CONTRACT FOR PREPURCHASE OF EQUIPMENT FOR MEDIUM VOLTAGE MAIN SWITCHGEAR PPS-1 REPLACEMENT PROJECT NO RECITALS

Transcription

1 CONTRACT FOR PREPURCHASE OF EQUIPMENT FOR MEDIUM VOLTAGE MAIN SWITCHGEAR PPS-1 REPLACEMENT PROJECT NO This Contract, dated (District) and Crescent Electric Supply Company (Seller)., is between Clean Water Services RECITALS 1. Seller has submitted a bid to District for the sale of certain goods and services. 2. District and Seller wish to enter into a Contract under which District shall purchase the goods and services from Seller. 1. Description TERMS AND CONDITIONS District shall purchase the Goods and Services described in Exhibit A, attached hereto and incorporated herein. 2. Price/Payment District shall pay Seller for the goods, free on board (F.O.B.), Rock Creek Advanced Wastewater Treatment Facility, 3235 SE River Road, Hillsboro OR 97123, the total purchase price of $1,186,000. The total purchase price shall be considered payment for all of Seller s obligations described in this Contract. Seller shall invoice District 80% of the total purchase price upon the delivery of the Goods. Seller shall invoice District the remaining 20% of the total purchase price upon substantial completion of the Services. District shall have 30 days after the receipt of Seller s invoice in which to make payment. Seller shall be responsible for the payment of all taxes associated with the sale of the goods. District is exempt from the payment of Federal Excise Tax. 3. Delivery/Performance Time is of the essence in the performance of this Contract. Seller shall deliver the Goods by no later than May 1, 2017 (Required Delivery Date). Following delivery, District and Seller, if available, shall inspect the Goods and shall prepare a written description of all damaged items. Substantial Completion: Seller shall substantially complete all of the Services by no later August 30, 2017 (Required Performance Date). Final Completion: Seller shall finally complete all Services by no later than October 30, If Seller fails to deliver the goods by the Required Delivery Date or perform the Services by the Required Performance Date and the delay is not an excusable delay in accordance with Paragraph 4, District will incur damages. The parties agree that the damages caused Page 1 Contract for Prepurchase of Equipment for Medium Voltage Main Switchgear Replacement

2 by the delay will be difficult or impractical to determine. If such a delay occurs, Seller shall pay to District, not as a penalty but as liquidated damages, the sum of $300 per day for each day that the date of delivery of the Goods exceeds the Required Delivery Date or the Seller s performance of the Services exceeds the Required Performance Date up to and including September 30, For each day after September 30, 2017 that Seller fails to deliver the Goods or perform the Services, Seller shall pay District, not as a penalty, but as liquidated damages the sum of $1,500. The payment of liquidated damages shall not constitute a waiver of District's right to collect additional damages for Seller's failure to deliver the Goods or perform the Services. 4. Excusable Delays Neither District nor Seller shall be responsible for or liable for damages resulting from delays due to causes beyond their reasonable control, including, but not limited to, acts of God, acts or omissions of governmental authorities, strikes, lockouts, acts of the public enemy, wars, blockades or civil disturbances. In the event of such a delay, Seller s Required Delivery Date and Required Performance Date shall be extended for a period equal to the length of the delay. Seller shall notify District in writing not more than ten days after the occurrence of any event that Seller believes will result in such a delay. The failure of Seller to provide such notice shall result in a waiver of Seller s right to claim that the delay is excusable. 5. Installation District s contractor shall install the Goods. Seller shall supervise District s installation of the Goods. Upon completion of the installation of the Goods, Seller shall submit to District a written certification that the Goods have been installed in accordance with the instructions of Seller and the manufacturers of the Goods components. 6. Testing Seller shall test the Goods following installation as described in Exhibit A. 7. Pre-Operational Scheduling Seller shall coordinate Seller s work so as to minimize interference with District s operations. 8. Repair of Damage Seller shall promptly repair all damage to District s premises caused by Seller. Seller shall repair the premises to its original condition and in a manner that does not result in the cancellation or impairment of warranties issued by third parties concerning any portion of the premises. 9. Training Seller shall provide training to District s personnel in the proper operation and maintenance of the Goods as described in Exhibit A. Page 2 Contract for Prepurchase of Equipment for Medium Voltage Main Switchgear Replacement

3 10. Operations Manuals Seller shall deliver to District five bound original publications of applicable operations and maintenance manuals for the goods. The manuals shall contain all information necessary to operate, maintain and repair the goods. Seller shall deliver the manuals no later than the date the goods are delivered. In addition, Seller shall enclose one electronic copy of the Operations and Maintenance manual in each hard-copy version. Electronic documentation shall be provided on standard CD-ROM media capable of being read by standard PC CD-ROM drives. All documents shall be provided in Adobe Systems portable document format (PDF). The resulting documents shall be viewable with Adobe Reader version 5.0 or higher. The PDF documents shall be produced using the postscript printer driver engine within Adobe Acrobat 5.0 or later. Documents shall not be scanned unless no electronic form of the document exists. In such cases and with approval of District, the document shall be scanned in color, at 100 percent image scaling and a resolution of 300 dpi. All PDF files shall be text captured, image with hidden text, optimized, searchable and indexable. 11. Acceptance District shall not be deemed to have accepted the Goods and Services until after Seller has performed all of Seller s obligations, as defined herein. 12. Risk of Loss Seller shall bear the risk of loss to the Goods until Seller has completed delivery. 13. Warranty Against Defects Seller warrants that the Goods and Services shall remain free of defects in material and workmanship for a period of three years commencing on the date of District s acceptance. Such defects shall include any failure of the Goods or Services to meet Seller s specifications or the description contained in Seller s product literature. If within the warranty period District discovers such a defect, Seller shall repair or replace the defective item or component free of charge. If after three attempts Seller is unable to eliminate a defect, or if Seller does not commence the warranty work within the time allowed in this paragraph, District shall have the right to return the defective item or component and, at District s option, either obtain a full refund of the purchase price of the Goods or Services or obtain a refund, in an amount to be agreed upon by the parties, of the portion of the purchase price of the Goods or Services that is allocable to the defective item or component. Seller shall commence all warranty work within 48 hours of receiving notice of the warranty claim. All warranty work shall be performed at District s facilities unless otherwise agreed by the parties. If warranty work is performed at Seller s facilities, Seller shall pay all shipping costs, including the cost of return shipment. This warranty shall apply to all repair parts furnished by Seller and all repairs performed by Seller. Seller shall pay for all labor costs to remove the Goods and to reinstall them. Page 3 Contract for Prepurchase of Equipment for Medium Voltage Main Switchgear Replacement

4 14. Patent Infringement Warranty Seller warrants that none of the Goods, the use thereof or any of the applications, processes or designs employed in the manufacture thereof infringes the valid claims of any letter patent, patent application, copyright, trade secret or any other property right of any third party. If as a result of any suit or proceeding alleging an infringement of any of the foregoing property rights District s use of the equipment is enjoined, Seller shall at no cost to District either obtain for District a license to use the Goods or modify the Goods so as to avoid the infringement without any degradation in performance. If Seller cannot obtain such a license and cannot so modify the equipment, Seller shall promptly refund to District the purchase price, less a reasonable amount for depreciation. 15. Maintenance Services Not applicable. 16. Assignment of Manufacturer s Warranties Seller hereby assigns all warranties of the manufacturers of components of the Goods to District to the extent such warranties are assignable. In the event Seller must obtain the consent of the manufacturer or take other action before any such warranties are assignable, Seller shall do so prior to delivery. 17. Spare Parts Seller shall deliver a spare parts list to District with the operations and maintenance manuals. The list shall contain all parts necessary to maintain the goods. 18. Most Favored Customer Not applicable. 19. Indemnity/Hold Harmless To the fullest extent permitted by law, Seller shall indemnify, hold harmless, reimburse and defend District, District s officers, employees, agents and representatives from and against all claims, demands, penalties, and causes of action of any kind or character, including the cost of defense thereof, including attorney fees at trial and on appeal, arising out of, or resulting from Seller s performance of this Contract, but only to the extent caused by the breach of this Contract or the negligent acts or omissions of Seller, any lower-tier seller, or any individual or entity directly or indirectly employed by any of them to perform under this Contract, or anyone for whose acts any of them may be liable. Except for Seller s obligation to indemnify District for personal injury, death, property damage or infringement, Seller s total liability to District for any and all liabilities, claims or damages arising out of or relating to this Contract, howsoever caused and regardless of the legal theory asserted, including breach of contract or warranty, tort, strict liability, statutory liability or otherwise, shall not, in the aggregate, exceed the total purchase price of this Contract. In no event shall either Seller or District be liable to the other for any punitive, exemplary, special, indirect, incidental or consequential damages (including, but not limited to, lost profits, lost business opportunities, loss of use or equipment down time, Page 4 Contract for Prepurchase of Equipment for Medium Voltage Main Switchgear Replacement

5 and loss of or corruption to data) (collectively, Consequential Damages) arising out of or relating to this Contract. This limitation on Consequential Damages does not apply to third party claims for Consequential Damages and does not limit the Seller s indemnification obligations under this section for third party claims. 20. Patent Indemnity Seller shall defend, indemnify and hold harmless District, District s officers, employees, agents and representatives, from and against all legal expenses which may be incurred as well as all damages, losses and costs which may be assessed against or borne by District by reason of any or all actions or proceedings charging infringement of the property rights of others, including patent, trade secret or trademark rights or copyright, by reason of District s use of the Goods sold under this Contract. 21. Bid Research/Inspection Seller represents that Seller has visited District s work site or has knowledge of the circumstances and conditions of the use of the product sold under this Contract, and further represents that Seller has correlated the observations or knowledge with the requirements of the contract documents. Failure to make such observations or to possess such knowledge shall not release Seller from any obligations herein. 22. Vehicle Insurance If Seller will be delivering the Goods, Seller shall provide District a certificate indicating that Seller has business automobile liability insurance in the minimum amount of $500,000 per occurrence and $1,000,000 general annual aggregate. The insurance shall name District as an additional insured and shall require written notice to District 30 days in advance of cancellation and cover damages to the goods during shipping. If Seller hires a carrier to make delivery, Seller shall ensure that the carrier complies with this paragraph. 23. Pollution Insurance If Seller will be delivering hazardous material to District, Seller shall provide District a certificate indicating that Seller has pollution insurance in the amount required by Oregon and Federal law for the transportation of hazardous materials. The insurance shall name District as an additional insured and shall require written notice to District 30 days prior to cancellation. If Seller hires a carrier to make delivery, Seller shall ensure that the carrier complies with this paragraph. 24. Commercial General Liability Insurance If Seller will be installing or testing the Goods, or otherwise performing services on District s premises, Seller shall provide a certificate indicating that Seller has commercial general liability insurance in the amount of $500,000 per occurrence and $1,000,000 general annual aggregate. The insurance shall name District as an additional insured and shall require written notice to District 30 days prior to cancellation. If Seller hires a subseller to perform services on District s premises, Seller shall ensure that Seller s subseller complies with this paragraph. Page 5 Contract for Prepurchase of Equipment for Medium Voltage Main Switchgear Replacement

6 25. Termination A. District may terminate this Contract without cause at any time prior to the completion of delivery. In the event of such termination, District s liability to Seller shall be limited to the reasonable value of work performed by Seller and the reimbursement of reasonable expenses incurred by Seller prior to the time Seller received District s notice of termination. In no event shall District s liability exceed the purchase price of the Goods and Services. In the event of such termination, District shall be entitled to all materials, work in progress and completed work included in computing the value of work performed and reasonable expenses. B. District may terminate this Contract at any time prior to District s acceptance if Seller has breached this Contract and has not cured the breach within five days after receiving District s written notice of breach. 26. Compliance with Applicable Laws Seller shall keep itself fully informed of and comply with all federal, state and local laws, regulations and ordinances applicable to this Contract, as those laws, regulations and ordinances may be adopted or amended from time to time. These laws, regulations and ordinances including, without limitation, the provisions of ORS 279B.220, 279B.225, 279B.230, 279B.235, and 279B.270, are incorporated by reference herein to the extent that they are applicable to the Contract and required by law to be incorporated. All permits, licenses, and fees necessary to prosecute and complete the work shall be secured and paid for by Seller unless otherwise specified by District. 27. Tax Law Compliance Seller shall pay all taxes, including federal, state, regional, county, and city taxes, and taxes of any other governmental entity, applicable to the services performed or materials provided under this Contract. Seller represents, warrants and covenants that Seller has complied with, and agrees that during the term of this Contract shall comply with Oregon Tax Laws and applicable tax laws of political subdivisions of this State including, but not limited to, ORS and ORS chapters 316, 317 and 318. Seller s failure to comply with Oregon Tax Laws or the applicable tax laws of political subdivisions of this State for the six years prior to the date Seller executes this Contract or the period of time Seller has been in business, whichever is less, or during the term of the Contract is a default for which District may terminate the Contract and seek damages and other relief available under the terms of the Contract or under applicable law. 28. No Contingent Fees Seller warrants that Seller has not employed or retained any company or person, other than a bona fide employee working solely for Seller, to solicit or secure this Contract, and that Seller has not paid or agreed to pay any company or person, other than a bona fide employee working solely for Seller any fee or consideration of any kind, contingent upon Page 6 Contract for Prepurchase of Equipment for Medium Voltage Main Switchgear Replacement

7 or resulting from the award or making of this Contract. In the event Seller breaches the warranty contained in this paragraph, District shall have the right to deduct from the Contract price or otherwise recover the full amount of such fee or consideration. 29. Amendments/Waivers No waiver of any portion of this Contract and no amendment, modification or alteration of this Contract shall be effective unless in writing and signed by Seller s authorized representative and District s General Manager or the General Manager s designee and, when required by applicable District rules, approved by District s Board of Directors. 30. Third Party Beneficiaries No provision of this Contract shall in any way inure to the benefit of any third person so as to constitute any such person a third party beneficiary of this Contract or of any one or more of the terms of this Contract, or otherwise give rise to any cause of action in any person not a party to this Contract. 31. Attorney Fees If any dispute arises concerning the interpretation or enforcement of this Contract or any issues related to the U.S. Bankruptcy Code (whether or not such issues relate to the terms of this Contract), the prevailing party in any such dispute shall be entitled to recover all of its attorney fees, paralegal fees, costs, disbursements and other expenses from the nonprevailing party, including without limitation those arising before and at any trial, arbitration, bankruptcy, or other proceeding and in any appeal. 32. Interpretation of Contract A. This Contract shall not be construed for or against any party by reason of the authorship or alleged authorship of any provision. B. In case of a conflict between the provisions contained in Exhibit A and this document, the provisions contained in Exhibit A shall have precedence. C. The paragraph headings contained in this Contract are for ease of reference only and shall not be used in constructing or interpreting this Contract. 33. Severability/Survival If any of the provisions contained in this Contract are held illegal, invalid or unenforceable, the enforceability of the remaining provisions shall not be impaired. All provisions concerning the limitation of liability, indemnity and conflicts of interest shall survive the termination of this Contract for any cause. 34. Choice of Law/Venue This Contract and all rights, obligations and disputes arising out of the Contract shall be governed by Oregon law, including the Uniform Commercial Code as adopted by the State of Oregon. All disputes and litigation arising out of this Contract shall be decided Page 7 Contract for Prepurchase of Equipment for Medium Voltage Main Switchgear Replacement

8 by the state courts in Oregon. Venue for all disputes and litigation shall be in Washington County, Oregon. 35. Integration This Contract constitutes the entire Contract between the parties on the subject matter hereof and supersedes all prior or contemporaneous written or oral understandings, representations or communications of every kind on the subject. No course of dealing between the parties and no usage of trade shall be relevant to supplement any term used in this Contract. Acceptance or acquiescence in a course of performance rendered under this Contract shall not be relevant to determine the meaning of this Contract and no waiver by a party of any right under this Contract shall prejudice the waiving party s exercise of the right in the future. CRESCENT ELECTRIC SUPPLY COMPANY CLEAN WATER SERVICES By: Title: By: General Manager or Designee APPROVED AS TO FORM District Counsel Page 8 Contract for Prepurchase of Equipment for Medium Voltage Main Switchgear Replacement

9 EXHIBIT A SCOPE OF WORK, SPECIFICATIONS AND SPECIAL TERMS AND CONDITIONS I. SCOPE OF WORK Seller shall furnish the following Goods and Services: Furnish one lineup of medium voltage metal-clad vacuum circuit breaker type switchgear in a pre-fabricated walk-in electrical enclosure, along with AC service equipment, DC station service equipment, metering, relaying, lighting, HVAC, and other pertinent accessories, and perform related services consisting of a short circuit study, a protective device coordination study, field inspections, start-up services after installation and training of District personnel. District will enter into a separate contract with a contractor to install the Goods (Installing Contractor). Seller shall be responsible for coordinating with the Installation Contractor during installation, start-up, commissioning and training to ensure the Services are completed by the Required Performance Date in Paragraph 3. Seller shall obtain any permits and schedule any inspections that are required. II. DRAWINGS The Goods and Services shall conform to the following drawings: E-101 General Legend E-102 Abbreviations E-103 Circuit Conductor Identification E-104 Schedules 100-E-002 PPS-1A One Line Diagram 100-E-003 PPS-1B One Line Diagram 100-E-004 PPS-1 Elevation 100-E-007 Panelboard Schedules 100-E-008 PPS-1 Breaker Control Panel Enclosure 100-E-105 PPS-1 Electrical Enclosure Plan III. SPECIFICATIONS The Goods and Services shall conform to the following specifications: DIVISION 1 GENERAL Summary of Work Submittal Procedures Regulatory Requirements Abbreviations Quality Control Product Requirements Page 9 Contract for Prepurchase of Equipment for Medium Voltage Main Switchgear Replacement

10 01610 Product Design Criteria Seismic Anchorage and Bracing Wind Design Criteria Testing and Facility Startup 01756_SUP Supplement: Equipment Supplier s Certificate of Installation Closeout Procedures Operation and Maintenance Data DIVISION 16 ELECTRICAL Common Work Results for Electrical Electrical Identification 16075_SUP Supplement: Sample Nameplate Schedule Volt or less Wires and Cables Conduits Boxes Wiring Devices Low Voltage Wire Connections Utility Coordination Battery Systems Surge Protective Devices Protective Relays Electrical System Studies Kilovolt Medium-Voltage Metal Clad Switchgear Disconnect Switches Low Voltage Molded Case Circuit Breakers Panelboards Transfer Switches Low Voltage Fuses Lighting Pre-Fabricated Walk-in Electrical Enclosures Field Electrical Acceptance Tests IV. SELLER S SERVICES Seller shall perform the following tasks: A. Short Circuit and Protective Device Coordination Studies B. Field inspection of Goods after installation by District s Installation Contractor upon seven days written notice to proceed. Provide certification that equipment is properly installed and ready for start-up. C. Assist District s Installation Contractor in start-up of Goods, including testing and setting of protective devices according to requirements of the Short Circuit and Protective Device Coordination Studies upon seven days written notice to proceed. D. Functional testing of all systems after energization. Provide certification that systems perform according to the design intent and Contract Documents. Page 10 Contract for Prepurchase of Equipment for Medium Voltage Main Switchgear Replacement

11 E. Provide four hours of on-site training in the Operation and Maintenance of Goods to District s Personnel upon seven days written notice to proceed. F. Visit the site to coordinate the location and size of the switchgear's concrete slab openings with the Installation Contractor and the utility (PGE) and provide final approval of the location and size of the openings in the switchgear's concrete slab before the Installation Contractor completes the conduit installation under the slab and pours the slab. V. OTHER TERMS AND CONDITIONS A. Seller shall conduct all on-site Work during regular working hours, which are defined as weekdays, 7:00 a.m. to 5:00 p.m., holidays excluded. B. Seller shall implement and comply with all required OSHA safety standards throughout the project and lock out and tag all equipment being worked on. C. Continuous operation of District facilities is of critical importance. Seller shall schedule and conduct activities to enable existing facilities to operate continuously, unless otherwise specified. D. Seller shall coordinate access to site with District s Installation Contractor and District. Page 11 Contract for Prepurchase of Equipment for Medium Voltage Main Switchgear Replacement