HomeMy WebLinkAbout2007-272 Agrmt - Hamby Young
PROCUREMENT AGREEMENT
[Distribution Rack Expansion Project Structures and Electrical Equipment]
THIS PROCUREMENT AGREEMENT hereinafter referred to as "Agreement" or "Contract" is
between the City of Ashland, Oregon, a municipal corporation, hereinafter referred to as ("City"
"0 ") d ' . \., - " C ~( r-- \, tt_,t ---
or wner, an ,) I a !J'I\a(,,\Cl'l ~':- It\tc,).'\)
corporation, hereinafter refer e to as ("Seller" or "Contractor"). This Contract is effective on
the date it has been signed by all parties and all required City of Ashland approvals have been
obtained. This Contract expires on: the later of ~C:'\"-V\i\\ eX\ 20-, the date all warranties
have expired or the date Seller has completed delivery of all Goods and Services in accordance
with the requirements of this Contract, as determined by City. The parties may extend the term
of this Contract provided that the total Contract term does not extend beyond
( { \ \ \ ~C '6 . (Dates to be filled in at the time of signing.)
1. CONTRACT DOCUMENTS.
This Procurement Agreement includes and incorporates by reference all Contract
Documents, as defined in General Conditions, paragraph 1.1) , including but not limited to
the following specific documents: the Invitation for Proposals, Instructions to Proposers,
Executed Proposal dated iX'\*, ,'2. 2007, Proposal Security, Executed Procurement
Agreement, together with all Addenda, modifications and approved Change Orders,
Procurement General Conditions and Specifications, attached hereto or referenced herein,
all said documents being incorporated herein and made a part hereof by this reference.
2. GOODS AND SERVICES.
City agrees to purchase and Seller agrees to sell, furnish and deliver the Goods and
Services as specified and indicated in the Contract Documents, including specifically
proposal form, generally described as distribution rack expansion project steel structures
and electrical equipment, for the benefit of City of Ashland, subject to all terms and
conditions of the Contract Documents. The Following are the required Goods, Services
and Delivery Schedule:
Seller shall deliver to City the following Goods and Services for the prices specified in the
Executed Proposal.
A. GOODS.
i. Description and Quantity: See Proposal Document
B. SERVICES.
i. Services shall be as stated in the submitted Proposal Document.
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C. DELIVERY. (See also Paragraph 11, General Conditions)
i. Seller shall deliver Goods to City and shall perform Services, if any,
at the following address: Mountain Avenue Substation, located east ofN. Mountain
Avenue approximately 200 feet south of the N. Mountain Avenue and Heresy Street
intersection, Ashland, OR 97520.
ii. Seller shall deliver Goods
F.O.B. place of destination.
Seller shall retain the risk of loss of Goods until City accepts Goods in accordance with
section 4.0.
iii. Seller shall deliver Goods
Steel Structures: febluat)' 4,2008 FcbrtUtry 15,2008
Electrical Equipment: MMeft 17, 2008 MMeft 28, 200&
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iv. Seller shall complete all Services
No later than 1\Ia. ,Ik 28, 2998. 11\ CLj ~1:3, .10e '6
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3. SPECIFICATIONS. ,U
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Seller shall deliver all Goods and Services specified in section 2 in accordance with this section
3. Seller's failure to deliver Goods and Services in accordance with the provisions of this
Contract is a material breach of this Contract.
A. GENERAL PROVISIONS.
i. NON-COMPLIANCE. If any Goods or component parts are recalled by a regulatory
body or the manufacturer, or discovered by Seller not to comply with applicable
regulatory standards or the Specifications, Seller shall immediately notify City of the
recall or non-compliance, and shall provide copies of the recall notice or notice of non-
compliance, as applicable, and all other supporting documentation for the recall or non-
compliance determination. City may elect to (a) reject Goods in whole or in part, or (b)
revoke its acceptance of Goods in whole or in part. If City rejects Goods or revokes its
acceptance of Goods, Seller shall remove the particular Goods from City's possession
as provided in section 4.D.iv at no cost to City and shall reimburse City for all
payments made for those Goods.
ii. STANDARD COMPONENTS. Unless specified otherwise in this section 3,
Specifications, Seller shall provide Goods with all components and accessories that the
manufacturer lists as "standard" for Goods.
iii. NECESSARY COMPONENTS. Unless specified otherwise in this section 3,
Specifications, Seller shall include all components, hardware and parts necessary for
complete and proper assembly, installation and operation of Goods.
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iv. NEW AND UNUSED GOODS. Unless specified otherwise in this section 3,
Specifications, Seller shall deliver Goods that are new, unused and produced from
current production inventory. Seller shall provide Goods manufactured from only those
components that the manufacturer offers in the manufacturer's current parts catalogue
for Goods.
B. DETAILED SPECIFICATIONS.
All goods shall meet or exceed all SPECIFICATIONS in the Contract Documents
including specifically the specifications for Substation Equipment and Steel Structures
(Part 4),
4. TERMS AND CONDITIONS.
A. PAYMENT.
i. City's Payment. City shall pay Seller for Goods delivered and Services performed at
the prices and rates specified in the Contract Documents and summarized in section 2.
Seller shall look solely to City for payment of all amounts City owes to Seller. Seller
shall not be compensated by any agency other than City for Goods delivered or
Services performed.
ii. If Seller is a nonresident alien as defined in 26 USC ~ 7701 (b)(1 )(B), then Seller
shall, upon execution of this Contract, deliver to City a completed and signed W-8
form, 8233 form, or W-9 form, as applicable, from the IRS, as evidence that City is not
required by 26 USC 1441 to withhold part of Seller's payment. Such forms are
currently available at hnpj/~:Y\y':~y"jI?.,g,QY. City may withhold payments to Seller
pending City's receipt from Seller of the applicable, completed and signed form. If City
does not receive the applicable, completed and signed form from Seller, or if the
IRS provides notice to City that Seller's information on the form provided is incorrect,
City will withhold as federal income tax 30% of all amounts City owes to Seller under
this Contract.
iii. Funds Available and Authorized; Payments. Seller understands and agrees that
City's payment of amounts under this Contract is contingent on City receiving funding,
appropriations, limitations, allotments or other expenditure authority at levels sufficient
to allow City, in the exercise of its reasonable administrative discretion, to make
payments under this Contract.
B. INVOICES.
i. Seller shall send invoices to City no more often than monthly after City's acceptance
in accordance with section 4.D of Goods delivered under this Contract. Seller shall send
invoices to City for completed Services no more often than monthly.
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ii. Seller shall send all invoices to the City mailing address specified in section 7 or to
any other address that City may indicate in writing to Seller. Seller shall include in each
InVOIce:
a. The Solicitation number if any, the Contract number if any;
b. The quantity of Goods ordered, the quantity of Goods delivered, the date
Goods were delivered, the price per unit, if applicable;
c. A detailed description of Services performed, including the name or names of
the individuals who performed Services and prepared the deliverables to
which the invoice applies, the dates Services were performed, all deliverables
delivered during the period of the invoices, the rate or rates for Services
performed, and the total cost of Services
d. Itemization and explanation of all expenses for which Seller claims
reimbursement authorized under this Contract; and
e. The total amount due, and the payment address.
C. MOST FAVORABLE PRICES AND TERMS.
Seller represents and warrants that all prices, terms and benefits offered by Seller under this
Contract are equal to or better than the equivalent prices, terms and benefits being offered
by Seller to any other City or local governmental entity or commercial customer.
i. If during the term of this Contract Seller enters any contract, agreement or
arrangement that provides lower prices, more favorable terms or greater benefits to any
other City or local governmental entity or commercial customer, Seller shall provide
the same price or prices, terms and benefits to City. The prices, terms and benefits shall
be effective as of the date Seller made the more favorable terms or greater benefits
available to any other City or local governmental entity or commercial customer. This
provision applies to comparable goods and services and to purchase volumes by City
that are not less than the purchase volumes of the City or local governmental entity or
commercial customer that has received the lower prices, greater benefits or more
favorable terms.
ii. Section 4.C.i does not apply to Seller's donations of comparable goods and services
to charitable, nonprofit or governmental entities if the donations are recognized as
donations and are deductible under the Federal Internal Revenue Code. These donations
are not considered contracts, agreements or arrangements with other City or local
governmental entities or commercial customers for purposes of section 4.C.i.
D. ACCEPTANCE, REJECTION AND REVOCATION OF ACCEPTANCE:
i. ACCEPTANCE. City shall test if City, in its sole discretion deems testing necessary,
inspect and either accept or reject Goods delivered within thirty (30) calendar days
from the date Seller delivers Goods to City. If City does not provide written notice of
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acceptance or rejection of Goods to Seller within one calendar year following the date
of delivery of Goods, City is deemed to have accepted Goods.
ii. REJECTION. If City rejects Goods, then City's written notice of rejection shall, at a
minimum, itemize the apparent defects and include:
a. a description of nonconformance between Goods delivered and the required
Specifications and warranties (including any variance from demonstrations or
sample characteristics of Goods if Seller provided demonstrations or samples);
b. a description of any other nonconformance of Goods (including late delivery);
and
c. a statement indicating whether Seller may cure the nonconformance and if so, the
method by which and time period within which Seller may cure.
iii. REVOCATION OF ACCEPTANCE. Notwithstanding City's acceptance of Goods
under section 4.D.i City may revoke its acceptance of Goods for nonconformance with
the Specifications. If City revokes acceptance of Goods, City shall deliver a written
notice of revocation of acceptance to Seller that includes the same information required
for a written notice ofrejection under section 4.D.ii.
iv. EFFECT OF REJECTION OR REVOCATION OF ACCEPTANCE. If City rejects
Goods or revokes its acceptance of Goods, Seller shall refund all payments City has
made to Seller for those Goods and shall, at no cost to City, remove Goods from City's
possession within fifteen (15) calendar days following the later of the date of City's
notice ofrej ection, the date of City's notice of revocation of acceptance, orthe date of
Seller's failure to cure if cure is permitted. Nothing contained in this section 4.D
precludes City from pursuing any remedies to which either may be entitled upon
rejection or revocation of acceptance of Goods or otherwise under this Contract.
v. The provisions of this section are in addition to and not in place of General Condition
4.
E. OTHER REPRESENTATIONS AND WARRANTIES.
All express and implied warranties that are applicable to goods under ORS Chapter 72
apply to Goods delivered under this Contract. Seller represents and further warrants that:
i. Seller has the authority to enter into and perform in accordance with this Contract,
and that this Contract, when executed and delivered, is a valid and binding obligation
of Seller that is enforceable in accordance with its terms;
ii. All Goods delivered to City are new, unused, current production models
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and are free from defects in materials, design and manufacture for in accordance with
General Conditions No.9 and as otherwise required in the Contract Documents
("Warranty Period"). Seller further represents and warrants that all Goods meet or
exceed all Specifications;
iii. All Goods delivered shall comply with all applicable federal health and safety
standards.
i v. Seller has the skill and knowledge possessed by well-informed members of its
industry, trade or profession and Seller will apply that skill and knowledge with care
and diligence and perform Services in a timely, professional and workmanlike manner
in accordance with standards applicable to Seller's industry, trade or profession; and
v. Seller is, and shall be at all times during the term of this Contract, qualified,
professionally competent and duly licensed to perform Services.
The warranties specified in this section 4.E are in addition to, and not in lieu of, any other
warranties provided in the Contract Documents and this Contract. All warranties are cumulative
and shall be interpreted broadly to give City the greatest warranty protection available.
F. MANUF ACTURER WARRANTIES.
At no charge to City, Seller shall transfer or cause the transfer of all manufacturers'
warranties for Goods and component parts, if any, to the City for City's benefit when Seller
delivers Goods to City. If a conflict or inconsistency exists between a manufacturer's
warranty and Seller's warranty, the warranty that provides the greatest benefit and
protection to City shall prevail.
G. COMPLIANCE WITH APPLICABLE LAWS AND STANDARDS.
i. Seller shall comply with all federal, City and local laws, regulations, and ordinances
applicable to this Contract or to Seller's obligations under this Contract, as they may be
adopted or amended from time to time.
ii. City's performance under this Contract is conditioned upon Seller's compliance with
the obligations intended for Sellers under ORS 279B.220, 279B.225 (if applicable to
this Contract), 279B.230 and 279B.235 (if applicable to this Contract), which are
incorporated into this Contract by reference. Seller shall, to the maximum extent
economically feasible in the performance of this Contract, use recycled paper (as defined
in ORS 279A.OI0(l)(ee)), recycled PETE products (as defined in ORS 279A.OI0(l)(ft)),
and other recycled plastic resin products and recycled products (as "recycled product" is
defined in ORS 279A.01O(l)(gg)).
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H. AMENDMENTS.
All amendments to this Contract are Unanticipated Amendments unless subsections ii and
iii of this section H are completed for Anticipated Amendments.
I. MATERIAL SAFETY DATA SHEET.
At the time Seller delivers Goods to City, Seller shall provide to City a "Material Safety
Data Sheet" as defined by (OSHA) for any Goods delivered which may release or
otherwise cause exposure to a hazardous chemical substance under normal conditions of
use. Seller shall properly label, tag or mark those Goods.
1. TIME IS OF THE ESSENCE.
Seller agrees that time is of the essence in the performance of this Contract.
K. FORCE OF NATURE.
Neither City nor Seller shall be responsible for any failure to perform or for any delay in
the performance of any obligation under this Contract caused by fire, riot, acts of God,
terrorism, war, or any other cause which is beyond the delaying or breaching entity's
reasonable control. Seller shall make all reasonable efforts to eliminate the cause of Seller's
delay or breach and shall, upon elimination of the cause, continue performing under this
Contract. City may terminate this Contract upon written notice to Seller after reasonably
determining that this delay or breach could likely prevent successful performance of this
Contract.
L. INSURANCE.
Seller shall obtain the insurance required under the Contract Documents (GC 10.1.5) prior
to performing under this Contract and shall maintain the required insurance throughout this
duration of this Contract and all Warranty Periods.
M. INDEPENDENT SELLER STATUS; RESPONSIBILITY FOR TAXES AND
WITHHOLDING
i. Seller shall perform all Services as an independent Seller. Although City may (a)
determine and modify the delivery schedule for Goods to be delivered and Services to
be performed and (b) evaluate the quality of the completed performance, City cannot
and will not control the means or manner of Seller's performance. Seller is responsible
for determining the appropriate means and manner of performing any Services required
under this Contract. Seller is not an "officer", "employee", or "agent" of City as those
terms are used in ORS 30.265.
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ii. If Seller is currently performing work for City or the federal government, Seller by
signature to this Contract declares and certifies that Seller's performance under this
Contract creates no potential or actual conflict of interest as defined by ORS 244 and
that no rules or regulations of Seller's employing City (City or federal) would prohibit
Seller's performance under this Contract.
iii. Seller shall payor cause to be paid all federal and City taxes applicable to Seller's
compensation under this Contract, and City will not withhold from Seller's
compensation any amount to cover Seller's federal or City tax obligations unless Seller
is subject to backup withholding. Seller is not eligible for any social security,
unemployment insurance or workers' compensation benefits from Seller's
compensation under this Contract.
N. INDEMNIFICATION.
i. GENERAL INDEMNITY. SELLER SHALL DEFEND, SAVE, HOLD
HARMLESS, AND INDEMNIFY CITY, ITS AGENCIES, OFFICERS, DIRECTORS,
AGENTS AND EMPLOYEES FROM AND AGAINST ALL CLAIMS, SUITS,
ACTIONS, LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES OF
ANY NATURE WHATSOEVER ("CLAIMS") RESULTING FROM, ARISING OUT
OF, OR RELATING TO THE ACTS OR OMISSIONS OF SELLER OR ITS
OFFICERS, EMPLOYEES, SUBSELLERS, OR AGENTS UNDER THIS
CONTRACT.
ii. INDEMNITY FOR INFRINGEMENT CLAIMS. WITHOUT LIMITING THE
GENERALITY OF SECTION 4.N.i, SELLER SHALL DEFEND, SAVE, HOLD
HARMLESS AND INDEMNIFY CITY, ITS AGENCIES, OFFICERS, DIRECTORS,
AGENTS, AND EMPLOYEES FROM AND AGAINST ALL CLAIMS, SUITS,
ACTIONS, LOSSES, DAMAGES, LIABILITIES, COSTS, AND EXPENSES,
INCLUDING ATTORNEYS FEES, ARISING OUT OF OR RELATING TO ANY
CLAIMS THAT THE WORK, THE WORK PRODUCT OR ANY OTHER
TANGIBLE OR INTANGIBLE ITEM DELIVERED UNDER THIS CONTRACT BY
SELLER THAT MAY BE THE SUBJECT OF PROTECTION UNDER ANY CITY
OR FEDERAL INTELLECTUAL PROPERTY LAW OR DOCTRINE, OR THE
CITY'S REASONABLE USE THEREOF, INFRINGES ANY PATENT,
COPYRIGHT, TRADE SECRET, TRADEMARK, TRADE DRESS, MASK WORK,
UTILITY DESIGN, OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY
("INFRINGEMENT CLAIM"); PROVIDED, THAT CITY SHALL PROVIDE
SELLER WITH PROMPT WRITTEN NOTICE OF ANY INFRINGEMENT CLAIM.
iii. CITY SHALL REASONABLY COOPERATE IN GOOD FAITH, AT SELLER'S
REASONABLE EXPENSE, IN THE DEFENSE OF CLAIMS AND
INFRINGEMENT CLAIMS, AND SELLER SHALL SELECT COUNSEL
REASONABLY ACCEPTABLE TO THE CITY TO DEFEND SUCH CLAIMS AND
INFRINGEMENT CLAIMS AND SHALL BEAR ALL COSTS OF SUCH
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COUNSEL. CITY MAY ELECT TO ASSUME ITS OWN DEFENSE WITH AN
ATTORNEY OF ITS OWN CHOICE AND AT ITS OWN EXPENSE AT ANY TIME
CITY DETERMINES IMPORT ANT GOVERNMENTAL INTERESTS ARE AT
STAKE. SUBJECT TO THE LIMITATIONS NOTED ABOVE, SELLER MAY
DEFEND SUCH CLAIMS AND INFRINGEMENT CLAIMS WITH COUNSEL OF
ITS OWN CHOOSING PROVIDED THAT NO SETTLEMENT OR COMPROMISE
OF ANY SUCH CLAIMS AND INFRINGEMENT CLAIMS SHALL OCCUR
WITHOUT THE CONSENT OF CITY, WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD, CONDITIONED OR DELAYED.
O. ASSIGNMENT OF ANTITRUST RIGHTS.
i. SELLER IRREVOCABLY ASSIGNS TO CITY ANY CLAIM FOR RELIEF OR
CAUSE OF ACTION WHICH SELLER NOW HAS OR WHICH MAY ACCRUE TO
SELLER IN THE FUTURE BY REASON OF ANY VIOLATION OF 15 U.S.C. S l-
IS OR ORS 646.725 OR ORS 646.730, IN CONNECTION WITH ANY GOODS OR
SERVICES PROVIDED TO SELLER FOR THE PURPOSE OF CARRYING OUT
SELLER'S OBLIGATIONS UNDER THIS CONTRACT, INCLUDING, AT CITY'S
OPTION, THE RIGHT TO CONTROL ANY SUCH LITIGATION ON SUCH
CLAIM FOR RELIEF OR CAUSE OF ACTION.
ii. SELLER SHALL REQUIRE ANY SUBSELLERS HIRED TO PERFORM ANY
OF SELLER'S DUTIES UNDER THIS CONTRACT TO IRREVOCABLY ASSIGN
TO CITY, AS THIRD PARTY BENEFICIARY, ANY RIGHT, TITLE OR INTEREST
THAT HAS ACCRUED OR WHICH MAY ACCRUE IN THE FUTURE BY
REASON OF ANY VIOLATION OF 15 U.S.c. S 1-15 OR ORS 646.725 OR ORS
646.730, IN CONNECTION WITH ANY GOODS OR SERVICES PROVIDED TO
THE SUBSELLER FOR THE PURPOSE OF CARRYING OUT THE SUBSELLER'S
OBLIGATIONS TO SELLER IN PURSUANCE OF THIS CONTRACT,
INCLUDING, AT CITY'S OPTION, THE RIGHT TO CONTROL ANY SUCH
LITIGATION ON SUCH CLAIM FOR RELIEF OR CAUSE OF ACTION.
P. EVENTS OF BREACH.
i. Breach by Seller. Seller breaches this Contract if:
a. Seller institutes or has instituted against it insolvency, receivership or bankruptcy
proceedings, makes an assignment for the benefit of creditors, or ceases doing
business on a regular basis;
b. Seller no longer holds a license or certificate that is required for Seller to perform
its obligations under this Contract and Seller has not obtained the required license
or certificate within fourteen (14) calendar days after delivery of City's notice of
breach or a longer period as City may specify in its notice; or
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c. Seller commits any material breach of any covenant, warranty, obligation or
certification under this Contract, and Seller fails to cure its breach within fourteen
(14) calendar days after delivery of City's notice of breach or within a longer
period as City may specify in its notice.
ii. Breach by City. City breaches this Contract if:
a. City fails to pay Seller any amount pursuant to the terms of this Contract, and
City fails to cure this failure within fourteen (14) business days after delivery of
Seller's notice of breach or within a longer period as Seller may specify in its
notice; or
b. City commits any material breach of its obligations under this Contract, fails to
perform its obligations hereunder within the time specified or any extension thereof,
and fails to cure its failure within fourteen (14) calendar days after delivery of
Seller's notice of breach or a longer period as Seller may specify in its notice.
Q. REMEDIES.
i. City's Remedies. If Seller is in breach under section 4.P.i, then in addition to the
remedies afforded elsewhere in this Contract, City shall be entitled to recover for any
and all damages suffered as the result of Seller's breach of this Contract, including but
not limited to direct, indirect, incidental and consequential damages, as provided in
ORS Chapter 72. City may, at its option, pursue any or all of the remedies available
under this Contract and at law or in equity, including, but not limited to:
a. Termination of this Contract under section 4.S.ii;
b. Withholding all amounts Seller has invoiced for Goods and Services that Seller is
obligated to but has failed to deliver or perform within any scheduled completion
dates or has performed inadequately or defectively;
c. Initiation of an action or proceeding for damages, specific performance,
declaratory or injunctive relief; or
d. Exercise of the right of setoff and withholding amounts otherwise due and owing
to Seller in an amount equal to City's setoff right, without penalty.
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. If Seller is found to not be in breach under section 4.P.i, the rights and
obligations of the parties shall be the same as if this Contract was terminated pursuant
to section 4.S.ii.a.
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ii. Seller's Remedies. If City terminates this Contract for convenience under section
4.S.ii.a, or if City is in breach under section 4.P.ii and whether or not Seller elects to
exercise its right to terminate this Contract under section 4.S.iii, Seller's sole remedy is a
claim against City for the unpaid price for any Goods delivered and accepted by City less
any claims City has against Seller and is as follows for unpaid Services completed and
accepted by City:
a. For Services compensable on an hourly basis, a claim against City for unpaid
invoices, hours worked but not yet invoiced, and authorized expenses for Services
completed and accepted by City less any claims City has against Seller.
b. For deliverable-based Services, a claim against City for the amount specified for
completing the deliverable multiplied by the percentage of Services completed and
accepted by City, less previous amounts paid and the amount of any claims City has
against Seller.
If previous amounts paid to Seller for Goods and Services exceed the amount due to Seller
under this section 4.Q.ii, Seller shall pay the excess amount to City immediately upon
written demand.
R. A TIORNEYS' FEES.
Except for defense costs and expenses pursuant to section 4.N, neither City nor Seller is
entitled to recover attorney's fees, court and investigative costs, or any other fees or
expenses associated with pursuing a remedy for damages arising out of or relating to this
Contract.
S. TERMINATION.
i. MUTUAL CONSENT. The Contract may be terminated at any time by mutual
written consent of the parties.
ii. City:
a. City may, at its sole discretion, terminate the Contract for its convenience upon
30 days written notice to Seller.
b. City may, in its sole discretion, terminate this Contract, immediately upon notice
to Seller, or at a later date as City may establish in its notice, upon the occurrence of
any of the following events:
1. City fails to receive funding, appropriations, limitations, allotments or other
expenditure authority at levels sufficient to allow City, in the exercise of its
reasonable administrative discretion, to make payments under this Contract;
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2. Federal or City laws, regulations, or guidelines are modified or interpreted in
a way that either the purchase of Goods or Services, or both, by the City under
this Contract is prohibited, or the City is prohibited from paying for Goods or
Services, or both, from the planned funding source; or
3. Seller commits any material breach of this Contract.
Seller shall stop performance under this Contract as directed by City in any written notice
of termination delivered to Seller under this section 4. S.ii.
iii. SELLER. Seller may terminate this Contract immediately upon written notice to
City, or at a later date as Seller may establish in its notice, if City is in breach under
section 4.P.ii.
T. INTELLECTUAL PROPERTY & OPEN SOURCE; TITLE TO GOODS.
i. New Works. All intellectual property rights in the Work Product created by Seller
under this Contract shall be the exclusive property of City. All Work Product authored
by Seller under this Contract shall be deemed "works made for hire" to the extent
permitted by the United States Copyright Act. To the extent City is not the owner of the
intellectual property rights in such Work Product, Seller hereby irrevocably assigns to
City any and all of its rights, title, and interest in such Work Product. Upon City's
reasonable request, Seller shall execute such further documents and instruments
reasonably necessary to fully vest such rights in City. Seller forever waives any and all
rights relating to such Work Product created under this Contract, including without
limitation, any and all rights arising under 17 USC ~ 106A or any other rights of
identification of authorship or rights of approval, restriction or limitation on use or
subsequent modifications.
ii. Seller Intellectual Property. If intellectual property rights in the Work Product are
Seller Intellectual Property, Seller hereby grants to City an irrevocable, non-exclusive,
perpetual, royalty-free license to use, make, reproduce, prepare derivative works based
upon, distribute copies of, perform and display the Seller Intellectual Property, and to
authorize others to do the same on City's behalf.
iii. Third Party Intellectual Property. To the extent Seller has the authority, Seller shall
sublicense or pass through to City all Third Party Intellectual Property. Seller represents
and warrants that it has provided written disclosure to City of all Third Party
Intellectual Property that must be independently licensed by City to fully enjoy the
benefit of the Work Product. If Seller failed to provide such written disclosure, Seller
shall secure on the City's behalf and in the name of the City, an irrevocable, non-
exclusive, perpetual, royalty-free license to use, make, reproduce, prepare derivative
works based upon, distribute copies of, perform and display the Third Party Intellectual
Property, and to authorize others to do the same on City's behalf.
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iv. Open Source Prohibited. Seller represents and warrants that the Work Product
contains no Open Source Elements.
v. Title to Goods. Title to Goods passes to City in accordance with ORS 72.4010.
U. ACCESS TO RECORDS.
Seller shall retain, maintain, and keep accessible all records relevant to this Contract
("Records") for six (6) years following Contract termination or full performance, the period
required by applicable law following Contract termination or full performance, or until the
conclusion of any audit, controversy or litigation arising out of or related to this Contract,
whichever ending date is later. Seller shall maintain all financial Records in accordance
with generally accepted accounting principles. During this Record-retention period, Seller
shall permit City, its duly authorized representatives, and the federal government access to
the Records at reasonable times and places for purposes of examination and copying.
V. NOTICES.
All notices required under this Contract shall be in writing and addressed to the party's
authorized representative. For City, the authorized representative is the City contact person
identified in Section 6. Seller's authorized representative is the contact person identified in
section 5. Mailed notices are deemed received five (5) days after the post mark date when
properly addressed and deposited prepaid into the U.S. postal service. Faxed notices are
deemed received upon electronic confirmation of successful transmission to the designated
fax number. Notices delivered by personal delivery are deemed received when delivered to
the address specified for the receiving party's authorized representative.
W. GOVERNING LAW.
The Contract is governed by and construed in accordance with the laws of City of Ashland
and the State of Oregon without regard to principles of conflicts of laws. To the extent not
modified by the terms of this Contract, the Uniform Commercial Code as codified in ORS
Chapters 71 and 72 governs Goods under this Contract. The applicability of the UN
Convention on Contracts for the International Sale of Goods is hereby expressly waived by
the parties, and it does not apply to this Contract.
x. VENUE; CONSENT TO JURISDICTION.
Any claim, action, suit or proceeding (collectively, "Proceeding") between City and Seller
that arises from or relates to this Contract shall be brought and conducted solely and
exclusively within the Circuit Court of Jackson County; provided, however, if a Proceeding
must be brought in a federal forum, then unless otherwise prohibited by law, it shall be
brought and conducted solely and exclusively within the United States District Court for
the District of Oregon. SELLER HEREBY CONSENTS TO THE IN PERSONAM
JURISDICTION OF THESE COURTS AND WAIVES ANY OBJECTION TO VENUE
903209.02
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(EQMT. PURCH.)
PROCUREMENT AGREEMENT
IN THESE COURTS AND ANY CLAIM THAT THE FORUM IS AN INCONVENIENT
FORUM. Nothing in these provisions shall be construed as a waiver of City's sovereign or
governmental immunity or a waiver of any defenses to Proceedings or jurisdiction based
thereon.
Y. SURVIVAL:
In addition to all provisions which by their nature extend beyond the Contract termination
or full performance, the following provisions shall remain in effect beyond any Contract
termination or full performance: sections 1,3, 4.A, 4.0, 4.E, 4.F, 4.L, 4.N, 4.0, 4.Q, 4.R,
4.T, 4.U, 4.W, 4.x, 4.Y, and 4.CC.
Z. SEVERABILITY.
If a court of competent j urisdiction declares any provision of this Contract to be illegal or
otherwise invalid, the validity of the remaining terms and provisions shall not be affected,
and the rights and obligations of the parties shall be construed and enforced as if this
Contract did not contain the particular provision held to be invalid.
AA. SUBCONTRACTS; ASSIGNMENT; SUCCESSORS.
i. SUBCONTRACTS. Seller shall not enter into any subcontracts for any Services
required under this Contract without City's prior written consent. In addition to any
other provisions City may require, Seller shall include in any permitted subcontract
provisions to ensure that City will receive the benefit of subSeller's performance as if
the subSeller were Seller with respect to sections 3, 4.E, 4.F, 4.1, 4.1, 4.N, 4.0, 4.T, 4.U,
4.W, 4.x, and 4.AA. City's consent to any subcontract shall not relieve Seller of any of
its duties or obligations under this Contract.
ii. Seller shall not assign, delegate or transfer any of its rights or obligations under this
Contract without City's prior written consent. City's written consent does not relieve
Seller of any obligations under this Contract, and any assignee, transferee, or delegate
is considered Seller's agent.
iii. The provisions of this Contract are binding upon, and inure to the benefit of the
parties and their respective successors and permitted assigns, if any.
BB. MERGER CLAUSE; AMENDMENT; WAIVER.
This Contract, including all Contract Documents, constitutes the entire agreement between
the parties on the subject matter thereof. There are no understandings, agreements or
representations, oral or written, not specified herein regarding this Contract. This Contract
may be amended to the extent permitted by applicable statutes and administrative rules. No
waiver, consent or amendment of terms of this Contract shall bind either party unless in
903209.02
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(EQMT. PURCH.)
PROCUREMENT AGREEMENT
writing and signed by City and Seller, and all necessary approvals have been obtained.
Waivers and consents shall be effective only in the specific instance and for the specific
purpose given. The failure of City to enforce any provision of this Contract shall not
constitute a waiver by City of that or any other provision.
CC. THIRD PARTY BENEFICIARIES.
City and Seller are the only parties to this Contract and are the only parties entitled to
enforce the terms of this Contract. Nothing in this Contract gives, is intended to give, or
shall be construed to give or provide any benefit or right not held by or made generally
available to the public, whether directly, indirectly or otherwise, to third persons unless the
third persons are individually identified by name herein and expressly described as
intended beneficiaries of the terms of this Contract. City is an intended beneficiary of the
terms of this Contract.
DD. COUNTERPARTS.
This Contract may be executed in several counterparts, all of which when taken together
shall constitute one agreement binding on all parties, notwithstanding that all parties are not
signatories to the same counterpart. Each copy of this Contract so executed shall constitute
an original.
5. CERTIFICATIONS AND SIGNATURE OF SELLER'S AUTHORIZED
REPRESENTATIVE.
THIS CONTRACT MUST BE SIGNED IN INK BY AN AUTHORIZED REPRESENT A TIVE
OF SELLER.
The undersigned certifies under penalty of perjmy both individually and on behalf of Seller that:
A. The undersigned is a duly authorized representative of Seller, has been authorized by
Seller to make all representations, attestations, and certifications contained in this Contract
and to execute this Contract on behalf of Seller;
B. The undersigned is authorized to act on behalf of Seller and that Seller is, to the best of
the undersigned's knowledge, not in violation of any Oregon Tax Laws. For purposes of
this certification, "Oregon Tax Laws" means a tax imposed by ORS 401.792 to 401.816
(Tax For Emergency Communications), 118 (Inheritance Tax), 314 (Income Tax), 316
(Personal Income Tax), 317 (Corporation Excise Tax), 318 (Corporation Income Tax), 320
(Amusement Device and Transient Lodging Taxes), 321 (Timber and Forestland Tax), 323
(Cigarettes and Tobacco Products Tax), and the elderly rental assistance program under
ORS 310.630 to 310.706; and any local taxes administered by the Department of Revenue
under ORS 305.620.
903209.02
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(EQMT. PURCH.)
PROCUREMENT AGREEMENT
C. To the best of the undersigned's knowledge, Seller has not discriminated against and
will not discriminate against minority, women or emerging small business enterprises
certified under ORS 200.055 in obtaining any required subcontracts.
D. Seller and Seller's employees and agents are not included on the list titled "Specially
Designated Nationals and Blocked Persons" maintained by the Office of Foreign Assets
Control of the United States Department of the Treasury and currently found at
http://w\v\v.treas. gov/off'ices/enforcement/ofac/sdn/tll sdn. pdf;
E. Seller's Federal Employee Identification Number or Social Security Number specified
below is correct;
F. Seller is bound by and will comply with all requirements, terms and conditions
contained in this Contract, the Contract documents and will provide Goods and Services in
accordance with the Specifications; and
G. Seller is / is not a nonresident alien as defined in 26 USC ~ 7701(b)(1) (check
one). See section 4.A.ii. \4^I"",~'1rsv~Jir. A ~\\ll~)\)rJ C9J-
)
\\, \~L,
Seller (print Seller' s name): W €., ~L. \) ~ IS", ~ \~ lYj\~N )
Authorized Signature: ~~. <;:;} ~
By (print name): RU88EIJ.. J. HAMBY
Director of Operatlone
Title:
Date: \ \ \t;~ \ D\
FEIN ID# or SSN# (required): 2S -- \1\ .~. )_3 L\ ~j
Seller's Contact Person (Type or Print): J\ji1 f \ ~\\ \ \ e (
Contact Telephone Number: d1!LJ ~)(O J - '6.~ ed 16
Contact Fax Number: ('j::)D ) t:xp:} - q(> l ~
.1 '\ (\
Contact E-Mail Address: ~ (\ H\l \ t (' ~~ \\(tn\J.Aj~ C\.i. i ~9 C C\ () )
Mailing Address: \~1.15 \\:\nCr'( (X<, \CULH\ )O~\ I..{l()C)-
903209,02
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(EQMT. PURCR)
PROCUREMENT AGREEMENT
6. SIGNATURE OF CITY'S AUTHORIZED REPRESENT A TIVE.
City accepts Seller's offer and awards this Contract to Seller for Goods and Service described in
this Contract.
City of Ashland, Oregon acting by and through
1" rrf.- i fAll,t- -r I/. / L 7) li-I MLT JI.1ip I
Authorized Signature: ~ ~
}, " (( -.----
By (print name): !J~ Lifi 1 LlM b$#~
Title: ihIHtIP S~~ / fU)4-NC4 'J)/~
(
Date: I~/ 2, 7;/ ~ 7
City's Contact Person (Type or Print): ~o# -:J vIA n 50 A)
Contact Telephone Number: ( 5lJ/) 552 - '23 0=1
Fax Number: ( .':?VI ) 55'2 - .J.z.I36
E-Mail Address:1-l.tZ/~ t'>1. e;; (i) a ~ iLl' ${ 4L / ~ {);e. L( ~:.
(j
/2 /J . / ./' V1 A .N Of A ( \Xl ~ ~ '.s ~1 /7 If) a7' '-?r,---; /')
City Mailing Address: 7 l/ ......'" / C/r (I' 11/,< r K /c" ".r-;/"J ,t.. (/l1'(.4l,,:> lY "- / -' ~ '-
/
903209.02
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(EQMT. PURCR)
PROCUREMENT AGREEMENT
Kari Olson - Mountain Ave Sub - Certificate of Insurance
Page 1
From:
To:
Date:
Subject:
"Joyel D. Miller" <jdmiller@hambyyoung.com>
'"olsonk@ashland.or.us''' <olsonk@ashland.or.us>
11/27/2007 1 :08:22 PM
Mountain Ave Sub - Certificate of Insurance
Please find attached the requested Certificate of Insurance for the Mountain Ave project.
Please let me know if you need anything further.
Thanks.
*
Regards,
Joyel Miller
Project Manager
Hamby Young
1245 Danner Dr.
Aurora, Ohio 44202
P: 800-726-8444 ext. 115
F: 330-562-4018
cc:
'Jerry Witkowski' <Jerry.Witkowski@cvoes.com>
ACORDTM CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DDIYYYY)
11/27/07
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
The HDH Group, Inc. P&C ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
US Steel Tower, Suite 1100 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
600 Grant Street
Pittsburgh, PA 15219-2804 INSURERS AFFORDING COVERAGE NAIC#
INSURED INSURER A Travelers Property Casualty of Amer 25674
WESCO International, Inc. & INSURER B: American Guarantee & Liability Ins. 26247
WESCO Distribution, Inc. INSURER C:
225 West Station Square, Suite 700 INSURER D'
Pittsburgh, PA 15219 INSURER E.
Client#. 19051
WESCO
COVERAGES
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
LTR NSR TYPE OF INSURANCE POLICY NUMBER P~AL+~~J~f8g~I~\E P%~fJ (~X~~'W~N LIMITS
A ~NERAL LIABILITY TC2JGLSA466K204A TI 06/04/07 06/04/08 EACH OCCURRENCE $1 000 000
.L OMERCIAL GENERAL LIABILITY DAMAGE TO RENTED $300 000
- CLAIMS MADE [iJ OCCUR MED EXP (Anyone person) $10 000
~ PERSONAL & ADV INJURY $1.000 000
f-- GENERAL AGGREGATE $4.000 000
GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS" COMP/OP AGG $4.000 000
nil" PRO. n
POLICY JECT LOC
A ~TOMOBILE LIABILITY TC2JCAP466K2026TIL 06/04/07 06/04/08 COMBINED SINGLE LIMIT
~ ANY AUTO (Ea accident) $2,000,000
- ALL OWNED AUTOS BODILY INJURY
$
SCHEDULED AUTOS (Per person)
-
~ HIRED AUTOS BODILY INJURY
$
~ NON-OWNED AUTOS (Per accident)
X Physical Damage PROPERTY DAMAGE
is Self-Insured (Per accident) $
RAGE LIABILITY AUTO ONLY" EA ACCIDENT $
ANY AUTO OTHER THAN EA ACC $
AUTO ONLY AGG $
B ~ESSlUMBRELLA LIABILITY AUC374484307 06/04/07 06/04/08 EACH OCCURRENCE $5 000 000
X OCCUR 0 CLAIMS MADE AGGREGATE $5 000.000
$
;1 DEDUCTIBLE $
X RETENTION $0 $
A WORKERS COMPENSATION AND TC2JUB466K197007 06/04/07 06/04/08 X I T~~VS;r~~~ I IOJ);"
A EMPLOYERS' LIABILITY TRJUB466K198207 06/04/07 06/04/08 E L EACH ACCIDENT $1 000000
ANY PROPRIETOR/PARTNER/EXECUTIVE
OFFICER/MEMBER EXCLUDED? E.L DISEASE. EA EMPLOYEE $1 000 000
If yes, describe under EL DISEASE. POLICY LIMIT $1.000 000
SPECIAL PROVISIONS below
OTHER
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS
WESCO International, Inc., WESCO Distribution, Inc. & any other organization, other than
a partnership or joint venture, over which WESCO maintains ownership or majority interest
on the effective date of the above referenced policies are included as Named Insureds.
(See Attached Descriptions)
CERTIFICATE HOLDER
CANCELLATION
City of Ashland
Mountain Avenue Substation
Attn: Scott Johnson
90 North Mountain Ave.
Ashland, OR 97520
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION
DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL ----30.- DAYS WRITTEN
NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL
IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR
ACORD 25 (2001/08) 1 of 3
#S172194/M160391
SZO
@ ACORD CORPORATION 1988
IMPORTANT
If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement
on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may
require an endorsement. A statement on this certificate does not confer rights to the certificate
holder in lieu of such endorsement(s).
DISCLAIMER
The Certificate of Insurance on the reverse side of this form does not constitute a contract between
the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it
affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon.
ACORD 25-5 (2001/08) 2 of 3
#S172194/M160391
DESCRIPTIONS (Continued from Page 1)
This certificate will not automatically renew upon expiration.
Requestor: T. Emmendorfer
Branch: #7672
Re: Project No. 903209.02
It is agreed that Hamby-Young and City of Ashland are included as
Additional Insured as respects the Distribution Rack Expansion Project
Steel Structures and Electrical Equipment.
AMS 25.3 (2001108)
3 of 3
#S172194/M160391
C!TY RECORDER
Page 1 / 1
~A'
CITY OF
ASHLAND
20 E MAIN ST.
ASHLAND, OR 97520
(541) 488-5300
~ r~;--,
VENDOR: 012849
HAMBY YOUNG
1245 DANNER DRIVE
AURORA, OH 44202
SHIP TO: Ashland Electric Department
(541) 488-5354
90 N MOUNTAIN
ASHLAND, OR 97520
FOB Point:
Terms: Net
Req. Del. Date:
Speciallnst:
Req. No.:
Dept.: ELECTRIC
Contact: Scott Johnson
Confirming? No
Distribution Rack Expansion Project
Contractor to deliver all materials and
services as specified in detail,
includinQ drawinQs, within the RFP.
134,261.00
Procurement AQreement
Completion date: May 23, 2008
Approved by Council: October 2, 2007
BILL TO: Account Payable
20 EAST MAIN ST
541-552-2028
ASHLAND, OR 97520
SUBTOTAL
TAX
FREIGHT
TOTAL
134 261.00
0.00
0.00
134,261.00
tt<J ~.-s:::::~?
VENDOR COPY
HAMBY YOUNG
A DIVISION of WESCO DISTRIBUTION, INC.
1245 DANNER DRIVE
AURORA, OHIO 44202
LETTER OF TRANSMITTAL
PHONE (330) 562-8444
FAX (330) 562-4018
Transmittal # 07-248-001
DATE 11/512007 IJOB NO 07-248
ATTENTION Kari Ann Olson
RE: Mountain Ave Sub Contract Return
.
TO City of Ashland
Purchasing Rep: Kari Ann Olson
90 N. Mountain Ave.
Ashland, Oregon 97520
WE ARE SENDING YOU ~ ATTACHED 0 UNDER SEPARATE COVER VIA UPS Next Day Air Early AM THE FOLLOWING ITEMS:
o SHOP DRAWINGS
o COpy OF LETTER
o PRINTS
o CHANGE ORDER
o PLANS
o SAMPLES
o SPECIFICATIONS
0-
COPIES DATE REV. NO. DESCRIPTION
2 11/5/07 Procurement Agreement for Mountain Ave Distribution Rack Expansion Project
THESE ARE TRANSMITTED as checked below:
o FOR APPROVAL
o FOR YOUR USE
181 AS REQUESTED
o FOR REVIEW and COMMENT
o FOR BIDS DUE
REMARKS
o APPROVED AS SUBMITTED
o APPROVED AS NOTED
o RETURNED FOR CORRECTIONS
o
o RESUBMIT
o SUBMIT
o RETURN
COPIES FOR APPROVAL
COPIES FOR DISTRIBUTION
CORRECTED PRINTS
o PRINTS RETURNED AFTER LOAN TO US
As requested by Jerry from CVO I am returning an original signed copy and a copy of the Procurement Agreement for
Mountain Ave Sub. Please advise if there are any problems.
COpy TO
SIGNED: Joyel Miller