is supported by
<br />consideration and is in writing and signed by the aggrieved party,
<br />
<br />36. NO/A11ON ANDOlANCl! 01' NAME: 1oC1lEEIoIENIS: The Contractor is responsible for the performance
<br />of this contract. In the ""ene a ehange o( name or novation agreement (change of ownenhip) is required
<br />pursuant to action initiated by the Contnlctor. the Pun:hasing Agent shall be notifJd immediately. No change
<br />in tM obligation of the Contractor will be recognized until such change is approved by City CounciL A fee
<br />oC One Hundred Dollars (5100.00) per concract, payable to OTY. will be charged the Contractor for
<br />administrative costs in processing each ehange under this provision. Contract will tMn be modified to reflect
<br />the change.
<br />
<br />'31. PORCE MAJElJRI!: In the event chat the performance by the CITY of any of its oblig.tions or
<br />undectakings hereunder shall be interrupted or delayed by any oeturre~ no( octasioned by its own
<br />conduct, whether :such oeturre~ be an act o( God or the common enemy or the result of war, rio,. civil
<br />commotion, sovereign conduet, or the act or conduct o( any person or persons no( a party or privy hereto.
<br />then it shall be excused from such performance for such period of rime as is reasonably necessary after such
<br />oeturren<:e to remedy the effectS thereof.
<br />
<br />3ll 1'EIlMlNATION POll DEFAULT: Failure by either party to chis contract in performing any of its
<br />provisions shall constitute a breach o( contract, in which case, either party may require colTl!<:rive action
<br />within Ten (10) days from date of reeeipt o(written notice eiring the exact nature of such breach. Failure
<br />to cake colTl!<:rive action or failun! co provide a satisfactory writt<!%l "'ply excmmg such (ailun! within the
<br />prescribed Ten (10) days shallconsritute a default o( contract. The defaulting pa:cy shall be given a Twenty
<br />(20) day period within wlcich tl> show cause why the conttact should not be termina,ed (or default. City
<br />Council may take whateVer action it deems necessary, resulting from such ~ AU notices (or corrective
<br />action, b",ach, defaulr. or .how ea.".., ,hall be isNe<i by the P=hasini A~ at Ci"J AttJ>t'M'f o~. wi
<br />all replies shall be made in writing to the Purchasing Agene at eM address shown on Page 1. Notices issued
<br />by or to any<>ne ocher than the Purchasing Agent or Gty Attorney shall be null and vo~ and shall be
<br />considered as nor having been issued or received. The defaulting party sbajJ be liable for liquidated
<br />damages. if any, as slipu\ated elsewhere in chis contract. Q1Y reserves the right to enforce the
<br />performance o( chis contract in any manner prescn1led by law in the event oC breach or default of chis
<br />contract, and may conlr.lCt with another party with or without solicitation of bids or fwther notification to
<br />the ContnlCtOr. h a minimum. ContractOr shall be required to pay any difference in 1M cost o( securing
<br />the prodllcts or services covered by this contract, or compensate for any loss or damage co the CITY derived
<br />hereunder should it become necessa:y to conttact with another so= beause of his default, plus
<br />reasonable administrarivecosaand attorney's fees. In the ""en' o(Termination for Default, CITY. its agents
<br />or representatives. shall not be liable (or loss o( any profits anticipated to be made hereunder.
<br />
<br />39.1'EIlMlNAllON POllCl:lNVF:NlDa: OTY reserves the right to terminate chis contract upon Thirty
<br />Days (30) written notice for any reason deemed by Cicy Council to serve eM ;roblic interest, or resulting
<br />from any govemmentallaw, ordinance, ",guJation, or coan: order. Termination for Convenience shall not
<br />be made when termination is authorized under any other provisions of this contract, and no such
<br />tennination fot convenience shall be taUn with the intention 01 awarding the same or similar contract
<br />requirements to another SOarte. In the event of such termination the ern' .haII pay the Contractor those
<br />costs directly attributable to worle done Ot supplies obtained in preparation for completion or comp~
<br />with contract prior to termination. Pro'9ided, however. chat no cosa .hall be ;>aid which are recoverable
<br />in eM nonna\ COline of doing busin... in which the Contractor is engaged. or costS which can be mitigated
<br />through the sale o( supplies or inventories. In eM ""ent OTY pays for 1M cost of supplies or materials
<br />obtained for use unde<" this contraCt, said supplies or materials shall become the property of OTY and shall
<br />be delivered to the FOB point shown in the contract, or as designated by the Purchasing Agent. OTY shall
<br />not be liable for loss of any profits anticipated to be made hereunder.
<br />
<br />'lO. DBI! POUCY: It is the OTY'S policy chat iri regard to any contract entered intO p=t to chis
<br />solicitation, minority business enterprises will be afforded equal opportunities to submit bids in response
<br />to chis solicitation and will not be discriminated against on the grounds o( race. color. sex, religion. national
<br />origin, age. or physical handicap in consideratioll,for an award.
<br />
<br /><41. ORDER OF PRECEDENCE: In the event o( inconsIStency between provisioM of this solicitation, the
<br />inconsistency shall be resolved by giving pre:edence in the (ollowing order.
<br />(a) the Schedule 01 Items/Services;
<br />(b) the SpecifICations;
<br />(e) eM Terms and Conditions oflnvitarion (or Bids;
<br />(d) the General Provisions;
<br />(e) other provisions. whether incorporated by reference or otherwise.
<br />
<br />.a. CDHSTlUlCTIOH:
<br />(a) Except as provided otherwise, words shall be given their ordinary meaning. If a word is
<br />COMe<:ted and use<! ..nth ~{e~nce to a particular trade Ot subject mattet at '" use<I as a _rd of art:, UIe
<br />_rd shall have the meaning given by experu in the particular trade, subjett n-oaner, or arc.
<br />(b) Words in the p.....nt or past tense include the future tense. The singo.Ilar includes the plural and
<br />the plural includes the singular unl... expressly provided otherwise. The rt'.asculine gender includes the
<br />feminine and neuter genden.
<br />(c) The headings at the beginning of the various provisioM of this contra" have been included only
<br />in order to make it easier to locate the subject covered by each provision a."ld are not to be used in
<br />construing this contract.
<br />
<br />.ol3. ENT1JlET'( OF IoCIIEEldENT AND MOOiI'lCATION: This instrument contains the entire agreement
<br />between the parties relating to the rights herein granted and the obligatioM he"in assumed. Any prior
<br />agreement:!, promises. rtqOtiation:J. or ~presentacions not expressly set {OM i., this agr~men[ are of no
<br />fo<<e or effect. Any oral representations or modifications concerning chis agreement shall be of no force
<br />or effett. excepting a subsequent modification in writing signed by the party to be charged and expressly
<br />authorized by the governing body of such pa:cy. No official. representative, empieyee, or agent of the CITY
<br />has any authority to modify or amend this concract excep' punuarit to specif", authoriey to do so granted
<br />by the Cicy CounciJ.
<br />
<br />+I. SEVERABIUTY: In case anyone or more of the provisions contained in this contract shall for any
<br />reason be held to be invalid, illegal, or unenfon:eable in any respect, such invalidiey, iIlegaliey or
<br />unenfon:eability ,han not affett any other provision hereof, and chis concract shall be construed as if such
<br />invalid, illegal or unenforceab~ provision had never been contained herein.
<br />
<br /><4s. GOIIERN/NG lAW AND VENUE: This contract shall be governed by the laws of the Scate of Texas and
<br />the Unifonn Commercial Code. and all obligations of the parties"", performable in SAN MARCOS, HAYS
<br />COUNTY, TEXAS. Exclusive venue for any dispute arising under this contract shall be in Hays County,
<br />Texas. Wherever the terms "lInifonn Commercial Code' is used, it shall be constroed as meaning the
<br />Unifonn Commercial Code as adopted in the Scate of Texas as effective and in fo<<e on the date of this
<br />contract.
<br />
<br /><46. DEFINTT1ONS: For purposes of chis solicitation and any resulting award, the following words or phrases
<br />shall have the meanings indicated below.
<br />(a) CONTRACT. Means the contract awarded pursuant to this solicitation.
<br />(b) CITY. Gty o( San Man:os. Hays County, Texas.
<br />(c) CITY COUNOl.. Duly elected or appointed members of tM Ciey Council of San Marcos, Texas.
<br />(d) COUNTY. Hays County, Scate of Texas.
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