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HomeMy WebLinkAbout23 - Payment Agreements - Tri State Truck and Equipment, Inc - Volvo D13 Tracktor TruckPurchase Agreement Page 1 of 5 BID PURCHASE AGREEMENT THIS AGREEMENT is made this ____day of___________, 2023, by and between the CITY OF BOZEMAN, a municipal corporation organized and existing under the laws of the State of Montana, 121 North Rouse Ave., Montana 59715, hereinafter referred to as “City,” and Tri-State Truck & Equipment, Inc, with a mailing address of 5250 Midland Road, Billings, MT 59101, hereinafter referred to as (“Seller”). 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 City’s Bid Specifications, as modified by the parts of Seller’s response accepted by City, all of 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. The property being purchased (“Property”) consists of: One (1) New Current Model Year 2023 or Newer Volvo D13 Tractor Truck. TOTAL PRICE: $173,092.54 2. SPECIFICATIONS: The Seller agrees that all material and workmanship in and upon this Property complies with the City’s Bid Specifications as shown on the Seller’s Bid Form and the Seller’s response thereto as accepted by the City. Unless otherwise agreed to by the City, the City’s Bid Specifications as shown on the Seller’s Bid Form govern in the event of inconsistencies with the Seller’s response to the same. 3. PRICE: The City agrees to pay One Hundred Seventy-Three Thousand Ninety- Two 54/100 Dollars ($173,092.54) as the purchase price. All prices are less 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. Seller agrees to deliver the above-described Property to the City within ninety (90) days of the receipt of City’s order. Delivery will occur at the City of Bozeman’s Vehicle Maintenance DocuSign Envelope ID: 872A98F1-9502-4065-B360-1C6766B9B89A June27th Purchase Agreement Page 2 of 5 Shop (1812 North Rouse Ave., Bozeman, MT 59715), or at a place otherwise selected by 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 or 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 Bid Specifications as modified by Seller’s responses accepted by City. If the Property meets the modified Bid Specifications, City shall tender the purchase price stated above to Seller through the City’s normal claim process. Unless otherwise agreed in writing, payment terms shall be net thirty (30) days from the date of receipt of invoice or acceptance 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. Invoices must be mailed to: John Van Delinder, Street Superintendent, PO Box 1230, Bozeman, MT 59771-1230. 5. NONDISCRIMINATION: Seller will not discriminate in the performance of this Agreement on the basis of race, color, religion, creed, sex, age, marital status, national origin, or because of actual or perceived sexual orientation, gender identity or disability and shall ensure this provision applies to all subcontracts let by the Seller in fulfillment of this Purchase Agreement. 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 Bid 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 Bid Specifications at any time. Seller’s receipt of City’s written change order without response received by the City within DocuSign Envelope ID: 872A98F1-9502-4065-B360-1C6766B9B89A Purchase Agreement Page 3 of 5 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 FOR A MINIMUM OF TWO (2) YEARS AND SHALL ALSO 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. 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, and the same is binding upon the parties, their heirs, successors, and assigns. DocuSign Envelope ID: 872A98F1-9502-4065-B360-1C6766B9B89A Purchase Agreement Page 4 of 5 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. 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. DocuSign Envelope ID: 872A98F1-9502-4065-B360-1C6766B9B89A Purchase Agreement Page 5 of 5 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. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** 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 (Type Name Above) By___________________________________ By____________________________________ Jeff Mihelich, City Manager Print Name: ___________________________ Print Title: ____________________________ APPROVED AS TO FORM: By____________________________________ Greg Sullivan, City Attorney DocuSign Envelope ID: 872A98F1-9502-4065-B360-1C6766B9B89A DocuSign Envelope ID: 872A98F1-9502-4065-B360-1C6766B9B89A DocuSign Envelope ID: 872A98F1-9502-4065-B360-1C6766B9B89A DocuSign Envelope ID: 872A98F1-9502-4065-B360-1C6766B9B89A DocuSign Envelope ID: 872A98F1-9502-4065-B360-1C6766B9B89A DocuSign Envelope ID: 872A98F1-9502-4065-B360-1C6766B9B89A DocuSign Envelope ID: 872A98F1-9502-4065-B360-1C6766B9B89A NOTICE OF AWARD Dated: June 15, 2023 TO: Tri-State Truck & Equipment, Inc ADDRESS: 5250 Midland Road, Billings, MT 59101 CONTRACT FOR: One (1) New Current Model Year 2023 or Newer Volvo D13 Tractor Truck. You are notified that your Bid opened on May 11, 2023 at 2 p.m. for the above Contract has been considered. You are the apparent Successful Bidder and have been awarded a Contract for the: One (1) New Current Model Year 2023 or Newer Two Hundred and Thirty-four (234) Inch Wheelbase Day Cab Tractor Truck. The Contract Price of your Contract is: One hundred Seventy-three thousand, Ninety two 54/100 Dollars ($173,092.54) Two (2) copies of each of the proposed Contract Documents have been signed and One copy accompanies this Notice of Award for your records. CITY OF BOZEMAN, MONTANA BY: __________________________________ (CITY MANAGER) BY: ___________________________________ (CITY CLERK) DATE: _______________________________ DocuSign Envelope ID: 872A98F1-9502-4065-B360-1C6766B9B89A DocuSign Envelope ID: 872A98F1-9502-4065-B360-1C6766B9B89A DocuSign Envelope ID: 872A98F1-9502-4065-B360-1C6766B9B89A DocuSign Envelope ID: 872A98F1-9502-4065-B360-1C6766B9B89A