HomeMy WebLinkAbout2020-105 Agrmt- Durst Energy GOODS&SERVICES AGREEMENT(GREATER THEN $25,000)
PROVIDER: Durst Energy, LLC
CITY O F PROVIDER'S CONTACT: Richard E.Durst
ASHLAND
20 East Main Street ADDRESS: 142 Belle Ct,Oregon City, Oregon 97045
Ashland,Oregon 97520
Telephone: 541/488-5587 PHONE: 503-724-0958
Fax: 541/488-6006 _
EMAIL:DurstEnergy@gmail.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 Durst Energy LLC, a domestic limited
liability'company ("hereinafter "Provider"), for the complete turn-key installation of Electric Vehicle Supply
Equipment.
1. PROVIDER'S OBLIGATIONS•
1.1 Provide complete turn-key installation of Electric Vehicle Supply Equipment as set forth in the
"SUPPORTING DOCUMENTS" attached hereto and, by this reference,incorporated herein. Provider
expressly acknowledges that time is of the essence of any completion date set forth in the SUPPORTING
DOCUMENTS,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"SUPPORTING DOCUMENTS"shall hereinafter be collectively referred
to as"Work."
1.2 Provider 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 $2,000,000 (two
million dollars)per occurrence for Bodily Injury and Property Damage.
1.2.1 Theinsurance 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.
1.2.2 Each policy of such insurance shall be on an "occurrence" and not a"claims made" form,and
shall:
• Name as additional insured "the City of Ashland, Oregon, its officers, agents and
employees" with respect to claims arising out of the provision of Work under this
Agreement; i
• 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;
• Provider shall immediately notify the City Of any change in insurance coverage;
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• Provider shall supply an endorsement naming.the City,its officers,employees and agents
as additional insureds by the Effective Date of this Agreement; and
• Be evidenced by a certificate or certificates of such insurance approved by the City.
1.3 All subject employers working under this:Agreement arc either employers that will comply With ORS
656.017 or employers that are exempt under ORS 656.126. As evidence of the insurance required by
this Agreement,the Provider shall furnish an acceptable insurance certificate prior to commencing any
Work under this Agreement.
1.4 Provider agrees that no personshall, 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 Provider. Provider agrees to comply with all applicablerequirements of
federal'and state civil rights and rehabilitation statutes,rules.and regulations. Further,Provider 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.110.
1.5 In all solicitations either by competitive bidding or negotiation made by Provider for work to be
performed under a subcontract, including procurements of materials orleases of equipment, each
potential subcontractor or supplier shall be notified by the Providers of the Provider's obligations under
this Agreement and Title VI of the Civil Rights Act of 1964 and other federal nondiscrimination laws.
1:6 Provider shall not assign this Agreement or subcontract any portion of the Work to be provided hereunder
without the prior written consent of the City. Any attempted assignment or subcontract without written
consent of the City shall be void. Provider shall be fully responsible for the acts or omissions of any
assigns orsubcontractors and of all persons employed by them, and the approval by the City of any
assignment or subcontract shall riot create any contractual relation between the.assignee or subcontractor
and the City. The City hereby consents to the subcontracting of,a portion of the Work to Welburn
Electric,Inc.
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1.7 Living Wage Requirements: If theamount of this Agreement is $22,002.43 or more, Provider 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 Agreementand to any Subcontractor who
performs 50% or more of the Work under this Agreement. Provider is also required to post the notice
attached hereto as"Exhibit A"predominantly in areas where it will be seen by all employees.
2. CITY'S OBLIGATIONS
2.1 City shall pay Provider the sum of$48,647.00 (forty-eight thousand and six hundred,and forty-seven
dollars) as provided herein as full compensation for the'Work as specified in the SUPPORTING
DOCUMENTS.
2.2' In no event shall Provider's total of all compensation and reimbursement under this Agreement exceed
the sum of$48,647.00 (forty-eight thousand six hundred forty-seven dollars) without express, written
approval from the City official whose signature appears below, or such official's successor in office.
Provider'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. Provider further acknowledges that any Work delivered or
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expenses incurred without authorization.as provided herein is done at Provider's own risk and as a
volunteer without expectation of compensation or reimbursement.
3. GENERAL PROVISIONS
3.1 This is a non-exclusive Agreement. City is not obligated to procure any specific amount of Work from •
Provider and is free to procure similar types of goods and services from other providers in its sole
discretion.
3.2 Provider is an independent contractor and not an employee or agent of the City for any purpose.
3.3 Provider is not entitled to,and expressly waives all claims to City benefits such as health and disability
insurance,paid leave,and retirement.
3.4 This Agreement embodies the full and complete understanding of the parties respecting the subject
matter hereof It supersedes all prior agreements,negotiations,and representations between the parties,
whether written or oral.
3.5 This Agreement may be amended only by written instrument executed with the same formalities as this
Agreement.
3.6 The following laws of the State of Oregon are hereby incorporated by reference into this Agreement:
ORS 279B.220,279B.230 and 279B.235.
3.7 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.
3.8 Provider shall defend,save,hold harmless and indemnify the City and its officers,employees and agents
from and against any and all claims,suits, actions, losses, damages, liabilities, costs, and expenses of
any nature resulting from, arising out of, or relating 'to the activities of Provideror its officers,
employees,contractors,or agents under this Agreement.
3.9 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.
3.10 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 Provider and the City set forth in this Agreement.
3.11 Deliveries will be F.O.B destination. Provider shall pay all transportation and handling charges for the
Goods. Provider is responsible and liable for loss or damage until final inspection and acceptance of the
Goods by the City. Provider remains liable for latent defects,fraud,and warranties.
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3.12 The City may inspect and test the Goods. The City may reject non-conforming Goods and require
Provider to correct them without charge or deliver them at a reduced price, as negotiated. If Provider
does not cure any defects within a reasonable time, the'City may reject the Goods andcancel this
Agreement in whole or in part. This paragraph does not affect or limit the City's rights, including its
rights under the Uniform Commercial Code,ORS Chapter 72(UCC):
3.13 Provider represents and warrants that the Goods are new, current, and fully warranted by the
manufacturer. Delivered Goods will comply with SUPPORTING DOCUMENTS and be free from
defects in labor,material and manufacture.Provider shall transfer all warranties to the City.
4. SUPPORTING DOCUMENTS
The following documents are,by this reference,expressly incorporatedin this Agreement,and are collectively
referred to in this Agreement as the"SUPPORTING DOCUMENTS:"
• The City's written Invitation to Bid dated May 1,2020,and subsequently issued
addenda#1,2,3.and 4.
• The Provider's complete written bid dated May 21,2020..
Item • Ouantitv Price Extended Price
Installation Option 2 527,653.00 $27,653.00
Equipment Ene1X Pro48 11.5kW 10 Each $20,384.00 .20;384.00
Networking Fee's per year all 10 chargers 3 Years Sl,2oo peryear ` WAIVED
(Total 53,600.00)
Extended Warranty x10 Chargers 561/2yrs 610.00
(5-Year warranty with selected option)
Total 548,647.00
5. REMEDIES
5.1 . In the event Provideris in default of this.Agreement, City may, at its option, pursue any or all of the
remedies available to it tinder this Agreement and at law or in equity, including;but not limited to:
5.1.1 Termination of this Agreement;
5.1.2 Withholding all monies due for the Work that Provider has failed to deliver within any-scheduled
completion dates or any Work that have been delivered inadequately or.defectively
5.1.3 Initiation 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 Provider for any expenses related to termination of this Agreement or
for anticipated profits. If previous amounts paid to Provider exceed the,amount due,Provider shall pay
immediately any excess to City upon written demand provided.
6. TERM AND TERMINATION
6.1 Term
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(iii) Anyrules,regulations,charter provisions, or ordinances that implement or enforce any of
the foregoing tax laws or provisions.
9.1.2 Provider,for a period of no fewer than six(6)calendar years preceding the Effective Dateof this
Agreement, has faithfully complied with:
(i) All tax laws of the State of Oregon,including but not limited to ORS 305.620 and ORS
chapters 316,317,and 3.18;
(ii) Any tax provisions imposed by a political subdivision of the State of Oregon applicable to
Provider;and
(iii) Any rules,regulations,charter provisions,or ordinances that implement or enforce any of
the foregoing tax laws;or provisions.
9.2 Provider's failure to comply with the 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 Provider'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
and.to seek damages and any other relief available under this Agreement,atlaw,or in equity.
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: DURST ENERG •L C:
By: By
City Administrator Signature
% , bikr Kih47L
- llr%cf/
Printed Name Printed Name
7,/2020 - re/L ,,
Date Tile
7/6/2-0 2-0
Date
Purchase Order No. (Nii Fs to be submitted withthis signed
Agreement)
APPROVED AS TO FORM:
r
,2;t
Assistant City Attorney
61Date
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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 until OCTOBER 31, 2020, unless
sooner terminated as provided in Subsection 6;2,
6.2 Termination
6.2.1 The City and Provider may terminate this Agreement by mutual agreement at any time.
6.2.2 The City may, upon not less than thirty(30) days' prior written notice,terminate this Agreement
for any reason deemed appropriate in its sole discretion.
6.2.3 Either party may terminate this Agreement, with cause,by not less than fourteen(14) days' prior
written notice if the cause is not cured within that fourteen (14) day period after written notice.
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 he given in
writing to the other party by personal delivery, bysending via a reputable commercial overnight courier,or f'
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
Attn: Stu Green
20 E. Main Street
Ashland,Oregon 97520
Phoney(541)488-6002
With a copy to:
City of Ashland—Legal Department
20 E.Main Street
Ashland,Oregon 97520
If to Provider:
Durst Energy LLC
Richard E.Durst
142
Belle Ct.
Oregon City,Oregon 97045
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. PROVIDER'S COMPLIANCE WITH TAX LAWS
9.1 Provider represents and warrants to the City that:
9.1.1 Provider shall, throughout the term of this Agreement; including any extensions hereof, comply
with: -
(i) All 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
Provider;and •
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