1. ITB #00002446 Supply of Wood Poles - ITB Body.pdf

City Project 132042 Page 1 of 21 ITB for Supply of Wood Utility Poles ITB No. 00002446

Date: October 11, 2024

City of Portland, Oregon

Invitation to BID for Supply of Wood Utility Poles

PROPOSALS DUE:

November 1, 2024 By 4:00 P.M. PST

SUBMITTAL INSTRUCTIONS:

Submit proposals electronically by uploading the required proposal documents below to the City’s Procurement Services vendor portal, BuySpeed found at: https://procure.portlandoregon.gov.

REFER ALL QUESTIONS TO:

Paris Hall, Procurement Specialist Bureau of Revenue and Financial Services, Procurement Services Phone: (503) 823-6220 Email : paris.hall@portlandoregon.gov

City Project 132042 Page 2 of 21 ITB for Supply of Wood Utility Poles

SECTION 1 INTRODUCTION

1.1 Background

The Portland Bureau of Transportation (“PBOT” or “City”) requires periodic supply of wood utility poles over a 5-year term of price agreement with estimated annual spend between $50,000 to $200,000.

1.2 Scope of work

See Exhibit A – Scope of Work, which will become Exhibit A – Statement of Work to any price agreement(s) resulting from this ITB.

1.3 Technical Requirements

See Exhibit B – Material Specifications which will become Exhibit B – Material Specifications to any price agreement(s) resulting from this ITB.

1.4 Pricing

See Exhibit C – Pricing Schedule as bid form, which will become Exhibit C – Pricing Schedule to any price agreement(s) resulting from this ITB.

SECTION 2 GENERAL REQUIREMENTS AND INSTRUCTIONS TO BIDDERS

All bids are subject to the provisions and requirements of the Oregon Revised Statutes and the Portland City Code (PCC), including PCC 5.33.

2.1 Bid Preparation

2.1.1 Bid Format

Bids must be typewritten or prepared in ink and must be submitted on the form provided in the Invitation to Bid. No oral, telegraphic, telephone or facsimile bids will be accepted.

2.1.2 Conformance to Bid Requirements

Bids must conform to the requirements of the Invitation to Bid. All necessary attachments (residency statement, bid bond, references, descriptive literature, etc.) must be submitted with the bid and in the required format. Bid prices must be for the unit indicated on the bid.

Failure to comply with all requirements may result in bid rejection.

2.1.3 Conflict of Interest

By submitting a bid, a Bidder certifies that no officer, agent or employee of the City has a pecuniary interest in this Agreement has participated in preparation of the proposal or resulting Agreement, that the proposal was made in good faith without fraud, collusion, or connection of any kind with any other Offeror of the same proposals, and that the Offeror is competing solely in its own behalf without connection with, or obligation to any undisclosed person or firm.

2.1.4 Cost of Bidding

This invitation to bid does not commit the City to pay any costs incurred by any Bidder in the submission of a bid, or in making necessary studies or designs for the preparation thereof, or for procuring or Contracting for the items to be furnished under the invitation to bid.

City Project 132042 Page 3 of 21 ITB for Supply of Wood Utility Poles

2.1.5 Use of Brand or Trade Names

Any brand or trade names used by the City in bid specifications are for the purpose of describing and establishing the standard of quality, performance and characteristics desired and are not intended to limit or restrict competition. Bidders may submit bids for substantially equivalent products to those designated unless the Invitation to Bid provides that a specific brand is necessary because of compatibility requirements, etc. All such brand substitutions shall be subject to purchaser's approval.

2.1.6 Product Identification

Bidders must clearly identify all products bid. Brand name and model or number must be shown. The City reserves the right to reject any bid when the product information submitted wit the bid is incomplete.

2.1.7 Fob Destination

BID PRICES MUST BE F.O.B. DESTINATION FREIGHT PREPAID AND ALLOWED with all transportation and handling charges paid by the Bidder.

2.1.8 Exceptions

Any deviation from solicitation specifications, terms and conditions may result in bid rejection.

2.1.9 Delivery

Delivery time must be shown in number of calendar days after receipt of order.

2.1.10 Signature on Bid

Bids must be signed in ink by an authorized representative of the Bidder. Signature on a bid certifies that the bid is made without connection with any person, firm or corporation making a bid for the same goods and/or services and is in all respects fair and without collusion or fraud. Failure to sign is cause for bid rejection.

Signature on a bid also certifies that the Bidder has read and fully understands all solicitation specifications, terms and conditions. No consideration will be given to any claim resulting from bidding without comprehending all requirements of the Invitation to Bid

2.1.11 Bid Modification

Modifications or erasures made before bid submission must be initialed in ink by the person signing the bid. Bids, once submitted, may be modified in writing before the time and date set for bid closing. Any modifications shall be prepared on company letterhead, signed by an authorized representative, and state that the new document supersedes or modifies the prior bid. Modification must be submitted in a sealed envelope clearly marked "Bid Modification" and bare the same markings as the bid envelope as identified on page 1.

Bidders may not modify bids after bid closing time.

2.1.12 Bid Withdrawals

Bids may be withdrawn in writing on company letterhead signed by an authorized representative and received by the Procurement Services prior to bid closing time. Bids

City Project 132042 Page 4 of 21 ITB for Supply of Wood Utility Poles may also be withdrawn in person before bid closing time upon presentation of appropriate identification.

2.1.13 Late Bids

Sealed bids must be received and time-stamped by Procurement Services prior to bid due time on the bid due date. Late bids will not be considered for award.

2.2 City Sustainability Objectives

The City has a history of striving to be more sustainable in its operations and planning. Starting with the City’s Sustainable City Principles (1994) the City has established a variety of policies to guide its work on sustainability, including: the Sustainable Procurement Policy, Green Building Policy, Local Action Plan on Global Warming, and the Stormwater Management Manual (to view these and related City policies, go to the Portland Policy Documents Website:

http://www.portlandonline.com/auditor/index.cfm?c=26818. As applicable to City procurement, these policies guide the City to buy products and services that reduce the City’s negative environmental and social impacts. While specific goals vary, the City’s sustainability objectives tend to focus on: reducing energy use; reducing air, water, and land pollution; building and maintaining high-performance green buildings; reducing the use of materials toxic to the environment and human health; utilizing resources efficiently, including the use of renewable, reusable and recycled materials;

utilizing minority-owned, small, and/or local businesses; preserving or enhancing biodiversity; and maintaining fiscal health in the short and long term. As such, the City seeks to do business with firms that will actively contribute to the City’s sustainability objectives.

2.3 Addenda to Plans or Specifications

If, in the opinion of the Chief Procurement Officer, additional information or interpretation should be provided, an Addendum will be made available to all known specification holders. Any Addendum will be issued seventy-two (72) hours or more before the scheduled closing time for submitting bids, not including Saturday, Sunday, and legal holidays. The City shall post all Addenda on the Procurement Services website. Failure of the Bidder to exercise due diligence to receive or obtain such Addenda shall not excuse the respondent from compliance therewith if awarded the contract.

2.4 Oral Instructions

Oral instructions or information concerning the ITB documents, or the project given out by officers, employees, or agents of the City to prospective Bidders are not binding unless confirmed by Addendum.

2.5 Questions or Clarifications

It is the Bidder’s responsibility to ask questions, request changes or clarifications, or inform the City of Portland, Procurement Services if it believes the language, specifications, or requirements of this ITB are ambiguous, contradictory, or have other problems. Unless a different time is provided in the ITB, questions received less than seven (7) calendar days prior to the date bids are due may not be answered Clarifications of any provision of the solicitation document are binding only if the City amends the solicitation document by Addendum.

2.6 Protest of Solicitation Specifications

A Bidder who believes specifications are unnecessarily restrictive or limit competition may submit a protest, in writing, to the Chief Procurement Officer. To be considered, protests must be submitted

City Project 132042 Page 5 of 21 ITB for Supply of Wood Utility Poles within 7 days after a solicitation document is advertised (ten days if the bid is for a public improvement). Protests must be submitted via email to the Procurement Buyer identified on page 1.

2.7 Bid Opening

Bids will be publicly opened at the scheduled opening time stated in the Solicitation. Award decisions will not be made at the bid opening.

2.7.1 Bid Evaluation and Award

Multiple awards will be made to the lowest responsive and responsible Bidders according to the Invitation to Bid

The City may determine to award by individual line item if it’s in the best interest of the City.

2.7.2 Evaluation Criteria

Bids will be awarded based upon the evaluation criteria in the Invitation to Bid and in accordance with Section 5.33 of City Code.

Reciprocal Preference In determining the "lowest responsible Bidder”, the City will add a percent increase to each out-of-state Bidder's bid price which is equal to the percent given to local Bidders in that Bidder's home state. For example, if the "lowest responsible Bidder" is from a state that grants a 10 percent preference to local Bidders, the City will add 10 percent to that Bidder's price when evaluating the bid. Reciprocal preferences may be viewed at:

http://www.oregon.gov/DAS/EGS/ps/Pages/reciprocal.aspx.

2.7.3 Local Contracting

The City: prefers goods or services that have been manufactured or produced by a local business if price, fitness, availability and quality are otherwise equal; desires to employ local businesses in the purchase, lease, or sale of any personal property, public improvements or services; and wants the residents of the State of Oregon and SW Washington to benefit from optimizing local businesses and services, and the local employment opportunities they generate.

2.7.4 Buy Oregon Preference

The City, under ORS 279A.128 may give preference to procuring goods that are fabricated or processed, or services that are performed, entirely within this state. The City prefers Oregon Goods and Services, and for evaluation purposes, the City shall apply a five percent (5%) preference for Oregon Goods fabricated or processed entirely in Oregon or Services performed entirely in Oregon. This percentage shall be deducted from the total price submitted by the Bidder. This price reduction shall be for evaluation purposes only and shall not be reflected in the pricing incorporated into the awarded contract.

2.7.4.1 For Oregon Goods, “fabricated” means

2.7.4.1.1 Formed into a whole by uniting its parts, framed, constructed, or built (e.g., a solar panel built in Oregon and composed of parts from any origin is considered “fabricated”); or

City Project 132042 Page 6 of 21 ITB for Supply of Wood Utility Poles

2.7.4.1.2 Formed by art and labor, manufactured, or produced (e.g., computer chips manufactured in Oregon and composed of parts from any origin are considered “fabricated”).

2.7.4.2 For Oregon Goods, “processed” means

2.7.4.2.1 Performed a particular process (e.g., used cooking oil from any origin is processed in Oregon to create biofuel is considered “processed”); or

2.7.4.2.2 Treated with a substance (e.g., wood products from any origin are treated in Oregon are used for clients’ art supplies are considered “processed”).

2.7.4.3 “Entirely” means

2.7.4.3.1 To the full or entire extent, or completely, or

2.7.4.3.2 To the exclusion of others, or solely (e.g., if a Bidder constructs a good entirely by their own efforts).

To qualify for the preference: If the Bidder’s goods satisfy either of the requirements of

2.7.5.1 or 2.7.5.2, and the requirements in 2.7.5.3, then the Bidder shall qualify for this X% preference. For each requirement above (2.7.5.1 through 2.7.5.3) a Bidder satisfies the requirement if their Goods meet the definitions in either of the requirement’s subsections (e.g., a Bidder meets the requirement of 2.7.5.3, if their goods meet either the definitions of “fabricated” in 2.7.5.1 or 2.7.5.2).

2.7.4.4 Further Preference For Goods And Services From Resident Bidders:

If more than one Bidder qualifies for the preference under 2.7.5, the City may give a further preference to a qualifying Bidder that resides in or is headquartered in Oregon. The City intends to give an additional five percent (5%) preference for a qualifying Bidder that resides or is headquartered in Oregon, for a total possible preference of five percent (5%).

This percentage shall be deducted from the total price submitted by the Bidder. This price reduction shall be for evaluation purposes only and shall not be reflected in the pricing incorporated into the awarded Contract or Price Agreement.

2.7.4.4.1 A resident Bidder is defined in OAR 125-246-0110(142) as: “an Bidder that has paid unemployment taxes or income taxes in this State during the 12 calendar months immediately preceding submission of the Offer, has a business address in this State, and has stated in the Offer whether the Bidder is a ‘resident Bidder.”

2.7.4.4.2 “Headquartered” means the administrative center of an enterprise.

2.7.4.5 The Bidder shall certify in writing that the Goods and/or Services meet the Buy

Oregon Preference under section 6.5 above, using the form in Attachment 4 to this RFP.

2.7.5 Delivery

Ability to meet the City’s required delivery date shall be used to determine responsiveness.

Cash Discounts: Cash discounts will not be considered for award purposes unless stated in the bid documents.

City Project 132042 Page 7 of 21 ITB for Supply of Wood Utility Poles

2.7.6 Payment

The City’s standard payment term is Net 30 days. Bids which require payment in less than 30 days after receipt of invoice or delivery of goods, whichever is later, may be rejected.

It is the City’s policy to pay its vendor invoices via electronic funds transfers through the automated clearing house (ACH) network. To initiate payment of invoices, vendors shall execute the City’s standard ACH Vendor Payment Authorization Agreement which is available on the City’s website at:

http://www.portlandonline.com/omf/index.cfm?c=26606&a=409834

Upon verification of the data provided, the Payment Authorization Agreement will authorize the City to deposit payment for services rendered or goods provided directly into vendor accounts with financial institutions. All payments shall be in United States currency.

2.7.7 Bid Rejection

The City reserves the right to reject any and all bids.

2.7.8 Cancellation

The City reserves the right to cancel this solicitation at any time without award.

2.7.9 Bid Results

Bidders who receive awards will be notified of bid results via the Procurement Services website; unsuccessful Bidders will not be directly notified. Bid results are available by phone or email.

Protests A written protest regarding the procurement process or this solicitation document must be submitted within 7 days after a solicitation document is advertised. A written protests regarding contract award must be submitted in writing within 7 days after the award of a contract or Notice of Intent to Award, whichever occurs first. A written protest of any Addendum must be submitted by the close of the next business day after issuance of the Addendum. Late protests will not be considered. See PCC 5.33.730 and 740.

http://www.portlandonline.com/omf/index.cfm?c=26606&a=409834

City Project 132042 Page 8 of 21 ITB for Supply of Wood Utility Poles

SECTION 3 SUPPLEMENTAL REQUIREMENTS

3.1 Intergovernmental Co-Operative Purchasing

The Bidder awarded the contract agrees to extend identical prices and services under the same terms and conditions to all public agencies. Quantities stated herein reflect the City of Portland usage only. Purchases from other agencies do not affect the Contactor’s obligation to the City of Portland. Other agencies will execute their own Contracts with the Bidder. The successful Contractor shall provide quarterly usage reporting of the City of Portland and that of other public agencies. Any Bidder, by written notification included with their bid, may decline to extend the prices and terms of this bid to any and/or all other public agencies.

3.2 Additional Purchases

The City reserves the right to purchase additional equipment [or materials] beyond the quantities stated in the bid documents at the same prices submitted by the Bidder. Such additional purchases are not guaranteed and will be made at the City’s sole discretion.

3.3 Preparation of Bids

3.3.1 Intent Of Specifications

The intent of these specifications is to provide the City with fully operational wood utility poles. Bidders shall include in their bids all costs for all components and labor necessary to ensure that the poles are fully operational, regardless of any apparent omission of any particular component of these specifications.

If it appears the City omitted an important component of any item identified in this bid, the Bidder shall bring that matter to the attention of the City during the period of time available for requesting clarification [as indicated in Section 2.3] The specifications in this ITB will be part of the Contract between the City and the successful Bidder(s).

3.3.2 Silence Of Specification

The silence or omission of the specifications as to any detail means that only the best commercial practices are to prevail in this ITB and resulting Contract; only materials and workmanship of first quality are to be used.

3.3.3 Taxes

Taxes, whether State or Federal, shall not be included in the bid prices. A tax exemption certificate will be provided by the City on request.

3.4 Submission of Bids

3.4.1 Bid Submittal

By submitting a bid, the Bidder agrees to furnish any and all equipment, supplies and/or services required by the ITB, at the prices quoted, pursuant to all requirements and specifications as contained therein.

City Project 132042 Page 9 of 21 ITB for Supply of Wood Utility Poles

For purposes of review and in the interest of the City's Sustainable Paper Use Policy and sustainable business practices in general, the City requests the use of submittal materials (i.e. paper, envelopes) that contain post-consumer recycled content and are readily recyclable. Submittals shall not include 3-ring binders or any plastic binding, folder, or indexing material. Reusable binding posts, clips, or rings and recycled content paper envelopes or folders are examples of acceptable bindings. Submittals shall be printed on both sides of a single sheet of paper wherever applicable; if sheets are printed on both sides, it is considered to be two pages. Color is acceptable, but content should not be lost by black-and-white printing or copying.

All bids must be clearly and distinctly typed or written with ink or indelible pencil. Do not erase mistakes. Instead, cross out mistakes and correct them and corrections typewritten or written in ink adjacent thereto, and initialed in ink by the party signing the bid, or an authorized representative. As a result of any of these actions, if the intent of the Bidder is not clearly identifiable, the interpretation most advantageous to the City will prevail. All bids must be on the form furnished by the City, or it may be rejected by the City. The omission of such items as delivery dates, or any other required information may cause the offer to be considered non-responsive.

Bid Prices The prices submitted shall be firm during the first year of the Contract period. If unit prices are requested, they shall be shown for each unit on which there is a bid. The Bid price includes the cost to obtain all permits and licenses that may be required to perform the Contract. All prices quoted shall include all packing, handling, shipping charges, and the warranty provisions and requirements as listed in these specifications, FOB delivered and unloaded at the designated location(s). If assembly is required, offered prices shall include all costs associated with delivery, assembly, set-up and proper disposal of packaging materials. The offer price shall be exclusive of any sales, purchaser, or consumer tax.

Submit unit prices if requested.

Bid prices shall remain valid for sixty (60) calendar days from bid opening unless otherwise indicated within the ITB. If the bid is accepted, prices shall remain firm for the specified Contract period.

3.4.2 Bid Bond

A bid bond is not required.

If the Bidder does not enter into a Contract, the City may award the Contract to the next lowest, responsible and responsive Bidder.

3.4.3 Execution Of Contract

The Bidder to whom award is made shall execute and return the Contract in the required number of copies, and shall furnish all required bonds and insurance certificates satisfactory to the city within twenty (20) days after the Bidder receives the Contract.

3.4.4 Failure To Execute Contract

Failure on the part of the Bidder to whom the Contract is awarded to execute the Contract and deliver the Contract, all required bonds and insurance certificates within the time

City Project 132042 Page 10 of 21 ITB for Supply of Wood Utility Poles required permits the City to cancel the award of the Contract and charge Bidder for the difference in price between its bid and that of the next lowest responsible bidder.

SECTION 4 STANDARD TERMS AND CONDITIONS FOR CITY OF PORTLAND CONTRACTS

The following are some of the terms and conditions that will apply should a contract be awarded:

4.1 Definitions

The definitions found in PCC 5.33.010A shall apply to the contract:

4.2 Independent Contractor Status

The Contractor is engaged as an independent Contractor and is responsible for any federal, state, and local taxes and fees applicable to payments hereunder. The Contractor, its Subcontractors, and their employees are not employees of the City and are not eligible for any benefits through the City including, without limitation, federal social security, health benefits, workers’ compensation, unemployment compensation, and retirement benefits.

4.3 No Third Party Beneficiaries

Contractor and City 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.

4.4 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.

4.5 Compliance With Applicable Law

Contractor shall comply with all federal, state and local laws, codes, regulations and ordinances applicable to the provision of goods under this Contract, including, without limitation, the provisions of ORS 279C.505, 279C.515, and 279B.235, as set forth below and the provisions of: (i) Title VI of the Civil Rights Act of 1964 and its corresponding regulations as further described at:

http://www.portlandoregon.gov/bibs/article/446806 ;

Additional conditions applicable to this solicitation and/or any resultant purchase order or contracts are included in Appendix A as attached hereto.

4.6 Business Compliance

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. The Bidder must be in compliance with the regulations regarding conducting business in the City of Portland and State of Oregon before an award may be made. The Bidder shall be responsible for the following:

4.6.1 Certification as an EEO Affirmative Action Employer

All Bidders must be certified as Equal Employment Opportunity Employers as prescribed by Chapter 3.100 of the Code of the City of Portland prior to contract award. Details of certification requirements are available from Procurement Services, 1120 SW Fifth

City Project 132042 Page 11 of 21 ITB for Supply of Wood Utility Poles

Avenue, Room 750, Portland, Oregon 97204, (503) 823-6855, website:

http://procure.portlandoregon.gov . To apply for certification go to our website at:

www.ebidexchange.com/cityofportland.

4.6.2 Non-Discrimination In Employee Benefits (Equal Benefits) Bidders must be in compliance with the City’s Equal Benefits Program as prescribed by Chapter 3.100 of the Code of the City of Portland prior to contract award. Details of compliance requirements are available from Procurement Services, 1120 SW Fifth Avenue, Room 750, Portland, Oregon 97204, (503) 823-6855, website:

www.portlandonline.com. To apply for certification go to the following website:

www.ebidexchange.com/cityofportland. Failure to comply with the Program permits the City to impose sanctions or require remedial actions as stated in Section 13 of the Rules.

4.6.3 City of Portland Business License Tax Account

Prior to execution of a Contract, Contractor shall provide City of Portland business license tax account number, or shall provide proof of exemption from said registration requirements, as issued by the City of Portland Bureau of Revenue. Failure to do so within twenty (20) days after Bidder receives tender of the Contract may result in withdrawal of the Contract award. Details of compliance requirements are available from the Revenue Bureau License and Tax Division, 111 SW Columbia Street, Suite 600, Portland, Oregon 97201, (503) 823-5157, website: http://www.portlandonline.com/omf/index.cfm?c=29320

4.6.4 State of Oregon Business Registration

The successful Bidder(s) must also be in compliance with business registration regulations for the State of Oregon; details are available at www.filinginoregon.com.

4.6.4.1 Notification To State Of Nonresident Contractor

If the Contract Price exceeds $10,000 and the Contractor is a Nonresident Contractor, the Contractor shall promptly report to the Oregon Department of Revenue on forms provided by the Department of Revenue, the Contract Price, terms of payment, Contract duration and such other information as the Department of Revenue may require before final payment can be made on the Contract. A copy of the report shall be forwarded to the City. The City shall satisfy itself that the above requirements have been complied with before it issues final payment on the Contract (PCC 5.33.695) http://www.oregon.gov/dor/forms/misc/nonresident-bidder_800-020.pdf.

4.6.5 Terms and Conditions

In connection with its activities under this Contract, Contractor shall comply with all applicable Grant Terms and Conditions. This includes all terms and conditions contained in this Contract and, for a contract involving a grant, the Grant Terms and Conditions as further described at: http://www.portlandoregon.gov/bibs/article/455735

4.7 Governing Law / Venue

The provisions of this Contract shall be construed in accordance with the provisions of the laws of the State of Oregon without reference to its conflict of laws provisions. Any action or suits involving any question arising under this Contract shall be brought in the appropriate court in Multnomah

City Project 132042 Page 12 of 21 ITB for Supply of Wood Utility Poles

County, Oregon. By executing this Contract the Contractor agrees to in person jurisdiction of the Oregon courts.

4.8 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 the Contractor or its officers, employees, Subcontractors, or agents including intentional acts, or of its Subcontractors, agents or employees under this Contract.

4.9 Assignment of Anti-Trust Rights

By entering into a Contract, the Contractor, for consideration paid to the Contractor under the Contract, does irrevocably assign to the City of Portland any claim for relief or cause of action which the Contractor now has or which may accrue to the Contractor in the future, including, at the City's option, the right to control any such litigation on such claim for relief or cause of action, by reason of violation of 15 USC SS 1-15 or ORS 646.725 or ORS 646.730, in connection with any goods or services provided to the Contractor by any person, which goods or services are used, in whole or in part, for the purpose of carrying out the Contractor's obligation under this Contract.

In the event the Contractor hires Subcontractors to perform any of the Contractor's duties under the Contract, the Contractor shall require the Subcontractor to irrevocably assign to the City of Portland, as a third party beneficiary any right, title or interest that has accrued or may accrue to the Subcontractor by reasons of any violation of 15 USC SS 1-15, ORS 646.725 or ORS 646.730, including, at the City's option, the rights to control of any litigation arising thereunder, in connection with any goods or services provided to the Subcontractor by any person, in whole or in part, for the purpose of carrying out the Subcontractor's obligations as agreed to by the Contractor in pursuance of the completion of the Contract.

In connection with this assignment, it is an express obligation of the Contractor that it will take no action which will in any way diminish the value of the rights conveyed or assigned hereunder to the City of Portland. It is an express obligation of the Contractor to advise the City Auditor or the Office of the City Attorney of Portland, Oregon:

A. In advance, of its intention to commence any action on its own behalf regarding such claims for relief or causes of action;

B. Immediately, upon becoming aware of the fact that an action has been commenced on its own behalf by some other person or persons, of the pendency of such action; and

C. The date on which it notified the obligor(s) of any such claims for relief or causes of action of the fact of its assignment to the City of Portland.

Furthermore, it is understood or agreed that in the event that any payment under such claim is made to the Contractor, it shall promptly pay over to the City of Portland its proportionate share thereof, if any, assigned to the state hereunder.

4.10 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

City Project 132042 Page 13 of 21 ITB for Supply of Wood Utility Poles 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.

4.11 Survival

All obligations relating to confidentiality, indemnification, publicity, representations and warranties, proprietary rights, limitations of liability, if any, and obligations to make payments shall survive the termination or expiration of this Contract.

4.12 Assignment and Subcontracting

This Contract or any interest therein shall not be assigned, transferred or subcontracted to any other person or entity without the prior written consent of the City of Portland. 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. 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.

4.13 Liens

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

4.14 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, electrical power surges or current fluctuations; nuclear or other civil or military emergencies, or acts of legislative, judicial, executive, or administrative authorities.

4.15 Sustainable Procurement

Pursuant to the City’s Sustainable City Principles, which direct City Bureaus to pursue long-term social equity, environmental quality, and economic vitality through innovative and traditional mechanisms, the Contractor is encouraged to incorporate these Principles into their scope of work with the City wherever possible. Therefore in accordance with the Principles and the City's Sustainable Procurement Policy, 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.

Packaging should be minimized to the maximum extent possible without compromising product quality. The City encourages packaging that is reusable, recyclable in local recycling programs, is made from recycled materials, and/or is collected by the vendor for reuse/recycling.

4.16 Change Orders

City Project 132042 Page 14 of 21 ITB for Supply of Wood Utility Poles

All changes to this Contract, including changes to the scope of work and Contract amount, must be made by written change order and approved by the Chief Procurement Officer to be valid. 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 Chief Procurement Officer, or to waive the approval of the City Attorney's office.

4.17 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 City to enforce any provision of this Contract shall not constitute a waiver of that or any other provision.

4.18 Coordination with Other Contractors and Other Services

The Contractor shall cooperate fully with other Contractors and City employees providing systems or support to the City during installation, operation, or maintenance of the goods and services. This includes planning for and integration of the goods and services provided under this Contract with those provided by others. Further, Contractor shall make every reasonable effort to cooperate with City to minimize and/or prevent any degradation of the other computer and telecommunications systems, equipment, or services of the City by the installation, operation, or maintenance of the goods and services. Contractor’s failure to cooperate with the City and other Contractors may be grounds for termination as provided herein.

4.19 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.

4.20 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 six (6) 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 THE CONTRACT and REMEDIES. In addition, the Contractor agrees to abide by the standards of the Office of the Comptroller set forth in May, 2002 Office of Justice Programs (OJP) Financial Guide, including without limitation in accordance with Office of Management and Budget (OMB) Circulars A87, A-102, A-122, A-128, A-133. All financial records, supporting documents, statistical records and all other records pertinent to this Contract shall be retained by the Contractor for a minimum of five (5) years for purposes of State of Oregon or the OJP Financial Guide from the Office of the Controller and apprise itself of all rules and regulations set forth.

City Project 132042 Page 15 of 21 ITB for Supply of Wood Utility Poles

4.21 Purchasing from City Employees

No purchase can be made from any business with which a City employee is associated unless authorized by PCC 5.33.070. No City employee or elected official of the City shall be admitted to any share or part of this Contract or to any benefit that may arise there from; but, this provision shall not be construed to extend to this Contract if made with a corporation for its general benefit.

4.22 Termination

The City, by written notice to the Contractor, may terminate this Agreement: a) for any reason deemed appropriate in its sole discretion, or b) for a material breach of contract.

City Project 132042 Page 16 of 21 ITB for Supply of Wood Utility Poles

SECTION 5 ADDITIONAL CONTRACT TERMS AND CONDITIONS APPLICABLE TO THIS

CONTRACT

5.1 Performance Bond and Payment Bond

No performance or payment bonding is required for this project and offered pricing should reflect this cost savings.

5.2 INSURANCE – PROOF OF COVERAGE

Work shall not commence until all insurance requirements have been met and certificates thereof have been filed with the Chief Procurement Officer or the Auditor. Contractor shall obtain and maintain in full force at Contractor expense, throughout the duration of the Contract and any warranty or extension periods, the required insurance identified below. The City reserves the right to require additional insurance coverage as required by statutory or legal changes to the maximum liability that may be imposed on Oregon cities during the term of the Contract.

5.2.1 Workers' Compensation

Workers' compensation insurance as required by ORS Chapter 656 and as it may be amended. Unless exempt under ORS Chapter 656, the Contractor and all subcontractors shall maintain coverage for all subject workers.

__ Required and attached

5.2.2 General Commercial Liability (CGL)

General commercial Liability (CGL) insurance covering bodily injury, personal and advertising injury, property damage, including coverage for independent contractor's protection (required if any work will be subcontracted), premises/operations, contractual liability, products and completed operations, in per occurrence limit of not less than $2,000,000.

5.2.3 Automobile Liability

Automobile liability insurance with coverage of not less than $2,000,000 each accident.

The insurance shall include coverage for any auto or all owned, scheduled, hired and non-owned auto. This coverage may be combined with the commercial general liability insurance policy.

5.2.4 Continuous Coverage; Notice of Cancellation

The Contractor agrees to maintain continuous, uninterrupted coverage for the duration of the Contract. There shall be no termination, cancellation, material change, potential exhaustion of aggregate limits or non renewal of coverage without thirty (30) days written notice from Contractor to the City. If the insurance is canceled or terminated prior to completion of the Contract, Contractor shall immediately notify the City and provide a new policy with the same terms. Any failure to comply with this clause shall constitute a material breach of Contract and shall be grounds for immediate termination of this Contract.

City Project 132042 Page 17 of 21 ITB for Supply of Wood Utility Poles

5.2.5 Additional Insured

The liability insurance coverages, except Professional Liability, Errors and Omissions, or Workers' Compensation, shall be shall be without prejudice to coverage otherwise existing, and shall name the City of Portland and its bureaus/divisions, officers, agents and employees as Additional Insureds, with respect to the Contractor's activities to be performed, or products or services to be provided. Coverage shall be primary and non-contributory with any other insurance and self-insurance. Notwithstanding the naming of additional insureds, the insurance shall protect each additional 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.

5.2.6 Certificate(s) of Insurance:

Contractor shall provide proof of insurance through acceptable certificate(s) of insurance and additional insured endorsement form(s) to the City prior to the award of the Contract if required by the procurement documents (e.g., request for proposal), or at execution of Contract and prior to any commencement of work or delivery of goods or services under the Contract. The Certificate(s) will specify all of the parties who are endorsed on the policy as Additional Insureds (or Loss Payees). Insurance coverages required under this Contract shall be obtained from insurance companies acceptable to the City of Portland.

The Contractor shall pay for all deductibles and premium. The City reserves the right to require, at any time, complete, certified copies of required insurance policies, including endorsements evidencing the coverage the required.

5.2.7 Subcontractor(s):

Contractor shall provide evidence that any subcontractor, if any, performing work or providing goods or service under the Contract has the same types and amounts of coverages as required herein or that the subcontractor is included under Contractor's policy.

5.2.8 Additional Purchases

The City reserves the right to purchase additional equipment [or materials] beyond the quantities stated in the bid documents at the same prices submitted by the Bidder. Such additional purchases are not guaranteed and will be made at the City’s sole discretion.

5.2.9 Certification

For commercial products inclusive of industry standardized products, in lieu of normal sampling and testing procedures by the Bidder and the City, the City may accept from Bidder two (2) copies of the manufacturer’s certification with respect to the product involved, under conditions set forth as follows:

Certification shall state that the named product conforms to City’s requirements and that representative samples thereof have been sampled and tested as specified. Certification shall either be accompanied with a certified copy of test results, or certify that such test results are on file with the manufacturer and will be furnished to the City upon request.

City Project 132042 Page 18 of 21 ITB for Supply of Wood Utility Poles

Certification shall give the name and address of the manufacturer, testing agency and the date of applicable testing.

City shall not be responsible for any costs of the certification or for any costs of the sampling and testing of products in connection therewith.

5.3 Delivery, Inspection, Testing, and Contract Administration

5.3.1 Inspection Of Goods

No equipment, supplies, and/or services received by an agency or jurisdiction pursuant to a Contract shall be deemed accepted until the agency has had reasonable opportunity to inspect said equipment, supplies, and/or services.

All equipment, supplies, and/or services which do not comply with the specifications and/or requirements or which are otherwise unacceptable or defective may be rejected. In addition, all equipment, supplies, and/or services which are discovered to be defective or which do not conform to any warranty of the Contractor upon inspection (or at any later time if the defects contained were not reasonably ascertainable upon the initial inspection) may be rejected.

5.3.2 Warranty

The Contractor shall guarantee its products to be free from defects in materials and workmanship, given normal use and care, over the period of the manufacturer warranty.

The Contractor shall agree to repair and/or immediately replace without charge (including freight inbound and outbound) to City Users any product or part thereof, which proves to be defective or fails within the warranty period as specified

5.4 Rejection of Delivered Goods

The City’s right to reject any unacceptable equipment, supplies, and/or services shall not exclude any other legal, equitable or Contractual remedies the City may have. The City reserves the right to return any such rejected shipment at the Contractor’s expense for full credit or replacement and to specify a reasonable date by which replacements must be received.

5.5 Oregon Hazard Communication Rules:

The Contractor must comply with all provisions of OAR 437, Subsection H: Hazardous Materials.

Inquiries concerning compliance should be directed to any office of the Accident Prevention Division or the Workers' Compensation Department central office in Salem

Material Safety Data Sheets (MSDS) shall be provided along with delivery of the product to each Bureau or Division that receives merchandise. The City does not have a centralized Hazard Communication Rules program and supplying MSDS's to one location does not qualify as compliance.

The City reserves the right to refuse and withhold payment for shipments that are not properly labeled or for which an MSDS has not been provided. Noncompliance with OAR 437 is violation of this Contract and justifiable cause for cancellation.

City Project 132042 Page 19 of 21 ITB for Supply of Wood Utility Poles

SPECIAL CONDITIONS

Where special conditions are written in the specifications, these special conditions shall take precedence over any general conditions listed elsewhere in the bid solicitation in the event of a conflict. These “Terms and Conditions” are not to be construed as exclusive remedies or as a limitation upon rights or remedies that may be or may become available under ORS Chapter 71-83 (Universal Commercial Code).

SECTION 6 ATTACHMENTS

1. REPRESENTATIONS, CERTIFICATIONS

2. NON-COLLUSION AFFIDAVIT

3. BUY OREGON PREFERENCE CERTIFICATION

VI. EXHIBITS AND APPENDICES

A EXHIBIT A – SCOPE OF WORK

B. EXHIBIT B – MATERIAL SPECIFICATIONS

C. EXHIBIT C – PRICING SCHEDULE AS BID FORM

City Project 132042 Page 20 of 21 ITB for Supply of Wood Utility Poles

ATTACHMENT 1

REPRESENTATIONS, CERTIFICATIONS, AND ACKNOWLEDGMENTS

[This form must be submitted with bid]

OFFER DATE

OFFEROR NAME

OFFEROR DOING BUSINESS AS

OFFEROR ADDRESS

AUTHORIZED REPRESENTATIVE NAME

AUTHORIZED REPRESENTATIVE TITLE

AUTHORIZED REPRESENTATIVE PHONE

AUTHORIZED REPRESENTATIVE EMAIL

AUTHORIZED REPRESENTATIVE MAILING

ADDRESS

AUTHORIZED REPRESENTATIVE SIGNATURE

NAME OF LOCAL REPRESENTATIVE

LOCAL REPRESENTATIVE PHONE

LOCAL REPRESENTATIVE EMAIL

TYPE OF ORGANIZATION Sole proprietorship;

Partnership;

Corporate entity (not tax-exempt);

Corporate entity (tax-exempt);

Government entity (Federal, State, or local);

Other:

COMMON PARENT Offeror is not owned or controlled by a common parent:

Name and TIN of common parent:

Name:

TIN:

RESIDENT BIDDER

All Offerors must state whether or not they are an Oregon resident Bidder as defined in ORS 279A.120, a resident Offeror is one who has paid unemployment taxes or income taxes in the State during the twelve (12) calendar months immediately preceding bid submission, has a business address in Oregon, and has stated in their bid to be a resident bidder.

Offeror is a Resident Bidder Offeror is not a Resident Bidder State of Residence:

City Project 132042 Page 21 of 21 ITB for Supply of Wood Utility Poles

ATTACHMENT 2

NON-COLLUSION AFFIDAVIT

FOR

CITY OF PORTLAND SOLICITATION NO. 00002446

[This form notarized and submitted with bid]

STATE OF

COUNTY OF

I, , state that I am (Printed Name) (Position/Title) of and that I am authorized to execute this affidavit (Name of Firm) on behalf of this firm, and its owners, directors, and officers. I am the person responsible in my firm for the price(s) and the amount of this bid.

I state that:

1. The price(s) and the amount of this bid have been arrived at independently and without consultation, communication or agreement with any other contractor, offeror, or…