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A. Agreement Clauses: All City agreements for supplies, services, and construction shall include provisions necessary to define the responsibilities and rights of the parties to the agreement. The Purchasing Agent, or designee, after consultation with the City Attorney, may issue clauses appropriate for supply, service, or construction agreements, addressing among others the following subjects:
1. The unilateral right of the City to order in writing changes in the work within the scope of the agreement;
2. The unilateral right of the City to order in writing temporary stopping of the work or delaying performance that does not alter the scope of the agreement;
3. Variations occurring between estimated quantities of work in agreement and actual quantities;
4. Defective pricing;
5. Liquidated damages;
6. Specified excuses for delay or nonperformance;
7. Termination of the agreement for default;
8. Termination of the agreement in whole or in part for the convenience of the City;
9. Suspension of work on a construction project ordered by the City; and
10. Site conditions differing from those indicated in the agreement, or ordinarily encountered, except that a differing site conditions clause need not be included in an agreement:
a. When the agreement is negotiated;
b. When the contractor provides the site or design; or
c. When the parties have otherwise agreed with respect to the risk of differing site conditions.
B. Price Adjustments:
1. Adjustments in price resulting from the use of agreement clauses required by subsection A of this section shall be computed in one (1) or more of the following ways:
a. By agreement on a fixed price adjustment before commencement of the pertinent performance or as soon thereafter as practicable;
b. By unit prices specified in the agreement or subsequently agreed upon;
c. By the costs attributable to the events or situations under such clauses with adjustment of profit or fee, all as specified in the agreement or subsequently agreed upon;
d. In such other manner as the contracting parties may mutually agree; or
e. In the absence of an agreement by the parties, by a unilateral determination by the City of the costs attributable to the events or situations under such clauses with adjustment of profit or fee as computed by the City, as accounted for in accordance with generally accepted accounting principles and subject to the appeal and remedy provisions of this chapter.
C. Contractor's Submissions: A contractor shall be required to submit cost or pricing data if any adjustment in agreement price is subject to the provisions of section 3.10.220, "Cost Or Pricing Data", of this chapter.
D. Standard Clauses And Their Modification: The Purchasing Agent, or designee, after consultation with the City Attorney, may establish standard agreement clauses for use in City agreements. If the Purchasing Agent, or designee, establishes any standard clauses addressing the subjects set forth in subsection A of this section, such clauses may be varied provided that any variations are supported by a written determination that states the circumstances justifying such variations, and provided that notice of any such material variation is stated in the invitation for bids, RFP or RFQ. (Ord. 17-14)
Except with respect to firm fixed price agreements, no agreement type shall be used unless it has been determined in writing by the Purchasing Agent, or designee, that:
A. The proposed contractor's accounting system will permit timely development of all necessary cost data in the form required by the specific agreement type contemplated; and
B. The proposed contractor's accounting system is adequate to allocate costs in accordance with generally accepted cost accounting principles. (Ord. 17-14)
A. Audit Of Cost Or Pricing Data: The City may at reasonable times and places, audit the books and records of any contractor who has submitted cost or pricing data pursuant to section 3.10.220, "Cost Or Pricing Data", of this chapter, to the extent that such books, documents, papers, and records are pertinent to such cost or pricing data. Any person who receives an agreement, change order, or agreement modification for which cost or pricing data is required, shall maintain such books, documents, papers, and records that are pertinent to such cost or pricing data for three (3) years from the date of final payment under the agreement.
B. Agreement Audit: The City shall be entitled to audit the books and records of a contractor or a subcontractor at any tier under any negotiated agreement or subcontract other than a firm fixed price agreement to the extent that such books, documents, papers, and records are pertinent to the performance of such agreement or subcontract. Such books and records shall be maintained by the contractor for a period of three (3) years from the date of final payment under the agreement and by the subcontractor for a period of three (3) years from the date of final payment under the subcontract. (Ord. 17-14)
A. Procurement File: All determinations and other written records pertaining to the solicitation, award, or performance of an agreement shall be maintained for the City by the Purchasing Agent, or designee and the City Recorder in a procurement file.
B. Retention Of Procurement Records: All procurement records shall be retained and disposed of by the City in accordance with records retention guidelines and schedules approved by the City Recorder. (Ord. 17-14)
ARTICLE IV. SPECIFICATIONS
All specifications shall be drafted so as to promote overall economy for the purposes intended and encourage competition in satisfying the City's needs, and shall not be unduly restrictive. The policy expressed in this section applies to all specifications including, but not limited to, those prepared for the City by architects, engineers, designers, and draftsmen. (Ord. 17-14)
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