HomeMy WebLinkAboutBID - 7107 CARPENTRY CONTRACTOR 2010City of
Financial Services
Purchasing Division
215 N. Mason St. 2nd Floor
F6rtCollins
PO Box 580
Fort Collins, CO 80522
970.221.6775
Purchasing
970.221.6707
fcgov. com/purchasing
INVITATION TO BID
7107 Carpentry Contractor 2010
BID OPENING: 2:30 P.M. (our clock), February 4, 2010
Sealed bids will be received and publicly opened at the office of the Director of Purchasing and
Risk Management, PO Box 580, 215 North Mason St., 2nd floor, Fort Collins, Colorado 80522,
at the time and date noted on the bid proposal and/or contract documents. If delivered, they are
to be sent to 215 North Mason Street, 2nd Floor, Fort Collins, Colorado 80524. If mailed, the
address is P.O. Box 580, Fort Collins, 80522-0580.
Bids must be received at the Purchasing Office prior to 2:30 p.m. (our clock), February 4,
2009.
Questions regarding bid submittal or process should be directed to
James R. Hume, CPPO, Senior Buyer (970) (970)221-6776.
A copy of the Bid may be obtained as follows:
Download the Bid from the Purchasing Webpage, Current Bids page, at:
http://fcgov.com/eprocurement
2. Come by Purchasing at 215 North Mason St., 2nd floor, Fort Collins, and request
a copy of the Bid.
Special Instructions
All bids must be properly signed by an authorized representative of the company with the legal
capacity to bind the company to the agreement. Bids may be withdrawn up to the date and hour
set for closing. Once bids have been accepted by the City and closing has occurred, failure to
enter into contract or honor the purchase order will be cause for removal of supplier's name
from the City of Fort Collins' bidders list for a period of twelve months from the date of the
opening. The City may also pursue any remedies available at law or in equity. Bid prices must
be held firm for a period of forty-five (45) days after bid openings.
Submission of a bid is deemed as acceptance of all terms, conditions and specifications
contained in the City's specifications initially provided to the bidder. Any proposed modification
must be accepted in writing by the City prior to award of the bid.
Only bids properly received by the Purchasing Office will be accepted. All bids should be clearly
identified by the bid number and bid name contained in the bid proposal.
No proposal will be accepted from, or any purchase order awarded, to any person, firm or
corporation in default on any obligation to the City.
Bids must be furnished exclusive of any federal excise tax, wherever applicable.
Bidders must be properly licensed and secure necessary permits wherever applicable.
where renewal is a way of life
15. Remedies
In the event a party has been declared in default, such defaulting party shall be allowed a period
of ten (10) days within which to cure said default. In the event the default remains uncorrected,
the party declaring default may elect to (a) terminate the Agreement and seek damages; (b)
treat the Agreement as continuing and require specific performance; or (c) avail himself of any
other remedy at law or equity. If the non -defaulting party commences legal or equitable actions
against the defaulting party, the defaulting party shall be liable to the non -defaulting party for the
non -defaulting party's reasonable attorney fees and costs incurred because of the default.
16. Binding Effect
This writing, together with the exhibits hereto, constitutes the entire agreement between the
parties and shall be binding upon said parties, their officers, employees, agents and assigns
and shall inure to the benefit of the respective survivors, heirs, personal representative,
successors and assigns of said parties.
17. Indemnity/Insurance
a. The Service Provider agrees to indemnify and save harmless the City, its officers,
agents and employees against and from any and all actions, suits, claims, demands or
liability of any character whatsoever, brought or asserted for injuries to or death of any
person or persons, or damages to property arising out of, result from or occurring in
connection with the performance of any service hereunder.
b. The Service Provider shall take all necessary precautions in performing the work
hereunder to prevent injury to persons and property.
C. Without limiting any of the Service Provider's obligations hereunder, the Service Provider
shall provide and maintain insurance coverage naming the City as an additional insured
under this Agreement of the type and with the limits specified within Exhibit "C",
consisting of one (1) page, attached hereto and incorporated herein by this reference.
The Service Provider before commencing services hereunder, shall deliver to the City's
Director of Purchasing and Risk Management, 215 N Mason, 2"d Floor, Fort Collins,
Colorado 80524, one copy of a certificate evidencing the insurance coverage required
from an insurance company acceptable to the city.
18. Entire Agreement
This Agreement, along with all Exhibits and other documents incorporated herein, shall
constitute the entire Agreement of the parties. Covenants or representations not contained in
this Agreement shall not be binding on the parties.
19. Law/Severability
This Agreement shall be governed in all respect by the laws of the State of Colorado. In the
event any provision of this Agreement shall be held invalid or unenforceable by any court of
competent jurisdiction such holding shall not invalidate or render unenforceable any other
provision of this Agreement.
20. Prohibition Against Employing Illegal Aliens
Pursuant to Section 8-17.5-101, C.R.S., et. seq., Service Provider represents and agrees that:
a. As of the date of this Agreement:
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1. Service Provider does not knowingly employ or contract with an illegal alien who will
perform work under this Agreement; and
2. Service Provider will participate in either the e-Verify program created in Public Law
208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress,
as amended, administered by the United States Department of Homeland Security (the
"e-Verify Program") or the Department Program (the "Department Program"), an
employment verification program established pursuant to Section 8-17.5-102(5)(c)
C.R.S. in order to confirm the employment eligibility of all newly hired employees to
perform work under this Agreement.
b. Service Provider shall not knowingly employ or contract with an illegal alien to perform
work under this Agreement or knowingly enter into a contract with a subcontractor that
knowingly employs or contracts with an illegal alien to perform work under this Agreement.
c. Service Provider is prohibited from using the e-Verify Program or Department Program
procedures to undertake pre -employment screening of job applicants while this
Agreement is being performed.
d. If Service Provider obtains actual knowledge that a subcontractor performing work under
this Agreement knowingly employs or contracts with an illegal alien, Service Provider
shall:
1. Notify such subcontractor and the City within three days that Service Provider has
actual knowledge that the subcontractor is employing or contracting with an illegal
alien; and
2. Terminate the subcontract with the subcontractor if within three days of receiving the
notice required pursuant to this section the subcontractor does not cease employing or
contracting with the illegal alien; except that Service Provider shall not terminate the
contract with the subcontractor if during such three days the subcontractor provides
information to establish that the subcontractor has not knowingly employed or
contracted with an illegal alien.
e. Service Provider shall comply with any reasonable request by the Colorado Department
of Labor and Employment (the "Department") made in the course of an investigation that
the Department undertakes or is undertaking pursuant to the authority established in
Subsection 8-17.5-102 (5), C.R.S.
f. If Service Provider violates any provision of this Agreement pertaining to the duties
imposed by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If this
Agreement is so terminated, Service Provider shall be liable for actual and consequential
damages to the City arising out of Service Provider's violation of Subsection 8-17.5-102,
C.R.S.
g. The City will notify the Office of the Secretary of State if Service Provider violates this
provision of this Agreement and the City terminates the Agreement for such breach.
21. Amendment 54
To the extent that this Agreement may constitute a "sole source government contract" within the
meaning of Section 2(14.4) of Article XXVIII of the constitution of the State of Colorado, about
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which the City makes no representation, Section 15 of said Article XXVIII, which reads as
follows, is hereby incorporated into this Agreement and made a part hereof:
a. Section 15. Because of a presumption of impropriety between contributions to any
campaign and sole source government contracts, contract holders shall contractually
agree, for the duration of the contract and for two years thereafter, to cease making,
causing to be made, or inducing by any means, a contribution, directly or indirectly, on
behalf of the contract holder or on behalf of his or her immediate family member and for
the benefit of any political party or for the benefit of any candidate for any elected office of
the state (of Colorado) or any of its political subdivisions.
Exhibit A: Scope of Work
(inserted here in contract)
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Exhibit B: Work Order Form
WORK ORDER FORM
PURSUANT TO AN AGREEMENT BETWEEN
THE CITY OF FORT COLLINS
AND
DATED:
Work Order Number:
Purchase Order Number:
Project Title:
Commencement Date:
Completion Date:
Maximum Fee: (time and reimbursable direct costs):
Project Description:
Scope of Services:
Acceptance
User
Service Provider agrees to perform the services identified above and on the attached forms in
accordance with the terms and conditions contained herein and in the Services Agreement
between the parties. In the event of a conflict between or ambiguity in the terms of the Services
Agreement and this work order (including the attached forms) the Services Agreement shall control.
The attached forms consisting of (_) pages are hereby accepted and incorporated herein by this
reference, and Notice to Proceed is hereby given.
City of Fort Collins
By:
Date:
CC: Purchasing
Service Provider
By:
Date:
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Exhibit C: Insurance Requirements
The Service Provider will provide, from insurance companies acceptable to the City, the
insurance coverage designated hereinafter and pay all costs. Before commencing work
under this bid, the Service Provider shall furnish the City with certificates of insurance
showing the type, amount, class of operations covered, effective dates and date of
expiration of policies, and containing substantially the following statement"
"The insurance evidenced by this Certificate will not be cancelled or materially altered,
except after ten (10) days written notice has been received by the City of Fort Collins."
In case of the breach of any provision of the Insurance Requirements, the City, at its
option, may take out and maintain, at the expense of the Service Provider, such
insurance as the City may deem proper and may deduct the cost of such insurance from
any monies which may be due or become due the Service Provider under this
Agreement. The City, its officers, agents and employees shall be named as additional
insured on the Service Provider's general liability and automobile liability insurance
policies for any claims arising out of work performed under this Agreement.
2. Insurance coverage shall be as follows:
A. Workers' Compensation & Employer's Liability. The Service Provider shall
maintain during the life of this Agreement for all of the Service Provider's
employees engaged in work performed under this agreement:
Workers' Compensation insurance with statutory limits as required by
Colorado law.
2. Employer's Liability insurance with limits of $100,000 per accident,
$500,000 disease aggregate, and $100,000 disease each employee.
B. Commercial General & Vehicle Liability. The Service Provider shall maintain
during the life of this Agreement such commercial general liability and automobile
liability insurance as will provide coverage for damage claims of personal injury,
including accidental death, as well as for claims for property damage, which may
arise directly or indirectly from the performance of work under this Agreement.
Coverage for property damage shall be on a "broad form" basis. The amount of
insurance for each coverage, Commercial General and Vehicle, shall not be less
than $500,000 combined single limits for bodily injury and property damage.
In the event any work is performed by a subcontractor, the Service Provider shall
be responsible for any liability directly or indirectly arising out of the work
performed under this Agreement by a subcontractor, which liability is not covered
by the subcontractor's insurance. <
Bidders not responding to this bid will be removed from our automated vendor listing for the
subject commodities.
The City may elect where applicable, to award bids on an individual item/group basis or on a
total bid basis, whichever is most beneficial to the City. The City reserves the right to accept or
reject any and all bids, and to waive any irregularities or informalities.
Sales prohibited/conflict of interest: no officer, employee, or member of City Council, shall have
a financial interest in the sale to the City of any real or personal property, equipment, material,
supplies or services where such officer or employee exercises directly or indirectly any decision -
making authority concerning such sale or any supervisory authority over the services to be
rendered. This rule also applies to subcontracts with the City. Soliciting or accepting any gift,
gratuity, favor, entertainment, kickback or any items of monetary value from any person who
has or is seeking to do business with the City of Fort Collins is prohibited.
Freight terms: unless otherwise noted, all freight is F.O.B. Destination, Freight Prepaid. All
freight charges must be included in prices submitted on proposal.
Discounts: any discounts allowed for prompt payment, etc., must be reflected in bid figures and
not entered as separate pricing on the proposal form.
Purchasing restrictions: your authorized signature of this bid assures your firm's compliance
with the City's purchasing restrictions. A copy of the resolutions is available for review in the
Purchasing Office or the City Clerk's Office. Request Resolution 91-121 for cement restrictions.
Collusive or sham bids: any bid deemed to be collusive or a sham bid will be rejected and
reported to authorities as such. Your authorized signature of this bid assures that such bid is
genuine and is not a collusive or sham bid.
Bid results: for information regarding results for individual bids send a self-addressed,
self -stamped envelope and a bid tally will be mailed to you. Bid results will be posted in our
office 7 days after the bid opening.
James B. O'Neill II, CPPO, FNIGP
Director of Purchasing and Risk Management
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CITY OF FORT COLLINS
BID PROPOSAL
BID 7107 CARPENTRY CONTRACTOR 2010
BID OPENING: February 4, 2010, 2:30pm (our clock)
WE HEREBY ENTER OUR BID FOR THE CITY OF FORT COLLINS' REQUIREMENTS FOR
CARPENTRY CONTRACTOR - 2010 PER THE BID INVITATION AND ANY REFERENCED
SPECIFICATIONS:
Section 1.0: General
1.1 Information
Service Provider will supply experienced general carpentry to include: wood and steel stud
framing, siding, window and door installation, finish work, small drywall jobs (under 500 sq. ft.),
non structural demolition and limited mechanical installations such as attaching interior
commercial hardware on City buildings. Needed services during the contract period will be
requested through issuance of work orders. There is no guaranteed minimum amount of
services to be ordered. No work order exceeding $75,000 will be issued. The City reserves the
right to supply any or all materials. This contract is a one year contract with 4 optional years to
renew and shall be administered by the PMPD Division of the Operations Services Department,
but may be utilized by other City Departments.
The City will select two contractors to provide carpentry services. For work estimated to
cost less than $5,000 either of the awarded contractors may be contacted by City personnel and
asked to provide an estimate to complete the work. For work estimated to cost over $5,000
both contractors will be asked to bid on the work.
1.2 Definitions
City Representative and Project Manager are equivalent terms, generally referring to the City
employee responsible for coordination and decision making related to work under this contract.
Service Provider and Contractor are equivalent terms.
Section 2.0: Scope of Work
2.1 Service Provider to:
A. Provide experienced general carpentry services as set out in specific work orders
B. Carry insurance levels as indicated in attached Services Agreement.
C. Maintain a local telephone number, and must be able to be reached by telephone
and facsimile transmissions during prescribed business hours. (8 hours per each
24 hour working period - Monday through Friday). Contractor will respond to all
City non -emergency telephone transmissions in a reasonably prudent time
(Generally meaning within 24 hours on the next working day) and provide an
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after normal work hours phone number to be used by the City to request
emergency or urgently needed services.
D. Clean-up the job site at the end of each day and at work completion.
E. Provide proof of personnel qualifications, to include but not limited to: copies of
licenses, school certificates, 3 letters of reference and 2 personal letters of
reference.
F. Provide evidence of having adequate and sufficient equipment to perform quality
services.
G. Move and re -set all furnishings such as desks, chairs, filing cabinets, etc. which
interferes with doing the work when required.
H. Provide quality service.
2.2 Bidder Qualification. Bidder must have:
A. At least (7) years, consistent, hands on experience in industrial and commercial
carpentry applications.
B. A complete understanding of steel framing is mandatory. Contractor will
demonstrate this knowledge through a minimum of three professional references,
and/or, interview with City officials. The City reserves the right to require testing
for knowledge and skills required to perform under this contract.
C. Be licensed as a class C-1 general contractor or higher with the City of Fort
Collins, at the time of application.
D. Contractor will provide, upon request, physical job -site evidence of three (3) local
projects where carpentry, as defined in this bid proposal equals approximately
10K, either underway or completed. If completed, plans and specifications must
be available for review by the City.
Section 3.0: Work Order Procedure
For Jobs Estimated to Cost Less Than $5,000:
3.1 Job estimates must be submitted on a unit price basis consistent with the prices
established in the Price Schedule section.
3.2 Contractor will invoice for all jobs completed on a unit price basis using the prices
established in the Price Schedule section including appropriate mark-up on materials, if
any. Material costs must be provided in a form acceptable to the Project Manager.
For Jobs Estimated to Cost More Than $5,000:
3.5 Both awarded contractors will be asked to bid on the job. Pricing is expected to be a
firm fixed price for the completed work.
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3.6 The City Project Manager will provide a written scope of work. Contractors will be
expected to attend an onsite meeting to discuss the job requirements. The City Project
Manager and the contractors will come to agreement, in writing, regarding any changes
to the Scope at this meeting. If a contractor does not attend the onsite meeting, they
may not bid on the job. Work will be awarded to the lowest bidder.
Section 4.0: Procedures Applicable to all Jobs
4.1 Workmanship and materials must be warranted for one year after acceptance of the job
by the City Project Manager.
4.2 A signed work order by the City Representative is the Contractor's notice to proceed.
Emergency work may be excepted.
4.3 Work order number, jobsite address, and the City Representative's name must be
included on billing invoices or invoices may be returned to contractor for addition of the
appropriate information.
4.4 The Contractor may be required to submit for review a breakdown of hours worked per
man/day for Journeyman, and/or apprentice workers, on any project or item of work
requested.
4.5 Service Agreement
Contractor must enter into the attached services agreement (SAMPLE) and provide the
required insurance. This agreement is effective for one year from the date on the
service agreement. At the option of the City, the Agreement may be extended for
additional one year periods not to exceed four (4) additional one year periods. Pricing
changes shall be negotiated by and agreed to by both parties and may not exceed the
Denver - Boulder CPI-U as published by the Colorado State Planning and Budget Office.
Written notice of renewal shall be provided to the Service Provider and mailed no later
than sixty (60) days prior to contract end.
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5.0
.E
BID 7107 CARPENTRY CONTRACTOR 2010
Bid Schedule Hourly rates charged for work ordered under this agreement will be:
A. Normal Hours (From A.M. To _P.M.)
$ Per Hour (Journeyman) $ Per Hour (Apprentice)
B. Overtime Rates:
$ Per Hour (Journeyman) $ Per Hour (Apprentice)
C. Material Costs: Enter your proposed markup for materials costs.
Cost plus percent for individual materials costing less than $500.
Note: The City will pay a maximum of 10% for materials costing less than $500.
Cost plus percent for individual materials costing more than $500.
Note: The City will pay a maximum of 8% for materials costing more than $500.
Material invoices must be included with billing statements.
Method of Award:
Award will be based on: (1) The most favorable total cost for the labor and material
requirements as set forth below; and (2) the bidder best meeting the requirements of the
Service Agreement and Scope of Work; and (3) an assessment by City staff of the
Bidder's Qualifications, which will be rated on a scale of 1 (poor) to 5 (excellent).
16 Hours X $ (Normal hourly rate for Journeyman) _ $
5 Hours X $ (Overtime hourly rate for Journeyman) _ $
$450 in Materials X 1. % (10% maximum) _ $
$800 in Materials X 1. % (8% maximum) _ $
TOTAL COSTS....
Firm Name
Are you a: (circle one) Corporation, DBA, Partnership, LLC, PC
Signature
Print Name
Title
Address
Phone/Fax /
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SAMPLE:
Sample ** SERVICES AGREEMENT ** Sample
WORK ORDER TYPE
Carpentry Contractor
THIS AGREEMENT made and entered into the day and year set forth below, by and between
THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to
as the "City" and (business name), hereinafter referred to as "Service Provider".
WITNESSETH:
In consideration of the mutual covenants and obligations herein expressed, it is agreed by and
between the parties hereto as follows:
1. Services to be Performed
a. This Agreement shall constitute the basic agreement between the parties for services.
The conditions set forth herein shall apply to all services performed by the Service
Provider on behalf of the City and particularly described in Work Orders agreed upon in
writing by the parties from time to time. Such Work Orders, a sample of which is
attached hereto as Exhibit "B", consisting of one (1) page, and incorporated herein by
this reference, shall include a description of the services to be performed, the location
and time for performance, the amount of payment, any materials to be supplied by the
City and any other special circumstances relating to the performance of services. The
only services authorized under this agreement are those which are performed after
receipt of such Work Order, except in emergency circumstances where oral work
requests may be issued. Oral requests for emergency actions will be confirmed by
issuance of a written Work Order within two (2) working days.
b. The City may, at any time during the term of a particular Work Order and without
invalidating the Agreement, make changes within the general scope of the particular
services assigned and the Service Provider agrees to perform such changed services.
2. Changes in the Work
The City reserves the right to independently bid any services rather than issuing work to the
Service Provider pursuant to this Agreement. Nothing within this Agreement shall obligate the
City to have any particular service performed by the Service Provider.
3. Time of Commencement and Completion of Services
The services to be performed pursuant to this Agreement shall be initiated as specified by each
written Work Order or oral emergency service request. Oral emergency service requests will be
acted upon without waiting for a written Work Order. Time is of the essence.
4. Contract Period
This Agreement shall commence March 1, 2010 and shall continue in full force and effect until
February 28, 2011, unless sooner terminated as herein provided. In addition, at the option of
the City, the Agreement may be extended for additional one year periods not to exceed four (4)
additional one year periods. Pricing changes shall be negotiated by and agreed to by both
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parties. Pricing changes shall be negotiated by and agreed to by both parties and should not
exceed the Denver - Boulder CPI-U as published by the Colorado State Planning and Budget
Office. Written notice of renewal will be provided to the Service Provider and mailed no later
than sixty (60) days prior to contract end.
5. Delay
If either party is prevented in whole or in part from performing its obligations by unforeseeable
causes beyond its reasonable control and without is fault or negligence, then the party so
prevented shall be excused from whatever performance is prevented by such cause. To the
extent that the performance is actually prevented, the Service Provider must provide written
notice to the City of such condition within fifteen (15) days from the onset of such condition.
6. Early Termination by City/Notices
Notwithstanding the time periods contained herein, the City may terminate this Agreement at
any time without cause by providing written notice of termination to the Service Provider. Such
notice shall be mailed at least fifteen (15) days prior to the termination date contained in said
notice unless otherwise agreed in writing by the parties. All notices provided under this
Agreement shall be effective when mailed, postage prepaid and sent to the following address:
City Service Provider
City of Fort Collins Purchasing
PO Box 580
Fort Collins, CO 80522
Attn: Jim Hume
In the event of early termination by the City, the Service Provider shall be paid for services
rendered to the termination date, subject only to the satisfactory performance of the Service
Provider's obligations under this Agreement. Such payment shall be the Service Provider's
sole right and remedy for such termination.
7. Contract Sum
This is an open-end indefinite quantity Agreement with no fixed price. The actual amount of
work to be performed will be stated on the individual Work Orders. The City makes no
guarantee as to the number of Work Orders that may be issued or the actual amount of services
which will in fact be requested.
8. Payments
a. The City agrees to pay and the Service Provider agrees to accept as full payment for all
work done and all materials furnished and for all costs and expenses incurred in
performance of the work the sums set forth for the hourly labor rate and material costs,
with markups, stated within Scope of Work, attached hereto as Exhibit "A", consisting of
(_) pages, and incorporated herein by this reference.
b. Payment shall be made by the City only upon acceptance of the work by the City and
upon the Service Provider furnishing satisfactory evidence of payment of all wages,
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taxes, supplies and materials, and other costs incurred in connection with the
performance of such work.
9. City Representative
The City's representative will be shown on the specific Work Order and shall make, within the
scope of his or her authority, all necessary and proper decisions with reference to the work
requested. All requests concerning this Agreement shall be directed to the City Representative.
10. Independent Contractor
It is agreed that in the performance of any services hereunder, the Service Provider is an
independent contractor responsible to the City only as to the results to be obtained in the
particular work assignment and to the extend that the work shall be done in accordance with the
terms, plans and specifications furnished by the City.
11. Personal Services
It is understood that the City enters into the Agreement based on the special abilities of the
Service Provider and that this Agreement shall be considered as an agreement for personal
services. Accordingly, the Service Provider shall neither assign any responsibilities nor
delegate any duties arising under the Agreement without the prior written consent of the city.
12. Acceptance Not Waiver
The City's approval or acceptance of, or payment for any of the services shall not be construed
to operate as a waiver of any rights under the Agreement or of any cause of action arising out of
the performance of this Agreement.
13. Warranty
a. Service Provider warrants that all work performed hereunder shall be performed with the
highest degree of competence and care in accordance with accepted standards for work
of a similar nature.
b. Unless otherwise provided in the Agreement, all materials and equipment incorporated
into any work shall be new and, where not specified, of the most suitable grade of their
respective kinds for their intended use, and all workmanship shall be acceptable to City.
C. Service Provider warrants all equipment, materials, labor and other work, provided under
this Agreement, except City -furnished materials, equipment and labor, against defects
and nonconformance in design, materials and workmanship for a period beginning with
the start of the work and ending twelve (12) months from and after final acceptance
under the Agreement, regardless whether the same were furnished or performed by
Service Provider or by any of its subcontractors of any tier. Upon receipt of written
notice from City of any such defect or nonconformance, the affected item or part thereof
shall be redesigned, repaired or replaced by Service Provider in a manner and at a time
acceptable to City.
14. Default
Each and every term and condition hereof shall be deemed to be a material element of this
Agreement. In the event either party should fail or refuse to perform according to the terms of
this agreement, such party may be declared in default thereof.
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