Fort Walton Beach Council agenda — 06-25-13--regular — reading text

the Contractor all such parts and accessories remaining in stock. The Contractor shall not charge a restocking fee or assess any other charge associated with any returned parts. 4. 3 Payment Caw., Lghf-DWy VeNclesf Page 4 of 14 Pac" ..( 9  b. 1. 4. b 4. 3. 1 Vehicle prices shall be F.O. B. FMD facilities. 4. 3. 2 All proper invoices shall be paid by the City in accordance with the Florida Local Government Prompt Payment Act, Section 218.70, Florida Statutes. 4. 3. 3 In addition to other remedies available under this Contract, the City shall have the right to deduct, offset against, or withhold from sums or payments otherwise due the Contractor any sums or amounts which the Contractor may owe to the City pursuant to provisions of this Contract, as a result of breach or termination of this Contract, or otherwise. SECTION 5. 0 DELIVERY AND ACCEPTANCE a 5. 1 The Contractor shall deliver, or shall cause the manufacturer to deliver, all ` o Vehicles in accordance with the schedule set forth in the Proposal or such other time period as may be agreed by the parties. The Contractor and the City agree a that timely delivery of each Vehicle is of the essence of this Contract, that the City will suffer damages in the event of a failure to so perform, and that such n C damages may be difficult to precisely calculate or prove. As a result, the Contractor shall pay to the City, as liquidated damages and not as a penalty, the 2 amount of $100 per day, or portion thereof, for each day of delay in delivery of each Vehicle ordered by the City. Such liquidated damages shall be paid in N addition to any other recourse that may be available to City in the event that LL there is an adjustment to the delivery schedule the City will be notified in writing. g 5. 2 The Contractor shall, or shall cause the manufacturer to, fully assemble, service, and adjust each Vehicle, including associated accessories or equipment installed by the Contractor, prior to delivery and shall demonstrate, to the satisfaction of the City, that each delivered Vehicle meets all applicable specifications and requirements, as set forth in this Contract and as agreed upon by the parties, and all representations of the manufacture. The delivery schedules shall be agreed upon at the first pre -construction meeting, but is subject to change and the City will be noted as of why the adjustment is necessary. If the change is not agreeable to the City, it can cancel the order without penalty or liability of any kind to the Contractor. The Contractor shall be responsible for, and shall bear all risk of loss and damage to each Vehicle until it is delivered to the City at its specified location. 5. 3 Delivery of a Vehicle to the City does not constitute acceptance for the purpose of payment or warranty start time. The City shall inspect and test each delivered Vehicle to determine whether it meets all specifications and requirements set forth in this Contract and within seven ( 7) days following delivery, the City shall notify the Contractor, in writing, or by verifiable email of either its final acceptance of each Vehicle or the failure of such Vehicle to meet such specifications and requirements. In the latter case, the Contractor, within ten ( 10) days following its Ca . t rases -Dwy v hrd. rJ Page 5 of U ket39  F8 .1. 4.b receipt of written notice from the City, shall deliver to the City a detailed proposal and schedule for corrective action. If the proposed corrective action is acceptable to the City, the Contractor will be given a written notice to proceed, and a new inspection, testing, and notice process shall commence upon completion of corrective action. If the proposed corrective action or schedule is not acceptable, or if approved corrective action is not timely completed, the City may refuse the affected Vehicle. All adjustments associated with placing a unit in -service will continue to be the responsibility of the Contractor. 0 e 5. 4 With each Vehicle, the Contractor shall deliver to the City, in an electronic format 0 acceptable to the City, the following: L 1) one ( 1) copy of the associated technical and service manuals, per model; DVD preferred; and a vo ii) a copy of the manufacturer' s preventive maintenance schedule; and, 3 a iii) the manufacturer's statement of origin, title application, and all warranty M documents. NN 5. 5 All Vehicles delivered to the City shall be owned by the Contractor and shall be delivered free and clear of all liens and security interests of any kind. SECTION 6. 0 INDEMNIFICATION. 6. 1 The Contractor shall indemnify and save harmless the City, its officials and employees, from all losses, damages, costs, expenses, liability, claims, actions, and judgments of any kind whatsoever, including reasonable attorney's fees and costs of litigation, to the extent arising out of or caused by any act or omission of the Contractor, its subcontractors, or their respective employees, officers, directors, or agents, in the performance under this Contract. The indemnification obligation under this clause shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any subcontractor under any Workers' Compensation Act, Disability Benefit Act, or other Employee Benefit Act. 6. 2 The Contractor shall, at its sole expense, defend any claim, suit or proceeding brought against the City, its officials or employees, to the extend such claim, suit or proceeding is based on a claim that any Vehicle, associated accessories or equipment, or any process involved in manufacture of the same, or any parts, or equipment, furnished under this Contract ( collectively, " Infringing Work ") constitutes infringement of any registered patent of the United States of America or county of manufacture, provided that City shall give the Contractor prompt written notice of any such claim, suit or proceeding and shall give the Contractor authority, information and assistance in a timely manner for the defense of the CoWlaat Light -Duty Vehicles] Page 6 of M pjiicket Pg. 40 -'.  F8 1.. 4.b same. The Contractor shall indemnify and hold the City, its officials or employees, harmless from and against all costs and damages awarded, and all attorneys' fees incurred or awarded, in any suit or proceeding so defended. The Contractor will not be responsible for any settlement or proceeding made without its prior written approval. In case said Infringing Work is held to constitute an infringement and the use of said Infringing Work is enjoined, the Contractor shall, at its own expense and at its option, either ( a) procure for City the right to continue using said Infringing work, ( b) replace said Infringing Work with substantially equivalent, equally functional, non -infringing Work, parts or combination thereof, or ( c) modify such Infringing Work so that it becomes non - infringing, while maintaining the same functionality. SECTION 7. 0 INSURANCE. 7. 1 Within thirty ( 30) days following the commencement of the term of this Contract, Contractor shall procure and maintain at Contractor' s own cost and expense for the duration of the Contract, the following insurance against claims for injuries to person or damages to property which may arise from or in connection with the performance of the Scope of Services hereunder by Contractor, its agents, representatives, employees or sub -consultants. The cost of such insurance shall be borne by Contractor. 7. 1. 1 Contractor shall maintain the following coverage with limits no less than the indicated amounts: a) Commercial General/Umbmlla Liability Insurance - $ 1, 000, 000 limit per occurrence for property damage and bodily injury. The certificate of insurance shall state whether the coverage is provided on a claims - made or preferably on an occurrence basis. The insurance shall include coverage for the following: i) Premise /Operations ii) Explosion, Collapse and Underground Property Damage Hazard ( only when applicable to the project) iii) Products /Completed Operations iv) Contractual v) Independent Contractors vi) Broad Form Property Damage vii) Personal Injury b) Business Automobile/ Umbrella Liability Insurance - $ 1, 000,000 limit per accident for property damage and personal injury. i) Owned/