§ 37.052  CONTRACT MODIFICATION AND TERMINATION.
   (A)   The City Manager shall be authorized to provide, by appropriate clauses to contracts for supplies or services of all types, for changes and modifications to the contracts and providing for the method or methods of calculating in the contract price resulting from such changes or modifications.
      (1)   In contracts for the purchase of fixed amounts of commodities, supplies and equipment, increases in quantities in excess of 10% of the original quantity fixed by contract shall not be permitted unless the invitation for bids or requests for proposals for competitive negotiation informed prospective bidders or offerors that an increase in quantities might be forthcoming.
      (2)   Increases in unit price shall not be permitted in contracts for increased quantities, except as provided by a price escalation formula authorized by the invitation for bids or requests for proposals for competitive negotiations.
      (3)   All changes or modifications to contracts for the purchase of commodities, supplies, equipment and construction services shall be effected by an advice of change in order to the contract which shall be supported by a written determination documenting the reason and basis for the change or modification to the contract.
      (4)   A copy of the advice of change in order and the supporting documentation relative to any change or modification to a contract shall be filed and maintained in the contract file.
   (B)   Every contractor to whom a contract containing clauses authorizing changes or modifications to the contract shall be deemed by acceptance of the contract to have agreed to the changes or modifications of the contract as provided herein.
   (C)   Any contractor who is determined in writing by the City Manager to be in breach of any of the terms and conditions of a contract may in the discretion of the City Manager be declared in default and  the  contract  may  be terminated for any of the following:
      (1)   Failure to perform the contract according to its terms, conditions and specifications.
      (2)   Failure to make delivery within the time specified or according to a delivery schedule fixed by the contract.
      (3)   Late payment or nonpayment of bills for labor, materials, supplies or equipment furnished in connection with a contract for construction services as evidenced by a mechanic's lien(s) filed pursuant to the provisions of KRS Ch. 376, or letters of indebtedness received from creditors.
      (4)   Failure to diligently prosecute the work under a contract for construction service.
   (D)   The city shall not be liable for any further payment to a contractor under a contract terminated for the contractor's default after the date of the default, except for commodities, supplies, equipment or services delivered and accepted on or before the date of default and for which payment had not been made as of that date.  The contractor or his surety, if a performance bond or payment bond has been required under the contract, shall be jointly and severally liable to the city for all loss, cost or damage sustained as a result of the contractor's default.  A contractor's surety's liability shall not exceed the final sum specified in the contractor's bond.
   (E)   The city shall be authorized to terminate for its own convenience all contracts for the procurement of supplies and services when the City Manager determines in writing that termination will be in the best interest of the city, and according to the following provisions:
      (1)   When it has been determined that a contract should be terminated for the convenience of the city, the City Manager is authorized to negotiate a settlement with the contractor according to terms deemed just and equitable.
      (2)   Compensation to a contractor for lost profits on  a  contract terminated for  convenience of the city shall not exceed an amount proportionate to the sum that the contractor's total expected margin of profit on the contract bore to the contract price, based on the total out-of-pocket expense incurred by the contractor as of the date of termination of the contract.  The contractor shall have the burden of establishing the amount of compensation to which he believes himself to be entitled by the submission of complete and accurate cost date employed in submitting his bid or proposal for the contract, and evidence of expenses paid or incurred in performance of the contract from the date of award through the date of termination.
   (F)   The City Manager, or his or her designee, upon the completion of performance of any construction contract as defined herein, shall perform a written evaluation of the performance of the vendor pursuant to the contract upon an evaluation form to be prepared by the City Manager or his or her designee for that purpose. A copy of the evaluation shall be maintained by the city in its records wit h respect to each contract.
(‘83 Code, § 36.57)  (Ord. 52-1979, passed 12-6-79; Am. Ord. 104-1980, passed 10-16-80; Am. Ord. 61-2019, passed 4-25-19)