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HomeMy WebLinkAbout2002-169 Agrmt - Qwest AGREEMENT FOR SERVICES [QWEST AS PROVIDER] THIS AGREEMENT FOR SERVICES ("Agreement") effective as of the 16t~ day of September, 2002 (the "Effective Date"), is made by and between Qwest Corporation, a Colorado corporation ("Qwest"), and City of Ashland Department of Electric Utilities, a government entity ("Ashland Electric"). RECITALS A. Qwest provides telecommunications services in Ashland, Oregon. Pursuant thereto, Qwest intends to perform the work described on Exhibit A attached hereto (the "Project"). B. Ashland Electric has requested that, as part of the Project, Qwest perform certain work for Ashland Electric, which work is more specifically described on Exhibit B attached hereto (the "Work"). In exchange for Qwest's performance of the Work, Ashland Electric has agreed to pay Qwest $7.95 for each Pole Inspection that is Ashland Electric owned and $4.725 for each Pole Inspection that is jointly used by both Qwest and Ashland Electric (the "Payment"). AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants, terms, conditions and obligations contained herein, and intending to be legally bound hereby, the parties hereby agree as follows: 1. Performance of Work. (a) In conjunction with its performance of the Project, Qwest, acting through its agent or contractor, shall perform the Work. Qwest agrees to complete the Work in accordance with all applicable laws and the requirements of those that own or have jurisdiction over the rights of way in which the Work is to be performed. (b) To the extent that performance of the Work requires the use or installation of any materials and unless as otherwise agreed to by the parties, Ashland Electric shall arrange for the purchase and delivery of such materials to Qwest. 2. Completion of Work. When Qwest reasonably determines that the Work is complete, Qwest shall notify Ashland Electric. Upon receipt of such notification, Ashland Electric shall have thirty (30) days to inspect the Work and to accept or reject the Work (specifying, if rejected, any reasonable objection to or deficiency in such Work) by delivery of written notice to Qwest. Ashland Electric's sole and exclusive remedy in the event that it rejects the Work is that Qwest will correct any deficiencies in the Work reasonably identified by Ashland Electric. Qwest shall correct any such deficiencies as soon as practicable upon receiving written notice of such deficiencies from Ashland Electric. Upon correction of any deficiencies identified by Ashland Electric, Qwest shall notify Ashland Electric and Ashland Electric shall again have thirty (30) days to inspect the Work and to accept or reject the Work. The foregoing procedure shall apply again and successively thereafter until Qwest has remedied ali deficiencies in the Work. If Ashland Electric fails to reject the Work within the thirty (30) day period set forth herein, the Work shall be deemed accepted by Ashland Electric 3. Change Orders. The parties may, by mutual written agreement, make changes in, additions to or deletions from the Work and, thereafter, Qwest shall proceed with the performance of the Work as so changed. a66172 I. I 17104-0000 10/08/02 7:04 AM In the event of any change in, addition to or deletion from the Work, the Payment shall be adjusted to compensate for increased or decreased costs resulting from such change, addition or deletion. If no agreement regarding changes to the Work and/or adjustments to the Payment resulting from changes to the Work can be reached, either of the parties may terminate the Work. However, in the event that either party terminates the Work pursuant to this Section 3, Ashland Electric shall pay to Qwest all costs for the Work incurred by Qwest as of the date of such termination, plus Qwest's reasonable demobilization and restoration costs incurred as a result of such termination. 4. Default/Remedies. A party shall be in default under this Agreement if it breaches any of its obligations set forth in this Agreement and fails to cure such breach within thirty (30) days following its receipt of written notice of the breach from the other party. In the event of Qwest's breach, Ashland Electric shall have no obligation to deliver all or any portion of the Payment to Qwest and may terminate this Agreement and/or pursue any other remedies that it may have at law or in equity. In the event of Ashland Electric's breach, Qwest may terminate this Agreement and recover from Ashland Electric any costs for the Work incurred by Qwest as of the date of such termination, plus Qwest's reasonable demobilization and restoration costs incurred as a result of such termination, and/or pursue any other remedies that it may have at law or in equity. Except as otherwise specifically set forth in this Agreement, in no event shall either party hereto be liable to the other, whether in contract or tort or otherwise, for special, incidental, indirect or consequential damages, including without limitation lost profits or revenues, arising from or relating to the performance or non-performance of the obligations set forth in this Agreement. 5. Maintenance. Following completion and acceptance of the Work and delivery of the entire Payment to Qwest as set forth in Section 7, the Work and the materials or facilities installed by Qwest as part of the Work shall be the property of Ashland Electric, and Ashland Electric shall be solely responsible for performing, at its own cost and expense, all maintenance and repairs on the Work and any materials or facilities installed by Qwest for Ashland Electric as part of the Work. Ashland Electric hereby agrees and acknowledges that, in order to perform maintenance on the Work and any materials or facilities installed by Qwest as part of the Work, it has obtained or will obtain a right to access the Work independent from Qwest's right to access the Project and the Work. 6. Approvals. Following completion and acceptance of the Work, Ashland Electric shall be responsible for obtaining in its own name any permits, licenses, approvals or agreements from private persons or entities or governmental authorities necessary to occupy, use or operate the Work or any materials or facilities installed by Qwest for Ashland Electric as part of the Work. Ashland Electric's inability or failure to obtain all such necessary permits, licenses, approvals or agreements shall not relieve Ashland Electric from its obligation to deliver the Payment to Qwest. 7. Delivery of Payment. [Applicable to Governmental Entities] Upon Ashland Electric's acceptance of the Work, Ashland Electric shall deliver the Payment, without deduction or offset, to Qwest. If Ashland Electric fails to deliver the Payment to Qwest as set forth herein, Ashland Electric shall be required to pay interest of one and one-half (I -1 /2) percent per month on any unpaid amount and Qwest's reasonable costs of collecting the Payment from Ashland Electric, including, but not limited to, reasonable attorneys' fees. [Applicable to Corporations] Within ten (10) days following execution of this Agreement, Ashland Electric shall deliver 0% of the Payment to Qwest (the "Initial Payment"). Qwest shall have no obligation to commence the Work until it receives the Initial Payment. Upon Ashland Electric's acceptance of the Work, Ashland Electric shall deliver the remaining portion of the Payment, without deduction or offset, to Qwest. If Ashland Electric fails to deliver the Payment to Qwest as set forth herein, Ashland Electric shall be required to pay interest of one and one-half (I -1 /2) percent per month on any unpaid amount and Qwest's "661721.117104-0000 10/08/02 7:04 AM 2 reasonable costs of collecting the Payment from Ashland Electric, including, but not limited to, reasonable attorneys' fees. 8. Notices. All notices shall be in writing and shall be delivered by certified mail return receipt requested or any other delivery system which is capable of providing proof of delivery. Any such notice shall be deemed effective on the date of mailing. All notices shall be addressed to the parties as specified below: If to Qwest: Qwest Corporation 8021 SW Capitol Hill Road, Rm. 140 Portland, OR 97219 Attention: Shannon Moore If to Ashland Electric: Ashland Electric 90 N. Mountain Ave Ashland, OR 97520 Attention: Scott Johnson Either party may change the above addresses to which notices are sent by giving notice of such change to the other party in accordance with the provisions of this Section. 9. Governing Law. This Agreement shall be governed by and interpreted in accordance with the substantive laws of the state in which the Work will be performed, without reference to its conflicts of laws principles. 10. Warranty. Qwest warrants that, upon acceptance by Ashland Electric the Work shall be free from material defects, deviations, errors and omissions in its construction and workmanship. Qwest shall, following Ashland Electric's acceptance of the Work, cause all warranties or guarantees received by Qwest with respect to the Work from any manufacturer, contractor or vendor that performed any of the Work or that supplied any materials used in the performance of the Work to be partially assigned to Ashland Electric wherever practicable and assignable. QWEST MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE WORK, INCLUDING ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED. IN ADDITION, QWEST MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY TYPE CONCERNING THE INTEGRITY OR PERFORMANCE OF THE MATERIALS FURNISHED OR DESIGNATED BY Ashland Electric. Qwest's warranty contained herein shall extend for, and be limited to, a period of ninety (90) days following the date that Ashland Electric accepts the Work. If, within such ninety (90) day period, Ashland Electric discovers any defect in the Work, Qwest shall, within fifteen (15) days following receipt of written notice of such defect from Ashland Electric, inspect and correct any such defect, at Qwest's sole cost and expense, or notify Ashland Electric of its dispute as to the existence of any defect in the Work. Qwest's correction of any defect identified by Ashland Electric within the ninety (90) day warranty period shall be Ashland Electric's sole and exclusive remedy in the event that Ashland Electric identifies a defect in the Work. 11. Entire Agreement. This Agreement, including all Exhibits, contains the entire agreement between the parties and supersedes all prior oral or written agreements with respect to the subject matter hereof. This Agreement may not be amended or modified except by a written instrument executed by the parties hereto. 12. Binding. The terms, covenants and conditions contained in this Agreement shall be binding on and inure to the benefit of the parties and their respective successors and assigns. #661721.1 17104-0000 10/08/02 7:04 AM 3 13. Authority. Each party represents and warrants that it has the authority to execute, deliver and perform under this Agreement. 14. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one agreement. [Signature Page Follows] #661721.1 17104-0000 10/08/02 7:04 AM 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the Effective Date. QWEST CORPORATION, a Colorado corporation By: Name: • w Title: cda.•`L? Date: 10 - 15'- ©TZ? Ashland Electric, a government entity B: Na Q rxo Ti Date: !D - $ - G 2 Approved as to legal form on: August 14, 2002 By: Ruth Benston, Manager Contracts 4661721.1 17104-0000 10/08/02 7:04 AM 5 EXHIBIT A DESCRIPTION OF THE PROJECT POLE OWNER INSPECTION CRITERIA 1. NESC facility inspection including: clearances at pole, climbing space, clearance between poles, clearance at service termination, ground clearance, clearance between communication conductors and grounding and bonding. Any violations must be identified by infraction and parties involved. A. Provide profile of attachments identifying attachment owners and distances. B. Suggest least cost option for correction 2. Identify owner of all attachments 3. Check for pole owner identification tag 4. Inspect for Proper guying and anchoring of pole. Install guy guards as needed. 5. Inspect for loose and/or damaged hardware and equipment 6. Inspect for illegal pole attachments (i.e. non-utility attachments) 7. Inspect pole for structure issues such as leaning, too close to structures, adequate base support, structure damage, "belly button" tag above 8 foot 8. Identify any abandon poles, double poles or facilities that need to be transferred. If there are attached facilities, please identify owner and attachment heights 9. Identify any needed tree trimming 4661721.1 17104-0000 10/08/02'7:04 AM 6 EXHIBIT B DESCRIPTION OF THE WORK 10. NESC facility inspection including: clearances at pole, climbing space, clearance between poles, clearance at service termination, ground clearance, clearance between communication conductors and grounding and bonding. Any violations must be identified by infraction and parties involved. A. Provide profile of attachments identifying attachment owners and distances. B. Suggest least cost option for correction 11. Identify owner of all attachments 12. Check for pole owner identification tag 13. Inspect for Proper guying and anchoring of pole. Install guy guards as needed. 14. Inspect for loose and/or damaged hardware and equipment 15. Inspect for illegal pole attachments (i.e. non-utility attachments) 16. Inspect pole for structure issues such as leaning, too close to structures, adequate base support, structure damage, "belly button" tag above 8 foot 17. Identify any abandon poles, double poles or facilities that need to be transferred. If there are attached facilities, please identify owner and attachment heights 18. Identify any needed tree trimming 4661721.1 17104-0000 10/08/02 7:04 AM 7 Shannon Moore 8021 SW Capitol Hill Rd. Room 140 -- W e~ $ t, Portland, OR 97219 October 15, 2002 City of Ashland Attn: Scott JOhnson 90 N Mountain Ave Ashland, OR 97520 Dear Mr. Johnson: Enclosed is your copy of the Agreement for Services for the Pole Owner Inspection Project in Ashland, Oregon. Should you have any questions, I can be reached on 503-242-8928. Sincerely, USA CITY RECORDER'S C PY Page 1/1 CITY OF ASHLAND 20 E MAIN ST. PO NUMBER ASHLAND, OR 97520 10/28/2002 03705 (541) 488-5300 VENDOR: 006415 SHIP TO: Ashland Electric Department QWEST (541) 488-5354 8021 SW CAPITOL HILL ROAD ROOM 90 N MOUNTAIN PORTLAND, OR 97219 ASHLAND, OR 97520 FOB Point Req. No.: Terms: Net Dept.: ELECTRIC Req. Del, Date: Contact: D. Wanderscheid/S. Johnson Special Inst Confirming? NO Quantity Jnit Description Unit Price Ext. Price Utility Pole Inspection Project - Qwest 15,000.00 facilitated bid and contract process. City to be billed bv Qwest for City's portion of services. City to pay Qwest $7.95 for each Pole Inspection that is Ashland Electric owned and $4.725 for each Pole Inspection that is jointly used by both Qwest and Ashland Electric. Approximate amount of ~ services is estimated to be $15,000. SUBTOTAL 15,000.00 BILL TO: Accou~q Payable TAX 0.00 20 EAST MAIN ST FREIGHT 0.00 541 2-2010 TOTAL 15,000.00 ASHLAND, OR 97520 Account Number Amount Account Number Amount .... E 6_90.11.18.00.602400 15,000.00 A~h~rized Signature VENDOR COPY CITY OF -A5 H LAN D REQUISITION FORM THIS REQUEST IS A: ? Change Order(existing PO # ) Date of Request: Required Date of Delivery/Service: Vendor Name: i?Ut i Address: City, State, Zip: Phone: Fax Number Deliver Location Services Only Description Total Cnct Snlici+a4in5n ?? _ ( - - - coo 15 Exempt 3 Written Quotes (copies attached) F (A T Z--,D L ? Sole Source Invitation to Bid (copies on file) ?U?? ((??y) ; j Q?,? ?;?, i (mot 7-7 LS 7 JLDn OA) ? Less than $5000 ? Request for Proposal (copies on file) Account NumberCWC2 / 1-1 - 4 'Please attach the Original signed contract and Insurance certificate. Materials Only Account Number 'Please attach the quotes. Employee Signatu • A s ? Supervisor/Dept. Head Signature: affmizloz? -.16 Z" NOTE. By signing this requisition form, / certify that the above request meets the City of Ashland Solicitation Process requi ments and can be provided when necessary. G:FinancelProcedurelAPlFormsl8_Requisition form.doc Updated on:07/15/02 Item # Quantity Unit Description Unit Cost Total Cost