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HomeMy WebLinkAbout2020-106 Agrmt-Pathway Enterprises,Inc GOODS &SERVICES AGREEMENT PROVIDER: Pathway Enterprises,Inc. CITY OF H'LAN D. PROVIDER'S CONTACT: Richard Simpson 20 East MainStreet ADDRESS 1600 Sky Park Drive, Suite No. 101 Ashland, Oregon 97520 Medford, Oregon 97504 Telephone: 541/488-5587 Fax: 541/488-6006 PHONE: ..541-973-2728 EMAIL: rpspei@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 Pathway Enterprises, Inc., a•domestic business corporation("hereinafter"Provider"), for Janitorial Services. 1. PROVIDER'S OBLIGATIONS 1.1 : Provide;janitorial services for City facilities, including facilities for the Parks Department and the Fire Department, as set forth in the "SUPPORTING DOCUMENTS" which are 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 orextension 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 witha combined single limit, or the equivalent, of not less than $2,000,000 (two million dollars)per occurrence for Bodily Injuryand Property YDamagge. 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. • Workers' Compensation 1.2.2 Each policy of such insurance shall be ion 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; • Apply toeach 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; Page 1 of 6: Agreement between the City of Ashland and Pathway Enterprises,Inc. . • 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 are 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 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 Provider. Provider agrees to comply with all applicable requirements of • federal and state civil rights and:rehabilitation statutes, rules and regulations. Further, Provider agrees not to discriminateagainst 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 or leases 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 Living Wage Requirements: If the amount of this Agreement is $21,507.75 or more, Provider is required to comply with Chapter 3.12 ofthe 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. 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 sums as specified in the SUPPORTING DOCUMENTS: (Costing Workbooks) as full compensation for the Work to be performed pursuant to this Agreement. 2.2 In no event shall Provider's total of all compensation and reimbursement under this Agreement exceed the sums of $139,649.52 (one:hundred and thirty-nine thousand six hundred and forty-nine dollars and fifty-two cents)for City facilities, $53,761.47(fifty-three thousand seven hundred and sixty-one dollars and forty-seven cents)for Parks.facilities; $167,503.54(one hundred and sixty- seven thousand five hundred and three dollars and fifty-four cents)for Parks trash and restrooms; _ and$6,594.83.(six thousand five hundred and ninety-four dollars and eighty-three cents)for Fire facilities without the express,written approval from the City official whose signature appears below,or such official's successor in office. Provider expressly acknowledges that no otherperson 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 expenses incurred without authorization as provided herein is done at Provider's. own risk and:as a volunteer without expectation of compensation or reimbursement, Page 2 of 6: Agreement between the.City of Ashland and Pathway Enterprises,Inc. 1 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 Provider or 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. 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 and cancel this Page 3 of 6: Agreement between the City of Ashland and Pathway Enterprises,Inc. 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 incorporated in this Agreement,and are collectively referred to in this Agreement as the "SUPPORTING DOCUMENTS:" • Costing Workbook for Janitorial Services/QRF Program - CITY facilities: $139,649.52 • Costing Workbook for Janitorial Services/QRF Program -PARKS facilities: $53,761.47 • Costing Workbook for Janitorial Services/QRF Program—PARKS trash/restrooms: $167,503.54 • Costing Workbook for Janitorial Services/QRF Program -FIRE facilities: $6,594.83 5. REMEDIES - 5.1 In the event Provider 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; 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 This Agreement shall be effective July 1, 2020 (the "Effective Date") and shall continue in full force and effect until June 30,2021, 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 inadditionto and not in lieu of any other remedy at law or equity. • Page 4 of 6: Agreement between the City of Ashland and Pathway Enterprises,Inc. 7. NOTICE Whenever notice is required or permitted to be given under this Agreement, such notice shall be given in writing to the other party 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 Attention: Wes Hoadley,'Facilities Maintenance Supervisor(City) Attention: Rachel Dials, Recreation Superintendent(Parks) Attention: David Shepherd,Fire Chief(Fire) 20 E. Main Street Ashland, Oregon 97520 Phone: (541)488-5354 • With a copy to: City of Ashland—Legal Department 20 E. Main Street • Ashland, Oregon 97520 • Phone: (541)488-5350 If to Provider: Pathway Enterprises, Inc. Attn: Richard Simpson 1600 Sky Park Drive, Suite No. 101 Medford, Oregon 97504 Phone: (541) 973-2827 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 (iii) Any rules, 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 Date of 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 3.16, 317, and 318; (ii) Any tax provisions imposed by a political subdivision of the State of Oregon applicable to Provider; and ' Page 5 of 6: Agreement between the City of Ashland and Pathway Enterprises,Inc. (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,at law;or in equity. ' . i IN WITNESS WHEREOF the parties have caused this Agreement to be signed in their respective names by I their duly authorized representatives as of the dates set forth below. ( CITY OF ASHLAND: PATHWAY ENTE' ' .� ',INC. (PROVIDER): /��- B By: /'G y:. dile City Administrator V t,3Yj'� a!i., ;�l,,6 - ? S chorcx Soy,i• soo • Printed Name Printed Name 7 .4://.,2 ozo CO{\A-VOLC D; ,e Nror- • Date Title (oI % / zozo Date . Purchase Order No. - . _ (W-9 is to be submitted with this signed agreement.) APPROVED AS TO FORM: V • Assistant City Attorney / .a V / { { Date - i • j Page 6 of 6: Agreement between the City of Ashland and Pathway Enterprises,Inc. t EXHIBIT A CITY OF ASHLAND. OREGON City of Ashland. LIVING ALL employers described _ WAG E below must comply with City of Ashland laws regulating payment of a living wage_ . .. BEEper hour, effective June 30,2020, The Living Wage is adjusted annually every June 30 by the Consumer Price Index, _ J Employees must be paid a porton of business of their 401K and IRS eligible Bring wage: employer,if the employer has cafeteria plans(including ten or more employees,and cl ildceae)benefits to the has received financial • . amount of wages received by For all hours worked under a assistance for the prccect or the employee. service contract between their business from the City of emplo y and tie City of Ashland in excess of > Note: Fortemporary and Ashland if the contract 522,002.43. pari-time employees;the exceeds S224102.43 or more. LivingWage does not apply ' > If their employer is the City of to the first 1040 hours worked For all hours worked a Ashland,including the Patios in any calendar year. For month if the employee spends and Recreation Department, more details,please see monor more of foe Ashland Municipal Code 50%employee's time in that month ). In calculating Me living wage, Section 3.12.020. working on a e jest or employers may add the valve of health care,retirement, For additional information: Call the Ashland City Administrator's office at 541-488-6002 or write to the City Administrator, City Hall,20 East Main Street,Ashland,OR 97520,or visit the City's website at www_ashland.or.us. Notice to Employers: This notice must be posted predominantly in areas where it can be • seen by all employees_ CITY OF ASHLAND Exhibit A: Agreement between the City of Ashland and Pathway Enterprises,Inc.