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HomeMy WebLinkAbout2024-018 Agrmt - Calix IncDocuSign Envelope ID: 31359221 F-7562-4C78-90EA-7352B894A885 GOODS AND SERVICES AGREEMENT (GREATER THAN $35,000) CONTRACTOR: Calix, Inc. CITY OF CONTACT: Colin Koehler ASHLAND 20 East Main Street ADDRESS: 2777 Orchard Parkway, San Jose, CA 95134 Ashland, Oregon 97520 Telephone: 541/488-5587 PHONE:253-778-0306 Fax: 541 /488-6006 EMAIL: colin.koehler@calix.com This Goods and Services Agreement (hereinafter "Agreement") is entered into by and between the City of Ashland, an Oregon municipal corporation (hereinafter "City") and Calix, Inc., a domestic business corporation (hereinafter "Contractor"). This Agreement amends and is incorporated into the Master Purchase and License Agreement (contract number 910106182020) between the parties dated September 24, 2020 ("MPLA"). In the event of a conflict between this Agreement and the MPLA, this Agreement will control. 1. CONTRACTOR'S OBLIGATIONS 1.1 Provide goods and services as set forth in the applicable Order, which by this reference, are incorporated herein. Contractor expressly acknowledges that time is of the essence of any completion date set forth in the Orders, and that no waiver or extension of such deadline may be authorized except in the same manner as herein provided for authority to exceed the maximum compensation. The goods and services defined and described in the Orders shall hereinafter be collectively referred to as "Work." 1.2 Contractor shall obtain and maintain during the term of this Agreement and until City's final acceptance of all Work received hereunder, a policy or policies of liability insurance including commercial general liability insurance with a combined single limit, or the equivalent, of not less than $1,000,000 (one million dollars) per occurrence, $2,000,000 (two million dollars) in the general aggregate for Bodily Injury and Property Damage. 1.2.1 The insurance required in this Article shall include the following coverages: • Comprehensive General or Commercial General Liability, including personal injury, contractual liability, and products/completed operations coverage; and • Automobile Liability; and • Workers' Compensation. 1.2.2 Each policy of such insurance shall be on an "occurrence" and not a "claims made" form, and shall: • Apply to each named and additional named insured as though a separate policy had been issued to each, provided that the policy limits shall not be increased thereby; • Apply as primary coverage for each additional named insured except to the extent that two or more such policies are intended to "layer" coverage and, taken together, they provide total coverage from the first dollar of liability; • Contractor shall immediately notify the City of any cancellation in insurance coverage; and • Be evidenced by a certificate or certificates of such insurance. Page 1 of 7: Goods and Services Agreement between the City of Ashland and Calix, Inc. DocuSign Envelope ID: 31359221 F-7562-4C78-90EA-7352B894A885 1.3 Contractor shall, at its own expense, maintain Worker's Compensation Insurance in compliance with ORS 656.017, which requires subject employers to provide workers' compensation coverage for all of its subject workers. As evidence of the insurance required by this Agreement, the Contractor shall furnish an acceptable insurance certificate upon written request. 1.4 Contractor agrees that no person shall, on the grounds of race, color, religion, creed, sex, marital status, familial status or domestic partnership, national origin, age, mental or physical disability, sexual orientation, gender identity or source of income, suffer discrimination in the performance of this Agreement when employed by Contractor. Contractor agrees to comply with all applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. Further, Contractor agrees not to discriminate against a disadvantaged business enterprise, minority -owned business, woman - owned business, a business that a service -disabled veteran owns or an emerging small business enterprise certified under ORS 200.055, in awarding subcontracts as required by ORS 279A.I 10. 1.5 In all solicitations either by competitive bidding or negotiation made by Contractor for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential subcontractor or supplier shall be notified by the Contractors of the Contractor's obligations under this Agreement and Title VI of the Civil Rights Act of 1964 and other federal nondiscrimination laws. 1.6 Living Wage Requirements: If the amount of this Agreement is $25,335.05 or more, Contractor is required to comply with Chapter 3.12 of the Ashland Municipal Code by paying a living wage, as defined in that chapter, to all employees performing Work under this Agreement and to any Subcontractor who performs 50% or more of the Work under this Agreement. Contractor is also required to post the notice attached hereto as "Exhibit A" predominantly in areas where it will be seen by all employees for its applicable locations located in Oregon (if any). 2. CITY'S OBLIGATIONS 2.1 City shall pay Contractor the sum stated in the applicable Order as full compensation for the Work as specified in the Orders. 2.2 In no event shall Contractor's total of all compensation and reimbursement under this Agreement exceed the sum of $600,000 (this is maximum, not to exceed amount of entire Agreement) without express, written approval from the City official whose signature appears below, or such official's successor in office. Contractor expressly acknowledges that no other person has authority to order or authorize additional Work which would cause this maximum sum to be exceeded and that any authorization from the responsible official must be in writing. Contractor further acknowledges that any Work delivered or expenses incurred without authorization as provided herein is done at Contractor's own risk. 3. GENERAL PROVISIONS 3.1 This is a non-exclusive Agreement. City is not obligated to procure any specific amount of Work from Contractor and is free to procure similar types of goods and services from other Contractors in its sole discretion. 3.2 Contractor is an independent contractor and not an employee or agent of the City for any purpose. 3.3 Contractor is not entitled to, and expressly waives all claims to City benefits such as health and disability insurance, paid leave, and retirement. Page 2 of 7: Goods and Services Agreement between the City of Ashland and Calix, Inc. DocuSign Envelope ID: 3B59221 F-7562-4C78-90EA-7352B894A885 3.4 Contractor shall not assign this Agreement without the prior written consent of the City. Any attempted assignment without written consent of the City shall be void. Contractor shall be fully responsible for the acts or omissions of any subcontractors and of all persons performing Contractor obligations. Contractor's use of subcontractors shall not create any contractual relation between the subcontractor and the City. 3.5 This Agreement, the MPLA, and the Orders embody the full and complete understanding of the parties respecting the subject matter hereof. They supersede all prior agreements, negotiations, and representations between the parties, whether written or oral. 3.6 This Agreement may be amended only by written instrument executed with the same formalities as this Agreement. 3.7 The following laws of the State of Oregon are hereby incorporated by reference into this Agreement: ORS 279B.220, 279B.230 and 27913.235. 3.8 This Agreement shall be governed by the laws of the State of Oregon without regard to conflict of laws principles. Exclusive venue for litigation of any action arising under this Agreement shall be in the Circuit Court of the State of Oregon for Jackson County unless exclusive jurisdiction is in federal court, in which case exclusive venue shall be in the federal district court for the district of Oregon. Each party expressly waives any and all rights to maintain an action under this Agreement in any other venue, and expressly consents that, upon motion of the other party, any case may be dismissed or its venue transferred, as appropriate, so as to effectuate this choice of venue. 3.9 Reserved. 3.10 Neither party to this Agreement shall hold the other responsible for damages or delay in performance caused by acts of God, strikes, lockouts, accidents, or other events beyond the control of the other or the other's officers, employees or agents. 3.11 If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, such provision shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permitted the intent of Contractor and the City set forth in this Agreement. 3.12 Reserved. 3.13 The City may inspect and test the Goods. The City may reject non -conforming Goods in accordance with the warranties stated in the MPLA and require Contractor to correct them without charge or deliver them at a reduced price, as negotiated. If Contractor does not cure any defects within a reasonable time, the City may reject the Goods and cancel that portion of the applicable Order. This paragraph does not affect or limit the City's rights, including its rights under the Uniform Commercial Code, ORS Chapter 72 (UCC). 3.14 Contractor represents and warrants that the Goods are new, current, and fully warranted by the manufacturer. Delivered Goods will comply with Orders and be free from defects in labor, material and manufacture. Contractor shall transfer all warranties to the City. 4. SUPPORTING DOCUMENTS 4.1 The following documents are, by this reference, expressly incorporated in this Agreement: Page 3 of 7: Goods and Services Agreement between the City of Ashland and Calix, Inc. DocuSign Envelope ID: 3B59221 F-7562-4C78-90EA-7352B894A885 • The MPLA. • All fully executed Orders. 4.2 This Agreement, the MPLA, and the Orders shall be construed to be mutually complimentary and supplementary wherever possible. In the event of a conflict which cannot be so resolved, the provisions of this Agreement itself shall control over any conflicting provisions in any of the MPLA or Orders. 5. REMEDIES 5.1 In the event Contractor is in default of this Agreement, City may, at its option, pursue any or all of the remedies available to it under this Agreement and at law or in equity, including, but not limited to: 5.1.1 Termination of this Agreement in accordance with Article IV, Section 2 of the MPLA; 5.1.2 Withholding all monies due for the Work that Contractor has failed to deliver within any scheduled completion dates or any Work that have been delivered inadequately or defectively; 5.1.3Initiation of an action or proceeding for damages, specific performance, or declaratory or injunctive relief; 5.1.4 These remedies are cumulative to the extent the remedies are not inconsistent, and City may pursue any remedy or remedies singly, collectively,, successively or in any order whatsoever. 5.2 In no event shall City be liable to Contractor for any expenses related to termination of this Agreement if the reason for termination is Contractor breach. If previous amounts paid to Contractor exceed the amount due, Contractor shall pay immediately any excess to City upon written demand provided. 6. TERM AND TERMINATION 6.1 Term This Agreement shall be effective from the date of execution on behalf of the City as set forth below (the "Effective Date"), and shall continue in full force and effect unless sooner terminated as provided in Subsection 6.2. 6.2 Termination 6.2.1 The City and Contractor may terminate this Agreement by mutual agreement at any time. 6.2.2 Either party may terminate this Agreement, with cause, in accordance with Article IV, Section 2(d) of the MPLA if the other party is breach and has not cured such breach in accordance with the terms therein. Such termination is in addition to and not in lieu of any other remedy at law or equity. 7. NOTICE Whenever notice is required or permitted to be given under this Agreement, such notice shall be given in writing to the other parry by personal delivery, by sending via a reputable commercial overnight courier, or by mailing using registered or certified United States mail, return receipt requested, postage prepaid, to the address set forth below: If to the City: City of Ashland — Ashland Fiber Network Attn: Chad Sobotka 90 N Mountain Ave Ashland, Oregon 97520 Phone: (541) 552-2402 With a copy to: Page 4 of 7: Goods and Services Agreement between the City of Ashland and Calix, Inc. DocuSign Envelope ID: 31359221 F-7562-4C78-90EA-73528894A885 City of Ashland — Legal Department 20 E. Main Street Ashland, Oregon 97520 Phone: (541) 488-5350 If to Contractor: Calix, Inc. Attn: General Counsel 2777 Orchard Parkway San Jose, CA 95134 With copy to: CalixLegal@calix.com 8. WAIVER OF BREACH One or more waivers or failures to object by either party to the other's breach of any provision, term, condition, or covenant contained in this Agreement shall not be construed as a waiver of any subsequent breach, whether or not of the same nature. 9. CONTRACTOR'S COMPLIANCE WITH TAX LAWS 9.1 Contractor represents and warrants to the City that: 9.1.1 Contractor shall, throughout the term of this Agreement, including any extensions hereof, comply with: (i) All applicable tax laws of the State of Oregon, including but not limited to ORS 305.620 and ORS chapters 316, 317, and 318; (ii) Any tax provisions imposed by a political subdivision of the State of Oregon applicable to Contractor; and (iii) Any rules, regulations, charter provisions, or ordinances that implement or enforce any of the foregoing tax laws or provisions. 9.1.2 Contractor further certifies that contractor is not in violation of any Oregon tax laws referenced in ORS 305.380(4). 9.2 Contractor's failure to comply with the applicable tax laws of the State of Oregon and all applicable tax laws of any political subdivision of the State of Oregon shall constitute a material breach of this Agreement. Further, any violation of Contractor's warranty, as set forth in this Article 9, shall constitute a material breach of this Agreement. Any material breach of this Agreement shall entitle the City to terminate this Agreement in accordance with the MPLA and to seek damages and any other relief available under this Agreement, at law, or in equity. 10. INDEMNIFICATION AND CONFIDENTIALITY 10.1 Section 3(a) of Article V of the MPLA is hereby replaced with the following: "Subject to the limits of the Oregon Tort Claims Act, 30.260 to 30.300, Customer shall defend, indemnify and hold harmless Calix and its shareholders, officers, directors and employees against any claim, demand, suit or proceeding ("Claim") (i) resulting from the negligence or willful misconduct of Customer; (ii) alleging that the Customer Data or other data or information supplied by Customer infringes the intellectual property rights or other rights of a third party or has caused harm to a third party; or (iii) by a third party alleging that such third party did not consent to the collection, use, processing or disclosure of its Customer Data, including personally identifiable information, in connection with the Software or the Subscription Services. 10.2 The following are added as a new Sections 4(d) and 4(e) to Article V in the MPLA: Page 5 of 7: Goods and Services Agreement between the City of Ashland and Calix, Inc. DocuSign Envelope ID: 3B59221F-7562-4C78-90EA-7352B894A885 "d. Notwithstanding anything to the contrary in this Section 4, disclosure of Confidential Information, is subject to Oregon public records law, ORS 192.005 to 192.170. To the extent permitted under Oregon Public Records Law, each party shall comply with this Section4, except that each party may disclose Confidential Information to those of its representatives who need to know the particular information to carry out the purposes of this Agreement, provided that each representative is informed of the obligations of confidentiality under this Agreement." "e. Customer will without undue delay inform Calix of any request for Confidential Information, but Customer will defer to the Calix to defend Calix's interest against any and all disclosure should a request for any public record which relates or pertains to such Confidential" Information. Customer will not interfere with the Calix's defense to prevent disclosure, although it will follow any directive by those public officials legally qualified to direct Customer to disclose such public records and in a manner as so directed. Customer is not required to expend funds or resources to perform any defense on behalf of or in lieu of Calix to protect against disclosure of Confidential Information." IN WITNESS WHEREOF the parties have caused this Agreement to be signed in their respective names by their duly authorized representatives as of the dates set forth below. CITY OF ASHLAND: DoeuSigned by: By: Sabrina C ,'i 14�i�i9 4F.ity Manager Sabrina Cotta Printed Name 2/12/2024 Date Purchase Order No. APPROVED AS TO FORM: City Attorney Date CALIX, INC. (CONTRACTOR): DoouSlgned by: By: ttla. Greg Dalforno Printed Name VP Global Ops Transformation Title 2/12/2024 Date is to be submitted with this signed Agreement) Page 6 of 7: Goods and Services Agreement between the City of Ashland and Calix, Inc. DocuSign Envelope ID: 3B59221F-7562-4C78-90EA-7352B894A885 City of Ashland LIVING WAGE per hour, effective June 30, 2023. 1r, The Living Wage is adjusted annually every June 30 by the Consumer Price Index. For all hours worked under a service contract between their employer and the City of Ashland if the contract exceeds $25,335-05 or more. For 9 hours worked in a month, Kthe employee spends 50% or more of the employee's time in that month working on a prW' ct or portion of the business of their employer, if the e nployer has ten or more employees, and has received financial assistance for the project or busiwss from the City of Ashland over $25,335.05; If tier employer is the City of Ashland, mcluding the Parks and Recreation Department In calculating the living wage, employers may add the value of health care, retirement, 401K, and IRS eligible cafeteria plans (ndudmg childcare) benefits to the employee's amount of wages. • Note: For temporary and part-time employees, the Living Wage does not apply to the first 1040 hours worked in any calendar year_ For more details, please see Ashland Municipal Code Section 3.1Z020_ Call the Ashland City Manager's off at 541-48HOO2 or write to the City Manager, City/ Hall, 20 East Main Street, Ashland, OR 97520, or visit the Qys website at www.ashland.or_tms. Notice to Employers: This notice must be posted in areas where it can be seen by all employees. CITY OF -ASHLAND Page 8 of 7: Goods and Services Agreement between the City of Ashland and Calix, Inc.