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HomeMy WebLinkAbout21- Purchase Agreement - Floyd's Trucking - Chip Truck with Dump HoistAgreement for Purchase of One (1) New 2020 (or newer) Truck with Forestry Chip Body and Dump Hoist installed FY2021 Page 1 of 7 PURCHASE AGREEMENT THIS AGREEMENT is made and entered into this 6th day of April, 2021 (“Effective Date”), by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and, Floyd’s Truck Center, hereinafter referred to as “Seller.” The City and Seller may be referred to individually as “Party” and collectively as “Parties.” In consideration of the mutual promises and agreements hereinafter contained, the parties agree as follows: 1. Property Purchased: Seller agrees to sell and City agrees to purchase the property requested and described in the Bid Specifications for One (1) New 2020 (or newer) Truck with Forestry Chip Body and Dump Hoist installed attached hereto as Exhibit A which is incorporated into this Purchase Agreement by this reference. By accepting this Purchase Agreement, Seller hereby agrees that the sale, use, or incorporation into manufactured products of all machines, software, hardware, materials and other devices furnished under this Purchase Agreement which are not of the Seller’s design, composition, or manufacture shall be free and clear of infringement of any valid patent, copyright, or trademark. Seller shall hold the City harmless from any and all costs and expenses, including attorney fees, liability, and loss of any kind growing out of claims, suits, or actions alleging such infringement, and Seller agrees to defend such claims, suits, or actions. 2. Specifications: The Seller agrees that all material and workmanship in and upon this Property complies with Exhibit A as accepted by the City. Unless otherwise agreed to by the City, the items listed in Exhibit A, govern in the event of inconsistencies with the Seller’s response to the same. 3. Price: The City agrees to pay ninety-two thousand, three hundred ninety-two dollars ($92,392.00) as the purchase price. All prices include shipping and any applicable local, state or federal taxes that may be applied to the Property to be purchased. This price is firm and not subject to escalation under agreed to in writing by the City. 4. Delivery and Payment: Time is of the essence in the performance of this Purchase Agreement. Seller assumes full responsibility for all transportation, transportation scheduling, packing, handling, insurance, and other served associated with delivery of the Property. DocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928 Agreement for Purchase of One (1) New 2020 (or newer) Truck with Forestry Chip Body and Dump Hoist installed FY2021 Page 2 of 7 Seller agrees to delivery to the City in a fully operational status and all accessories properly installed no later than February 1, 2022. Delivery will occur at 1812 N. Rouse Ave, Bozeman, MT 59715, or at a place otherwise designated in writing by the City. If delivery of the Property and/or performance of services required under this Purchase Agreement cannot be made Seller shall promptly notify the City of the earliest possible date for delivery or performance. Notwithstanding such notice, if Seller for any reason fails to deliver the Property or perform required services within the time specific or to the City’s satisfaction the City may terminate this Purchase Agreement or any part therefore without liability except for good or services previously provided and accepted. The City’s receipt or acceptance of any part of a non-conforming delivery or service shall not constitute a waiver of any claim, right or remedy the City has under this Purchase Agreement or applicable law. Upon delivery and for a reasonable period thereafter, City has the right to inspect the Property to ensure that it meets Specifications as modified by Seller’s responses which have been accepted by City. If the Property meets the Specifications, City shall tender the purchase price stated above to Seller through the City’s normal claim process. Unless otherwise agreed to in writing, payment terms shall be net thirty (30) days from the date of receipt of invoice or acceptance and delivery of goods and services by the City, whichever occurs last. Payment will be made to Seller at the address previously stated unless Seller provides a different address in writing. 5. Nondiscrimination and Equal Pay: The Seller agrees that all hiring by Seller of persons performing this Agreement shall be on the basis of merit and qualifications. The Seller will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Seller will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Seller shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. Seller represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104, Montana Code Annotated (MCA) (the Montana Equal Pay Act). Seller must report to the City any violations of the Montana Equal Pay Act that Seller has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. Seller shall require these nondiscrimination terms of its subcontractors providing products under this Agreement. DocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928 Agreement for Purchase of One (1) New 2020 (or newer) Truck with Forestry Chip Body and Dump Hoist installed FY2021 Page 3 of 7 6. Default/Termination/Remedies: In the event of Seller’s breach of this Purchase Agreement, including if Seller fails to deliver the Property as set forth herein or fails to meet City’s Specifications, City may, at its option, take any or all of the following actions without prejudice to any other rights or remedies available to the City by law: (i) declare the Seller in default and immediately cancel and rescind this Purchase Agreement; (ii) require Seller to repair or replace any equipment or materials used in the Property, and upon Seller’s failure or refusal to do so, repair or replace the same at Seller’s expense; (iii) reject any material or equipment included in the Property containing defective or nonconforming equipment or material and return for credit or replacement at Seller’s option; or (iv) cancel any outstanding deliveries and treat such breach by Seller as Seller’s repudiation of this Purchase Agreement. Thereafter, City may procure substitute property to replace the Property described herein. In such event, Seller is liable to City for the difference between the price set forth herein and the price paid by City for the replacement property. Additionally, the City may pursue any other remedy it has at law or in equity. In the event of the City’s breach hereunder, Seller’s exclusive remedy shall be Seller’s recovery of the material or equipment or of the Purchase Price or portion of the Purchase Price payable for equipment and material delivered to the City prior to such breach. 7. Change Orders: The City shall have the right to revoke, amend, or modify this Purchase Agreement or the equipment or material included in the Quotation at any time. Seller’s receipt of City’s written change order without response received by the City within 10 (ten) business days or Seller’s shipment or other performance reflecting the change, whichever occurs first, shall be Seller’s acceptance of the change without any price or other adjustment. 8. WARRANTY: THE SELLER SHALL WARRANTY THE PROPERTY INCLUDING ALL COMPONENT PARTS IN ACCORDANCE WITH WARRANTY SPECIFICS LISTED IN EXHIBIT B AND SHALL ASSIGN TO THE CITY ALL WARRANTIES FOR ALL COMPONENT PARTS OF THE PROPERTY NOT WARRANTIED BY SELLER. IN ADDITION, THE SELLER AGREES THE PROPERTY IS COVERED BY IMPLIED WARRANTIES FOR MERCHANTABILITY AND FITNESS FOR THE PARTICULAR PURPOSE FOR WHICH IT HAS BEEN PURCHASED. IN ADDITION TO ANY OTHER EXPRESSED OR IMPLIED WARRANTIES AND UNLESS OTHERWISE AGREED IN WRITING, SELLER ALSO WARRANTS THAT ALL EQUIPMENT DELIVERED HEREUNDER WILL BE NEW, SUITABLE FOR USE AS DESCRIBED, OF THE GRADE AND QUALITY SPECIFIED, FREE FROM ALL DEFECTS IN DESIGN, MATERIAL AND WORKMANSHIP; IN CONFORMITY WITH ALL SPECIFICATIONS FURNISHED; IN COMPLIANCE WITH ALL APPLICABLE FEDERAL, STATE AND LOCAL LAWS AND REGULATIONS AND FREE FROM ANY LIENS AND ENCUMBRANCES. THESE WARRANTIES SHALL NOT BE DEEMED TO EXCLUDE SELLER’S STANDARD WARRANTIES OR OTHER RIGHTS OR WARRANTIES WHICH THE CITY MAY HAVE OR OBTAIN. DocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928 Agreement for Purchase of One (1) New 2020 (or newer) Truck with Forestry Chip Body and Dump Hoist installed FY2021 Page 4 of 7 9. Insurance/Indemnification: The Seller shall insure the Property for a minimum of the purchase price against all damages during the delivery period per the Specifications. In addition to and independent from the above, during the delivery period Seller shall defend, indemnify, and hold the City, its officers, employees, and agents harmless against claims, demands, suits, damages, losses, and expenses connected therewith that may be asserted or claimed against, recovered from or suffered by the City by reason of any injury or loss, including but not limited to, personal injury, including bodily injury or death, property damage, occasioned by, growing out of, or in any way arising or resulting from any intentional or negligent act on the part of Seller, it’s agents or employees. This provision shall survive delivery and acceptance by the city of the Property. 10. Assignment: Seller may not delegate, subcontract, or assign any duties and services or assign any rights or claims under this Purchase Agreement without the express written consent of City. 11. Entire Agreement: This Agreement, including its appendices, if any, embodies the entire understanding between the parties relating to the subject matter contained herein. No agent or representative of either party has authority to make any representations, statements, warranties or agreements not herein expressed and all modifications or amendments of this Agreement, including the appendices, must be in writing and signed by an authorized representative of each of the parties hereto. 12. Applicability: This Agreement and any extensions hereof shall be governed and construed in accordance with the laws of the State of Montana, venue shall be in the Eighteen Judicial District, Gallatin County Montana, and the same is binding upon the parties, their heirs, successors, and assigns. 13 Permits: Seller shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman business license, and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 14. Laws and Regulations: Seller shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non- discrimination, affirmative action, and utilization of minority and small business statutes and regulations. DocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928 Agreement for Purchase of One (1) New 2020 (or newer) Truck with Forestry Chip Body and Dump Hoist installed FY2021 Page 5 of 7 15. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Contractor may not subcontract or assign Contractor’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. 16. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 17. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney’s Office staff. 18. Dispute Resolution: a. Any claim, controversy, or dispute between the Parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the Parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 19. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 20. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. DocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928 Agreement for Purchase of One (1) New 2020 (or newer) Truck with Forestry Chip Body and Dump Hoist installed FY2021 Page 6 of 7 **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** DocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928 Agreement for Purchase of One (1) New 2020 (or newer) Truck with Forestry Chip Body and Dump Hoist installed FY2021 Page 7 of 7 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives the day and year first above written. CITY OF BOZEMAN SELLER By___________________________ By____________________________ Jeff Mihelich City Manager Print Name: ___________________ Print Title: ____________________ APPROVED AS TO FORM: By________________________________ Greg Sullivan, City Attorney DocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928 Salesperson Curt Owen NAME & ADDRESS Tax IDBid PriceFloyd's Truck Center310 Alska Frontage Rd               Belgrade, MT 5971483‐1757379$92,392.00Tri‐State Equipment5250 Midland RdBillings, MT 5910381‐0287111 N/AYesN/A$105,800.00Southco1840 E Dixon BlvdShelby, NC 28152NoneN/ANoNot ReadAlex NordquestMike MaasJesse DiTommasoForestry Division ManagerCity ClerkDeputy City ClerkBid Check:Delivered to Finance: Accepted By: Date:1234City of Bozeman BID ‐ 2020 Truck with Forestry Chip Body and Dump HoistThese bids were opened and read before the undersigned at 3:00 PM on Friday, February 26, 2021.NON-DISCRIMINATION AFFIRMATIONYesNON-COLLUSION AFFIDAVITBID BONDN/AN/ADocuSign Envelope ID: 2A5908AE-94C8-4305-9C1F-AD6744A88DDBDocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928 DocuSign Envelope ID: 2A5908AE-94C8-4305-9C1F-AD6744A88DDBDocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928 DocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928 DocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928 DocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928 DocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928 DocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928 DocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928 DocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928 DocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928 DocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928 DocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928 DocuSign Envelope ID: 5BCDF7A4-41F8-4C5F-B108-704BF5C75928