Exhibit 1 - Sample Contract - v2.doc

Rev Feb 2022

PURCHASE ORDER No. _________

Contract for Goods Ductile Iron Fittings and Accessories Contract No. 22-187-G By and between

Eugene Water & Electric Board and

Contractor

This Contract is entered into by and between the Eugene Water & Electric Board, hereinafter called EWEB, and ________________________________, hereafter called Contractor.

WHEREAS, EWEB has negotiated the following agreement (“Agreement” or “Contract”) in Eugene, Oregon, and Contractor has agreed to deliver its goods in Eugene, Oregon;

NOW THEREFORE, in consideration of a sum agreed to by the Parties, the Contractor agrees to sell and deliver the goods as described in this Contract, in accordance with all requirements, terms and conditions of this Contract, as set forth below:

1. Effective Date and Duration.

a.

This Contract shall become effective on the date this Contract has been signed by every party hereto and, when executed by EWEB's Purchasing Supervisor. Unless terminated or extended, this Contract shall expire on ___________________, 202__. Expiration shall not extinguish or prejudice EWEB’s right to enforce this Contract with respect to any breach of a Contractor warranty or any default or defect in goods that has not been cured.

b.

Unless terminated in accordance with the early termination provisions in Attachment A, this Agreement will automatically renew on the anniversary of the original Contract Execution Date. Contractor must notify EWEB within 90 days of the anniversary of the original Contract execution date. The maximum term for this Agreement shall not exceed five (5) years.

2. Required Goods, Pricing, and Delivery Schedule.

a. The maximum, not-to-exceed compensation payable to Contractor under this Contract, which includes any allowable expenses, is $_______________.

b. The required goods as defined in the Scope of Work of the solicitation, pricing detail, and delivery schedule are contained in attachment E - Statement of Work, attached and incorporated by reference into this Contract.

3. Specifications.

Contractor shall deliver all Goods specified in Section 2 above in accordance with this Section 3. Contractor’s failure to deliver Goods and Services in accordance with the provisions of this Contract is a material breach of this Contract.

a. General provisions.

i. Standard Components. Unless specified otherwise in this Section 3 Specifications, Contractor shall provide Goods with all components and accessories that the manufacturer lists as “standard” for Goods.

ii. Necessary Components. Unless specified otherwise in this Section 3 Specifications, Contractor shall include all components, hardware and parts necessary for complete and proper assembly, installation and operation of Goods.

iii. New and Unused Goods. Unless specified otherwise in this Section 3 Specifications, Contractor shall deliver Goods that are new, unused and produced from current production inventory. Contractor shall provide Goods manufactured from only those components that the manufacturer offers in the manufacturer’s current parts catalogue for Goods.

b. Detailed Specifications.

All goods furnished under the resulting Contract shall comply with the applicable attached material specification contained in attachment E.

4.

Pricing and Price Adjustments.

Pricing a.

A universal discount percentage from the manufacturer’s suggested retail price list shall be applied to all items ordered by EWEB, including those shown on the Bid Form (Exhibit #1) AND any special orders placed.

b.

A copy of the most recent manufacturer’s suggested retail price list is attached as Exhibit #2.

c.

Invoices shall always reflect prices in effect on the date the EWEB Purchase Order was issued to Contractor.

d.

A copy of the manufacturer’s most recent suggested retail price list, including all EWEB contracted items, will be provided no later than 90 days after Contract execution and thereafter, every 90 days as follows for the life of the Contract according to the following schedule (whether pricing has changed or not):

[Dates to be inserted]

Requested Price Increases a.

Contractor guarantees that no price increase will be requested for the first 12 months of the Contract, with no exceptions.

b.

Contractor guarantees that no more than one price increase request per year of the Contract term will be submitted to EWEB.

Changes in prices/discounts will only be considered if the request is made between 15 and 60 days before the annual anniversary date of Contract execution date, and then only in the same proportional amount that changes have occurred on the manufacturer's latest published price list. (Example: Manufacturer raises price 2%. Requested price increase will be no more than 2% etc.) EWEB will NOT consider price increases outside this parameter.

The manufacturer’s most recent retail price list must accompany the written request for price change. All information regarding any proposed price or discount change shall be submitted to EWEB in writing.

EWEB shall have the right to accept or reject any proposed change(s) in any of the originally bid prices or discounts. If the proposed price or discount changes are accepted, they shall become effective on the first day of the Contract renewal period.

Price Decreases a.

Contractor guarantees a decrease in the same proportional amount of any price decreased on the manufacturer’s most currently released retail price list each quarter of the Contract term.

5.

Addition/Deletion and Product Substitution of Goods.

Contractor will make available to EWEB products that have been added to the product line by the manufacturer or products in the same product line not specifically listed on this Contract. These products will be available at pricing and discount consistent with current items available under the Contract.

EWEB reserves the right to remove any product that has demonstrated to be unsatisfactory under the Contract and purchase replacement product from alternative sources. Upon EWEB’s determination that a product under the Contract is unsatisfactory, EWEB will notify Contractor upon discovery and remove the product from the Contract.

Any substitution(s) for originally contracted item(s) must have the approval of EWEB prior to any substitution. If approved by EWEB, the substituted item(s) must be offered to EWEB at no increase in cost and the quality cannot be less than the originally contracted item. Contractor shall be responsible for securing all approvals and will also be responsible for all charges such as freight, storage, labor, etc., which accrue to any shipments of unauthorized substituted material. EWEB will not be responsible to pay for shipments of unauthorized product.

6.

Deficiencies.

If EWEB determines that any Goods are not acceptable and that any deficiencies are the responsibility of the Contractor, EWEB shall prepare a detailed written description of any deficiencies and an associated time frame for correction and deliver such notice to Contractor. Contractor shall correct any deficiencies at no cost to EWEB. If the identified deficiencies have not been corrected within the specified timeline, EWEB may: (i) terminate this Contract without payment or any further obligation or liability of any kind; or (ii) require Contractor to continue to correct the deficiencies, reserving this same right to terminate at any time

7.

Review & Approval.

a.

Goods provided by Contractor shall be reviewed by the EWEB Contract Administrator for compliance with the Specifications. The EWEB Contract Administrator shall review the Goods within ten (10) business days of receipt and shall promptly notify Contractor of their approval or rejection.

b.

If any Goods fail to conform to the Specifications, EWEB will, in its notification, specify the manner in which it fails to comply and stating the timeframe for Contractor to cure non-conformance. Upon receipt of such written notice, Contractor will correct any such failures within the timeframe specified, and shall redeliver the Goods to the EWEB Contract Administrator for re‑evaluation, all at no additional charge to EWEB.

Thereafter, if the Good fails to conform as required, EWEB may allow Contractor an additional opportunity to correct the Good, again at no additional charge to EWEB.

c.

When EWEB determines that Goods conform in accordance with the Specifications; then EWEB shall notify Contractor that Final Acceptance of the Goods have occurred 8.

Insurance

Contractor shall provide certificates of insurance as described below:

a.

Certificates of Insurance. As evidence of the insurance coverage required by this Contract, the Contractor shall furnish certificate(s) of insurance to the EWEB Purchasing Department, before final award can be authorized. The insurance coverage required under this Contract shall be obtained from insurance companies or entities having a minimum financial rating of A.M. Best’s Key Rating A-; VII or higher. The Contractor shall be financially responsible for all deductibles, self-insured retention and/or self-insurance included hereunder.

b.

Commercial General Liability. Contractor shall obtain, at Contractor's expense, and keep in effect during the term of this Contract, Commercial General Liability Insurance written on the current ISO occurrence form (or a substitute form providing equivalent coverage) including coverage for premises, operations, independent contractors (performing work on Contractor’s behalf), completed operations and contractual liability. The limit shall not be less than $1,000,000 per occurrence and subject to an aggregate limit of no less than $2,000,000.

The insurance must include EWEB, its' divisions, officers, and employees as additional insureds and must apply as primary insurance without any contribution from any other insurance or self-insurance afforded to such additional insured. There must not be any endorsement or modification of this insurance to make it excess over any other insurance available to such additional insured. Insurance or self-insurance maintained by EWEB or other additional insureds is in excess of Contractor’s insurance, contingent and non-contributory.

The insurance must provide that insurer waives all rights to recover any payment made from EWEB, its' divisions, officers, and employees.

c.

Automobile Liability. Contractor shall obtain, at Contractor's expense, and keep in effect during the term of this Contract, Automobile Liability Insurance to cover liability arising out of any auto (including owned, hired and non-owned) used in connection with the work or services This coverage may be written in combination with the Commercial General Liability Insurance. Combined single limit per occurrence shall not be less than $1,000,000, or the equivalent.

The insurance must include EWEB, its' divisions, officers, and employees as additional insureds and must apply as primary insurance without any contribution from any other insurance or self-insurance afforded to such additional insured. There must not be any endorsement or modification of this insurance to make it excess over any other insurance available to such additional insured. Insurance or self-insurance maintained by EWEB or other additional insureds is in excess of Contractor’s insurance, contingent and non-contributory.

The insurance must provide that insurer waives all rights to recover any payment made from EWEB, its' divisions, officers, and employees.

d.

Workers' Compensation. All subject employers working under this Contract are either employers that will comply with ORS 656.017 which requires them to provide Oregon workers' compensation coverage that satisfies Oregon law for all their subject workers, or employers that are exempt under ORS 656.126. [2003 c.794 §76c] In addition, Contractor will obtain, at Contractor's expense, and keep in effect during the term of this Contract, Employers Liability insurance with a limit of not less than $1,000,000 each accident for bodily injury by accident, $1,000,000 each employee for bodily injury by disease, and a $1,000,000 policy limit for bodily injury by disease.

The insurance must provide that insurer waives all rights to recover any payment made from EWEB, its' divisions, officers, and employees

e. Indemnification. Contractor shall defend, save, hold harmless, and indemnify EWEB, its officers, employees and agents from and against all claims, suits, actions, losses, damages, liabilities, costs and expenses by either Consultant or any third parties resulting from, arising out of, or relating to any error, omission, breach of contractual duty, or negligent act of the Contractor or its officers, employees, subcontractors, or agents in the performance of services under this Contract.

f.

Notice of Cancellation or Change. There shall be no cancellation, material change, potential exhaustion of aggregate limits or non-renewal of insurance coverage(s) without 30 days' written notice from Contractor or its insurer(s) to EWEB.

Failure to Maintain Insurance - If at any time either Party fails to maintain insurance complying with the requirements reflected herein, in full force and effect, (i) the Party failing to maintain such insurance shall be responsible for any resulting losses or costs sustained by the other Party and shall hold the other Party harmless from actions brought against such Party as the result of the absence of the Party’s required insurance, and (ii) the other Party shall not be required but may elect to do any of the following: (A) immediately suspend all or a portion of the Work and be entitled to an equitable adjustment in the price, schedule and other terms of the Contract for the impact of the suspension (B) pay premiums or purchase alternate insurance at the other Party’s expense; or (C) pursue such other remedies as may be allowed by law.

Failure to Comply - Any failure to comply with the reporting provisions of this clause shall constitute a material breach of Contract and shall be grounds for immediate termination of this Contract by EWEB.

g.

Reserved h.

Waiver of Insurance Requirements Contractor’s failure to provide certificates of insurance as specified herein and/or in the manner specified herein does not constitute a waiver of the insurance requirements. Any waiver of the insurance requirements will only be made in writing.

10.

Contact Person.

Contractor shall designate one or more person(s) responsible for Contractor's work under this Contract. Contractor shall provide EWEB the names, addresses and telephone numbers of such person(s) and shall keep this information current at all times. The representative shall be thoroughly familiar with the terms of the Contract and shall have the technical knowledge to perform the work.

11.

EWEB Contacts.

Following are EWEB's contacts for this Contract:

Contract Administrator: Name, Phone Number, Email Accounts Payable: accountspayable@eweb.org Purchasing Contact: Sandra Hahn, 541-685-7163, Sandra.hahn@eweb.org

12. Tobacco Free Workplace EWEB campuses, worksites, vehicles, and equipment (known collectively as “EWEB Campus”), are smoke-free. Contractors and their staff may not use or distribute tobacco products in any EWEB Campus, nor can they inhale, exhale, burn, or carry any lighted smoking material or vapor. Contractors and staff must extinguish or cease use prior to entering any EWEB campus and must dispose of tobacco products appropriately prior to entry. Improper disposal includes littering, spitting smokeless tobacco, or any measure which creates a fire or hazard or could disrupt the campus or worksite.

13. Safety The Contractor shall comply with all federal, state, and local safety and health regulations and laws including, but not limited to, the following:

· Oregon Revised Statutes - ORS 654 – The Oregon Safe Employment Act

· Oregon Administrative Rules - OAR 437, Divisions 1-3 - The Oregon Occupational Safety and Health Division (Or-OSHA)

14. Reserved

15. Independent Contractor / Responsibility for Taxes and Withholding

a. Contractor certifies its status as an independent contractor in satisfaction of Oregon law, including ORS 670.600, and shall perform all required Work as an independent contractor. EWEB holds the right (i) to determine the delivery schedule for the Work to be performed and (ii) to evaluate the quality of the completed performance, but EWEB cannot and will not control the means or manner of Contractor’s performance. Contractor is responsible for determining the appropriate means and manner of performing the Work.

b. The parties covenant that Contractor, its subcontractors, Agents, Officers and Representatives do not qualify as officers, employees, or agents of EWEB as those terms are used in ORS 30.265 nor shall they seek such qualification relating to performance of the Work.

c. Contractor agrees it is responsible for all federal and state taxes or other payments or withholdings applicable to compensation or payments paid to Consultant under this Contract and shall hold EWEB harmless from such financial exposures.

16. Sustainability.

EWEB requires suppliers to comply with the Sustainable Purchasing Policy and to implement the following strategies where applicable.

· EWEB aims to prevent waste where possible. Unnecessary packaging should be eliminated and required packaging should be reusable and/or made with recycled content, bio-degradable, and/or non-toxic materials.

· Fuel reduction strategies shall be implemented including efficiencies in shipping techniques, increasing manufacturing efficiencies over time, and reducing the use of idling vehicles. Where the supplier is not in compliance with our Policy, disclosure is required.

· EWEB requests vendors use environmentally preferable products wherever practical, characteristics of environmentally preferable products include recyclable, energy efficient, non-toxic, and/or certified by an independent accredited third-party program such as EcoLogo or Energy Star

· EWEB supports the use of Minority, Women, Emerging Small Businesses (M/W/ESB), local businesses, Disadvantaged Business Enterprises and Qualified Rehabilitation Facilities (QRF) at both a prime and subcontracting and/or supply chain level. EWEB encourages the awarded offeror to use the following voluntary practices to promote open competitive opportunities for disadvantaged businesses as applicable.

17. Survival.

Termination or expiration of this Contract does not extinguish or prejudice EWEB’s right to enforce the access to records, indemnification, governing law, and remedies provisions contained within this Contact, its attachments, exhibits, and any and all subsequent Addenda or amendments.

18. Contract Documents.

This Contract consists of the following documents, hereby incorporated by reference, which are listed in descending order of precedence: this Contract less all attachments and exhibits, Attachment A - Standard Terms and Conditions, and Attachment E - Statement of Work with Pricing Form.

This Contract and the attached attachments and exhibits constitute the entire agreement between the parties. All understandings and agreements between the parties and representations by either party concerning this Contract are contained in this Contract. No waiver, consent, modification or change in the terms of this Contract shall bind either party unless in writing signed by both parties. Any written waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.

19. Assurances:

· The undersigned represents and warrants to EWEB that they have the power and authority to enter into and perform this Contract and that this Contract, when executed by EWEB, shall be a valid and binding obligation of Consultant enforceable in accordance with its terms.

· Contractor, by signing this Contract, represents and warrants that Contractor’s performance under this Contract creates no potential or actual conflict of interest, including but not limited to conflicts of interest as defined in ORS 244.020. Contractor further warrants that no state or federal law or EWEB rule prevents Contractor's lawful performance of the Contract. If Contractor is currently performing work for EWEB or another governmental entity, Contractor’s participation in other public contracts does not create a potential or actual conflict of interest in performance of this Contract.

· Contractor shall, at all times during the term of this Contract, be duly licensed to perform the Work, and if there is no licensing requirement for the profession or work, be duly qualified and professionally competent.

· Contractor understands that the Owner is an Equal Employment Opportunity and Affirmative Action employer and requires Contractors and their sub-Contractors to follow EEO/AA practices in their performance of a Contract with EWEB.

20. CONTRACT EXECUTION

CONTRACTOR, BY EXECUTION OF THIS CONTRACT, HEREBY ACKNOWLEDGES THAT CONTRACTOR HAS READ THIS CONTRACT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.

CONTRACTOR:

Company Name

Company Address

Telephone Number Fax Number

FEDERAL ID NUMBER

Email Address: ______________________________________________________________________

_______________________________________________________Title___________________________

Person Signing Contract (Please print or type Name)

Signature: _____________________________________________________________________________ Contractor to fill out MWESB Status below:

MWESB Status

EWEB encourages contracting with minority owned, woman owned, and emerging small businesses (MWESB). The State of Oregon offers a certification process. Indicate below if your business is a MWESB and if so, which categories have been state certified.

MWESB Certified? Yes _____ No _____. If yes, indicate which categories below:

Minority Owned _____ Woman Owned _____ Emerging Small Business _____ Veteran Owned _____

EXECUTION

EWEB:

Contract Administrator - Name Date Email Address: __________________________________________________________________________

Supervisor/Manager - Name Date

Purchasing Supervisor - Name Date Contract #22-187-G

Ductile Iron Fittings Rev. 6-13-22