City Auditor - City Recorder - Council Ordinance - 179889 Platt Electric Supply annual price contract

PRICE AGREEMENT NO.________________

Resulting from Invitation to Bid #103764

TO FURNISH

Maintenance, Repair and Operations, and Electrical Supplies

This Contract, made and entered into this _________ day of ______________________, 2005, by and between Platt Electric Supply, Inc., an Oregon corporation, hereinafter called Contractor, and the City of Portland, a municipal corporation of the State of Oregon, by and through its duly authorized representatives, hereinafter called City,

W I T N E S S E T H:

The parties hereto mutually covenant and agree to and with each other as follows:

ARTICLE I. For and in consideration of the unit prices set forth herein below, to be paid by City, Contractor hereby agrees as follows:

A. To bargain, sell, furnish and deliver all supplies, equipment and/or services described herein.

B. That all products and services shall be in accordance with:

1. The scope of work as required in the solicitation documents including Appendix A, and revised bid form, attached hereto as Exhibits A, and A-1.

2. The Contractor's ITB response dated February 24, 2005.

Said documents on file in the Office of the City Auditor and by reference made a part of this contract.

C. To save City free from all loss or damage that may result from the wrongful or unauthorized use of any patented article or process hereunder.

D. To warranty the materials and services furnished hereunder in accordance with the warranty provisions of this Contract.

ARTICLE II. The following terms and conditions shall comprise the agreement between the parties to the contract:

CONTRACT TERM: The term of this Agreement shall begin on the date of the last signature to this contract, but not before 30-days following approval of an Ordinance to contract by the Portland City Council, and shall expire on June 30, 2008 unless terminated sooner as provided herein. The parties may agree to extend this Agreement for up to two (2) additional one-year terms, taken individually or in multiple year extensions. Contractor agrees to give to the City written notice at least ninety (90) days prior to the contract expiration date of desire to extend the term of this contract. However, nothing binds or requires either party to extend this Agreement. The total term of this Agreement shall not exceed five (5) years.

CONTRACTOR’S AGREEMENT TO PROVIDE SERVICES: The Contractor agrees to sell to City on a requirements basis the services described in Exhibit A (Solicitation documents) and Exhibit A-1 (Bid Form) in accordance with the terms and conditions of this Price Agreement. Requested supplies will be delivered with next business day service following the request for supplies.

CITY’S AGREEMENT TO PAY FOR SERVICES: Contractor shall provide invoices for services to the City Bureau or other agency that requested the services. Invoices shall be provided in paper form. Contractor is at all times solely responsible for billing accuracy and timeliness. The City may consider electronic billing methods but reserves the right in its sole discretion to determine acceptable billing format and media.

Invoices submitted for payment shall identify the services, the unit price, quantity, extended price, order number and invoice total. Additional billing details may be agreed upon between the parties. Invoicing for services shall at all times be in arrears. Invoices for payment shall be provided to the city within ninety (90) days of successful delivery of the billed services. No interest charges or late payment charges shall accrue for disputed charges. Revised invoices or billing adjustments shall apply only to services that can be verified by the City. Requests for such adjustments shall be submitted in writing to the City within six (6) months of acceptance of the services, shall reference the original invoice in which the error was made, and contain the level of detail defined in Billing Detail above. Billing Adjustments shall not be submitted to the City in any form other than a paper document. Failure by the City to pay any portion of or the entire invoiced amount based on Contractor billing errors, Services that fail to comply with this Contract, or disputed charges shall not constitute default under this Contract. The City shall pay undisputed portions of disputed or incorrect invoices where the City can easily identify the undisputed portion. Payment of an amount less than the total amount due on all unpaid invoices shall be any particular amount or item, which is subject to any claim of error or dispute between the parties, without prior written City approval.

STANDARD TERMS AND CONDITIONS

TIME IS OF THE ESSENCE: Time is the essence in this Contract. Contractor shall make every reasonable effort to meet established delivery dates and other deadlines. Circumstances that may delay the delivery of goods and services from established delivery dates and other deadlines, including Excusable Delays and Force Majeure events, shall be reported to the city immediately upon discovery. The City and Contract or shall mutually agree in writing upon any schedule or pricing change due to Excusable Delays or Force Majeure events. In the event Contractor does not meet the established delivery dates or other deadlines and Contractor has failed to cure such breach within fifteen (15) days of written notice by the city, the city may cancel the Order and obtain the non-performed service from another source, and no recurring charges, one-time charges, or termination charges or other penalties shall be due the Contractor. In addition, the city will be entitled to reasonable compensation as stated under Remedies.

BUSINESS COMPLIANCE: The Contractor must be in compliance with the laws regarding conducting business in the City of Portland. The Contractor is responsible for meeting the requirements of Oregon Revised Statues (ORS), and other laws and ordinances including registration for the City as an Equal Employment Opportunity (EEO) Affirmative Action employer, compliance with the Americans with Disabilities Act and City of Portland Business License requirements.

ASSIGNMENT AND SUBCONTRACTING: This Contract or any interest therein shall not be assigned or subcontracted to any other party/parties without the prior written consent of the other party. In the event of transfer without prior written consent, the other party may refuse to carry out this Contract with either the transferor or the transferee and yet retain and reserve all rights of action for any breach of contract committed by other party. The Contractor shall not subcontract its work under this Contract, in whole or in part, without the prior written approval of the City. The Contractor shall require any approved subcontractor to agree, as to the portion subcontracted, to fulfill all obligations of the Contractor as specified in this Contract. Notwithstanding City approval of a subcontractor, the Contractor shall remain obligated for full performance hereunder, and the City shall incur no obligation other than its obligations to the Contractor hereunder. The Contractor agrees that if subcontractors are employed in the performance of this Contract, the Contractor and its subcontractors are subject to the requirements and sanctions of ORS Chapter 656, Workers’ Compensation.

AMENDMENTS: The City’s Purchasing Agent is authorized to execute most Amendments to this contract that concern increased prices for goods and services, without further approval, provided such amendments are in writing. Any other amendments shall be in writing, signed by both parties, and approved by the City Attorney's office. Contractor understands that City employees have no actual or apparent authority to enter into amendments, except as may be specifically granted by the City Council to the Purchasing Agent, or to waive the approval of the City Attorney's office.

FORCE MAJEURE: Neither City nor Contractor shall be held responsible for performance if its performance is prevented by unforeseeable acts or events beyond the party's reasonable control including, but not limited to: acts of God; fire, flood, earthquakes or other catastrophes; strikes or other labor unrest; power failures; nuclear or other civil or military emergencies; or acts of legislative, judicial, executive, or administrative authorities; or any other circumstances which are not within its reasonable control.

NO THIRD PARTY BENEFICIARIES: City and Contractor are the only parties to this Contract and are the only parties entitled to enforce its terms. Nothing in this Contract gives, assigns or provides any benefit or right, whether directly, indirectly, or otherwise, to third persons unless such third persons are individually identified by name in this Contract and expressly described as intended beneficiaries of this Contract.

SUCCESSORS IN INTEREST: The provisions of this Contract shall be binding upon and shall inure to the benefit of the parties hereto, and their respective successors and approved assigns.

EARLY TERMINATION OF CONTRACT: The City, on thirty (30) days written notice to the Contractor, may terminate this Agreement for any reason deemed appropriate in its sole discretion. Either the City or the Contractor may terminate this Agreement in the event of a breach of the Contract by the other. Prior to such termination, however, the party seeking the termination shall give to the other party written notice of the breach and of the party's intent to terminate. If the party has not entirely cured the breach within thirty (30) days of the notice, then the party giving the notice may terminate the Contract at any time thereafter by giving a written notice of termination.

SUSPENSION OF THE WORK: The City may at any time give notice in writing, by electronic mail, or by facsimile to the Contractor to suspend this contract. The notice of suspension shall specify the date of suspension and the estimated duration of the suspension. In no event shall the Contractor be entitled to any lost or prospective profits or any incidental or consequential damages because of suspension. The causes for suspension of work include, but are not be limited to, any of the following Contractor actions: failure to meet City standards, undue disruption of City staff, or any other non-compliance with the Contract.

PAYMENT ON EARLY TERMINATION: In the event of termination under Early Termination of Contract hereof, the City shall pay the Contractor for services in accordance with the Contract prior to the termination date and delivered to City provided that such services conform to contract specifications. In the event of termination under Early Termination of Contract hereof, by he City due to a breach by the Contractor, then the City shall pay the Contractor for services performed in accordance with the Contract prior to the termination date subject to set off of excess costs, as provided for in Remedies. In the event of early termination all of the Contractor's Work product shall become and remain property of the City. Under no circumstances shall the City be subject to early termination penalties for recurring charges for Goods or services that the City cancels during the term of this Contract.

REMEDIES: In the event of termination under Early Termination of Contract, hereof, by the City due to a breach by the Contractor, then the City may purchase Services outstanding from another contractor. In the event the cost exceeds Contractor’s price for the same Services, then the Contractor shall pay to the City the amount of reasonable excess. The City also shall be entitled to any other equitable and legal remedies that are available. Except as expressly contained in this Contract, the remedies for a breach of this Contract shall not be exclusive, or construed as a limitation on any other equitable and legal remedies that are available, including without limitation rights or remedies that are or may become available under ORS 72.7010 to 72.7250.

ACCESS TO RECORDS: The Contractor shall maintain professional accounting standards and on a current basis, and the City and its duly authorized representatives shall have access to, the books, documents, papers, and records of the Contractor which are directly pertinent to this Contract for the purpose of making audit, examination, excerpts, and transcripts for a period of three (3) years after final payment. Copies of applicable records shall be made available upon request

AUDITS: The City, either directly or through a designated representative, may conduct financial and performance audits of the billings and services specified in this Contract at any time in the course of the Contract and during the three (3) year period established by Access to Records. Audits shall be conducted in accordance with generally accepted auditing standards. If an audit discloses that payments to the Contractor were in excess of the amount to which the Contractor was entitled, then the Contractor shall repay the amount of the excess to the City. Under no circumstances will the payment of previous invoices constitute an acceptance of the charges associated with those invoices. If any audit shows performance of services is not efficient in accordance with Government Auditing Standards, or that the program is not effective in accordance with Government Auditing Standards, the City may pursue remedies as provided under Early Termination of Agreement and Remedies.

COMPLIANCE WITH APPLICABLE LAW: In connection with its activities under this Contract, Contractor shall comply with all applicable federal, state and local laws and regulations. All statutory, charter and ordinance provisions applicable to public contracts in the City of Portland and the State of Oregon shall be followed with respect to this contract. Solicitation Appendix A lists some laws but is not exclusive.

INDEMNITY: Contractor shall hold harmless, defend, and indemnify the City of Portland, its officers, employees, and agents, from all claims, demands, suits, actions, losses, damages, liabilities, costs and expenses of whatsoever nature, including all attorney’s fees and costs, resulting from or arising out of the activities of Contractor or its officers, employees, subcontractors, or agents including intentional acts, or of its subcontractors, agents or employees under this Contract.

INSURANCE: Work shall not commence until all insurance requirements have been met and certificates thereof have been filed with the Purchasing Agent or the Auditor.

Public Liability and Property Damage:

The contractor shall provide and maintain public liability and property damage insurance that protects the contractor and the City and its officers, agents and employees from any and all claims, demands, actions and suits for damage to property or personal injury, including death, arising from the contractor’s work under this contract. The insurance shall provide coverage for not less than:

For Personal Injury $ 200,000 for each person

$ 500,000 for each occurrence

For Property Damage $ 500,000 for each occurrence

Or, a single limit public liability policy of not less than $ 500,000 covering all claims per occurrence. The limits of insurance shall be subject to statutory changes as to maximum limits of liability imposed on municipalities of the State of Oregon during the term of the contract.

The insurance shall be without prejudice to coverage otherwise existing, and shall name as additional insureds the City and its officers, agents and employees. Notwithstanding the naming of additional insureds, the insurance shall protect each insured in the same manner as though a separate policy had been issued to each, but nothing herein shall operate to increase the insurer's liability as set forth elsewhere in the policy beyond the amount or amounts for which the insurer would have been liable if only one person or interest had been named as insured.

The coverage shall apply as to claims between insureds on the policy. The insurance shall provide that the insurance shall not terminate or be canceled without thirty (30) days written notice first being given to the City Auditor. If the insurance is canceled or terminated prior to completion of the contract, the contractor shall provide a new policy with the same terms. The contractor agrees to maintain continuous, uninterrupted coverage for the duration of the contract. The insurance shall include coverage for any damages or injuries arising out of the use of automobiles or other motor vehicles by the contractor.

The contractor shall maintain on file with the City Auditor a certificate of insurance certifying the coverage required. The adequacy of the insurance shall be subject to the approval of the City Attorney. Failure to maintain liability insurance shall be cause for immediate termination of this contract by the City.

Workers’ Compensation Insurance: Prior to the performance of any work under a contract awarded by the City, the Contractor shall comply with the workers’ compensation law, ORS Chapter 656, as it may be amended, and if workers’ compensation insurance is required by ORS Chapter 656, the Contractor shall maintain coverage for all subject workers as defined by ORS Chapter 656 and shall maintain a current, valid certificate of workers’ compensation insurance on file with the City Auditor for the entire period during which work is performed under the contract.

NON-WAIVER: No waiver, consent, modification, or change of terms of this Contract shall bind either party unless in writing and signed by both parties. Such waiver, consent, modification, or change if made, shall be effective only in specific instances and for the specific purposes given. The failure of the either party to enforce any provision of this Contract shall not constitute a waiver of that or any other provision.

GOVERNING LAW / VENUE: The provisions of this Contract shall be construed in accordance with the provisions of the laws of the State of Oregon. Any action or suits involving any question arising under this Contract shall be brought in the appropriate court in Multnomah County, Oregon.

SEVERABILITY: In the event that a court, government agency, or regulatory agency with proper jurisdiction determines that this Contract, or any provision of this Contract, is unlawful, this Contract, or that provision of the Contract to the extent it is unlawful, shall terminate. If a provision of this Contract is terminated but the parties can legally, commercially, and practicably continue without the terminated provision, the remainder of this Contract shall continue in effect.

ENTIRE AGREEMENT: This Contract and its Attachments represent the entire Agreement between the parties. This Contract is a final, complete exclusive statement of the terms thereof, and supersedes and terminates any prior Contract, understanding, or representation between the parties with respect thereto, whether written or oral.

NONDISCRIMINATION: Contractor agrees to comply with all applicable requirements of federal and state civil rights and rehabilitation statutes, rules, and regulations. Contractor also shall comply with the Americans With Disabilities Act of 1990 (Pub I. No. 101-336) including Title II of that Act, ORS 659.425, and all regulations and administrative rules established pursuant to those laws.

LIENS: Contractor shall not permit any claim to be filed or prosecuted against the County or any lien against the property purchased in connection with this contract and agrees to assume responsibility should such lien or claim be filed.

WARRANTY: The Contractor shall warranty all products and services to be free from defects in materials and workmanship, given normal use and care, for one (1) year. Contractor shall make all necessary repairs and replacements to remedy any and all defects or failures in its work within one-year period without cost to the City.

City and Contractor acknowledge that in an era of rapidly changing technology, Contractor may enhance the services furnished by the Contractor under this Contract due to technological improvements, new features and functionality, or in other ways that change their makeup to the extent that they are considered new services. These new services may be added to the Contract providing they are within the scope of the original Contract. Addition of these services to the Contract shall follow the same process as outlined in prices and price changes herein.

ENVIRONMENTALLY PREFERABLE PROCUREMENT: In accordance with the City's Sustainable City Principles and the City's Sustainable Procurement Strategy, it is the policy of the City of Portland to encourage the use of products or services that help to minimize the human health and environmental impacts of City operations. "Environmentally Preferable" means products or services that have a lesser or reduced effect on human health and the environment when compared with competing products or services that serve the same purpose. This comparison may consider raw materials acquisition, production, manufacturing, packaging, distribution, reuse, operation, maintenance, or disposal of the product or service. Environmentally preferable office products and printer cartridges include, but are not limited to, products that are: made from post-consumer recycled content materials, nontoxic, reusable/refillable, low-VOC, made from rapidly renewable materials (i.e. bio-based), upgradeable, energy efficient, readily recyclable, or biodegradable.

NOTICE: Except as otherwise stated in this Contract, any notice or demand to be given under this Contract shall be delivered in person or deposited in United States Certified Mail, Return Receipt Requested. Any notices or other communications shall be addressed as follows:

CONTRACTOR: CITY:

Platt Electric Supply, Inc. City of Portland

Bureau of Purchases

PO Box 3167 1120 SW 5^th Avenue, Room 750

Portland, OR 97208 Portland, OR 97204

Attn: Jerry Weber, Marty Gault, C.P.M.

Executive Vice President Program Coordinator, Strategic Sourcing

If either party changes its address or if a party's representative changes, the other party shall be advised of such a change in writing, in accordance with this section.

SPECIAL TERMS AND CONDITIONS

MINORITY OWNED/WOMEN OWNED/EMERGING SMALL BUSINESS REPORTING: Contractor shall report to the City’s Program Coordinator, Strategic Sourcing the name, classification of the supplier (i.e. Minority Owned Business, Woman Owned Business, Emerging Small Business and products or services rendered to contractor by this supplier on a calendar quarterly basis. A qualified M/W/ESB organization is one that has applied for one or more of these certifications, on forms required by the State of Oregon, Department of Consumer and Business Affairs, Office of Minority, Women, and Emerging Small Business (OMWESB), and received confirmation from this agency of approval of their requested certification. These certifications have a limited approval and certifications must be current to qualify for listing for any City of Portland projects.

PRICING: Initial Contract Prices shall be as established in Exhibit A-1. Prices offered by Contractor shall remain firm for the first year of the contract term. Prices for identified services and materials in Exhibits A and A-1are as listed on ITB response submission and as listed in Exhibit A-1. Prices include all transportation service costs and all disposal service costs including all applicable fees and taxes and all landfill tipping fees or any other fee or tax reasonably associated with the provision of these services.

PRICE CHANGES: Price adjustments may be proposed in writing not less than thirty (30) days prior to the anniversary date of the contract. Any proposed price increases must be fully documented and justified by the Contractor (i.e. proof of increased labor and/or benefits costs; proof of increases by governing agencies in fees and/or taxes; etc.) Acceptance of the Contractor’s proposed price revisions shall be approved at the City’s sole discretion. The City reserves the right to reject any modifications of the Contract unacceptable to the City. Prices must be held firm for the first twelve (12) months of the Contract.

ORDERING: The City may order services by issuing an Order. The Contractor shall provide the services at Contract Prices. Delivery, Operational, or Service dates shall be established either as specified in the Contract or by mutual agreement. Unique circumstances may result in special situation pricing for an individual order for services. In such cases, the Contractor shall notify the City’s Project Manager of the reason the Order is unique and its proposed pricing in a timely manner. The City shall then either accept the special situation pricing or cancel its order without prejudice or cost. The Contractor shall not provide the services, nor bill for them, without an Order as defined herein from the City. Orders submitted by facsimile or other electronic means, including electronic mail, shall be valid as if they were submitted in writing. If requested by the Contractor, original copies of Orders submitted by electronic means shall be provided by the City however order fulfillment and schedule shall not be conditioned on receipt of the original copy of the Order.

SCOPE OF WORK: This Contract results from Invitation to Bid #103764 for Maintenance, Repair, and Operations, and Electrical Supplies. This Contract authorizes the Contractor to provide and the City to purchase services, and establishes the terms and conditions for the City to obtain services from the Contractor. Services to be provided under this Contract are described in the Exhibits hereto. The Contractor shall provide to the City those services described in the Exhibits in accordance with the prices shown herein. This Contract does not establish an exclusive arrangement between the City and Contractor, and the City retains the right to purchase the same or similar services from other providers.

ARTICLE III. In consideration of the premises, City hereby agrees to pay Contractor the unit prices stated herein for the services furnished hereunder during the month following delivery, inspection, testing and acceptance by a duly authorized representative of the City and billing in triplicate by the Contractor.

ARTICLE IV. It is understood and agreed by the parties hereto that:

A. Any reference in this contract to the scope of work or specifications is intended as a convenience to the parties in administration of the contract. Therefore, in the absence of an express statement to the contrary herein, any restatement or partial restatement in this contract of any provision of the scope of work or specifications is not intended, nor shall be construed to change, alter, modify, amend, or delete the requirements of the scope of work or specifications.

B. All statutory, charter and ordinance provisions applicable to public contracts in the City of Portland and State of Oregon shall be followed with respect to this contract.

C. The Contractor, its subcontractor, if any, and all employees working under this Agreement/Contract are subject employers under the Oregon Workers' Compensation Law and shall comply with ORS 656.017, which requires them to provide workers' compensation coverage for all their subject workers.

IN WITNESS WHEREOF, Contractor and City have caused this contract to be executed in triplicate by their duly authorized representative(s), all on the day and year first above written.

(Affix Corporate Seal) PLATT ELECTRIC SUPPLY, INC.

BY____________________________________________

Date

(Name and Title)

Platt Electric Supply, Inc.

Approved as to Form: Address: 3053 NW 29^th Avenue

Portland, OR 97210

______________________________ Telephone No: (503) 224-1919

City Attorney Fax No: (503) 248-0334

CITY OF PORTLAND

BUSINESS LICENSE NO. CITY OF PORTLAND

_160808_______________________ BY_______________________________________

Mayor, City of Portland Date

BY_______________________________________

Auditor, City of Portland Date

CENTER CODE: _______ INITIALS: mlg DATE TYPED: 12/12/2005

FUNDING: Various