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22-82 Approving Mountain Shadows Park Irrigation Project Water Technology Group Agreement 07-13-20223 of 177 AGREEMENT BETWEEN BUYER AND SELLER FOR PROCUREMENT CONTRACTS Prepared by and Issued and Published Jointly by AMERICAN COUNCIL OF ENGINEERING COMPANIES AMERICAN SOCIETY OF CIVIL ENGINEERS ASSOCIATED GENERAL CONTRACTORS OF AMERICA PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE A Practice Division of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS EJCDC P-520, Agreement Between Buyer and Seller for Procurement Contracts. Copyright © 2010 National Society of Professional Engineers, American Council of Engineering Companies, American Society of Civil Engineers, and Associated General Contractors of America. All rights reserved. Page i This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This document should be adapted to the particular circumstances of the contemplated Project and the controlling Laws and Regulations. 4 of 177 Copyright © 2010: National Society of Professional Engineers 1420 King Street, Alexandria, VA 22314-2794 (703) 684-2882 www.nspe.org American Council of Engineering Companies 1015 15th Street, N.W., Washington, DC 20005 (202) 347-7474 www.acec.org American Society of Civil Engineers 1801 Alexander Bell Drive, Reston, VA 20191-4400 (800) 548-2723 www.asce.org Associated General Contractors of America 2300 Wilson Boulevard, Suite 400, Arlington, VA 22201-3308 (703) 548-3118 www.agc.org The copyright for EJCDC P-520 is owned jointly by the four EJCDC sponsoring organizations listed above. The National Society of Professional Engineers (NSPE) is the Copyright Administrator for the EJCDC documents; please direct all inquiries and requests regarding EJCDC copyrights to NSPE. NOTE: EJCDC publications may be purchased at www.ejcdc.org, or from any of the four sponsoring organizations above. EJCDC P-520, Agreement Between Buyer and Seller for Procurement Contracts. Copyright © 2010 National Society of Professional Engineers, American Council of Engineering Companies, American Society of Civil Engineers, and Associated General Contractors of America. All rights reserved. Page ii This Agreement Between Buyer and Seller for Procurement Contracts has been prepared for use with the Standard General Conditions for Procurement Contracts (EJCDC P-700, 2010 Edition). Their provisions are interrelated, and a change in one may necessitate a change in the others. The suggested wording contained in the Suggested Instructions to Bidders for Procurement Contracts (EJCDC P-200, 2010 Edition), the Suggested Bid Form for Procurement Contracts (EJCDC P-400, 2010 Edition), and the Guide to the Preparation of Supplementary Conditions for Procurement Contracts (EJCDC P-800, 2010 Edition) is also carefully interrelated with the wording of this Agreement. 5 of 177 EJCDC P-520, Agreement Between Buyer and Seller for Procurement Contracts. Copyright © 2010 National Society of Professional Engineers, American Council of Engineering Companies, American Society of Civil Engineers, and Associated General Contractors of America. All rights reserved. Page iii This document contains a suggested format and suggested terms and conditions that will be applicable in most situations. Additional information concerning the use of this and other EJCDC Procurement Documents may be found in the Commentary on the EJCDC Procurement Documents (EJCDC P-001, 2010 Edition). For brevity in the text, the Standard General Conditions for Procurement Contracts (EJCDC P-700, 2010 Edition) will be referred to as "General Conditions." For brevity in the “Notes to Users” referenced paragraphs of the Suggested Instruction to Bidders (EJCDC P-200, 2010 Edition) are referred to with the prefix “I”, those of the Bid Form (EJCDC P-400, 2010 Edition) with the prefix “BF”, and those of the General Conditions (P-700, 2010 Edition) or Supplementary Conditions (EJCDC P-800, 2010 Edition) with the prefix “GC” or “SC”. 6 of 177 TABLE OF CONTENTS Article 1 – GOODS AND SPECIAL SERVICES ...................................................................................... 1 Article 2 – THE PROJECT ......................................................................................................................... 1 Article 3 – ENGINEER .............................................................................................................................. 1 Article 4 – POINT OF DESTINATION ..................................................................................................... 1 Article 5 – CONTRACT TIMES ................................................................................................................ 1 Article 6 – CONTRACT PRICE................................................................................................................. 2 Article 7 – PAYMENT PROCEDURES .................................................................................................... 2 Article 8 – INTEREST ............................................................................................................................... 3 Article 9 – SELLER’S REPRESENTATIONS .......................................................................................... 3 Article 10 – CONTRACT DOCUMENTS ................................................................................................. 4 Article 11 – MISCELLANEOUS ............................................................................................................... 5 EJCDC P-520, Agreement Between Buyer and Seller for Procurement Contracts. Copyright © 2010 National Society of Professional Engineers, American Council of Engineering Companies, American Society of Civil Engineers, and Associated General Contractors of America. All rights reserved. Page iv 7 of 177 AGREEMENT THIS AGREEMENT is by and between Town of Firestone (“Buyer”) and Water Technology Group (a Cogent Company) (“Seller”). Buyer and Seller hereby agree as follows: ARTICLE 1 – GOODS AND SPECIAL SERVICES 1.01 Seller shall furnish the Goods and Special Services as specified or indicated in the Contract Documents. ARTICLE 2 – THE PROJECT 2.01 The Project, of which the Goods and Special Services may be the whole or only a part, is identified as follows: A. Provide and Install one submersible pumping system; B. Provide and Install one variable frequency drive; C. Provide and Install one flowmeter; D. Provide and Install one 1Q3 lineator. ARTICLE 3 – ENGINEER 3.01 The Contract Documents for the Goods and Special Services have been prepared by McGrane Water Engineering, LLC. (“Engineer”), which is to act as Buyer’s representative, assume all duties and responsibilities, and have the rights and authority assigned to Engineer in the Contract Documents in connection with Seller’s furnishing of Goods and Special Services. ARTICLE 4 – POINT OF DESTINATION 4.01 The Point of Destination is designated as: Town of Firestone, Mountain Shadows Park Pump Station, Weld County, Colorado. ARTICLE 5 – CONTRACT TIMES 5.01 Time of the Essence A. All time limits for Milestones, if any, including the submittal of Shop Drawings and Samples, the delivery of Goods, and the furnishing of Special Services as stated in the Contract Documents, are of the essence of the Contract. 5.02 Milestones A. Date for Submittal of Shop Drawings and Samples: Seller shall submit all Shop Drawings and Samples required by the Contract Documents to Buyer for Engineer’s review and acceptance within twenty-one (21) Contract Days. It is the intent of the parties that (1) B. Engineer conduct such review and issue its acceptance, or a denial accompanied by substantive comments regarding information needed, within 14 days of EJCDC P-520, Agreement Between Buyer and Seller for Procurement Contracts. Copyright © 2010 National Society of Professional Engineers, American Council of Engineering Companies, American Society of Civil Engineers, and Associated General Contractors of America. All rights reserved. Page 1 EJCDC P-520, Agreement Between Buyer and Seller for Procurement Contracts. Copyright © 2010 National Society of Professional Engineers, American Council of Engineering Companies, American Society of Civil Engineers, and Associated General Contractors of America. All rights reserved. Page 2 8 of 177 Seller’s submittal of such Shop Drawings and Samples; and (2) resubmittals be limited whenever possible. If more than one resubmittal is necessary for reasons not the fault and beyond the control of Seller, then Seller shall be entitled to seek appropriate relief under Paragraph 7.02.B of the General Conditions. C. Date for Delivery of Goods: The Goods are to be delivered to the Point of Destination and ready for Buyer’s receipt of delivery on (or within a period of 15 days prior to) the following: 1. November 30, 2022 for shipment from the factory, or 20 weeks from Town Board Approval (scheduled for July 13, 2022); 2. March 29, 2023 for start-up; 3. April 12, 2023 for final completion. 5.03 Buyer’s Final Inspection A. Days to Achieve Final Inspection: Buyer shall make its final inspection of the Goods pursuant to Paragraph 8.01.C of the General Conditions within 14 days after Buyer’s acknowledgement of receipt of delivery of the Goods and Seller’s completion of furnishing Special Services, if any. 5.04 Liquidated Damages A. Buyer and Seller recognize that Buyer will suffer financial loss if the Goods are not delivered at the Point of Destination and ready for receipt of delivery by Buyer within the times specified in Paragraph 5.02 above, plus any extensions thereof allowed in accordance with Article 7 of the General Conditions. The parties also recognize that the timely performance of services by others involved in the Project is materially dependent upon Seller’s specific compliance with the requirements of Paragraph 5.02. Further, they recognize the delays, expense, and difficulties involved in proving the actual loss suffered by Buyer if complete acceptable Goods are not delivered on time. Accordingly, instead of requiring such proof, Buyer and Seller agree that as liquidated damages for delay (but not as a penalty) Seller shall pay Buyer $200.00 for each day that expires after the times specified in Paragraph 5.02.B for delivery of acceptable Goods. ARTICLE 6 – CONTRACT PRICE 6.01 Buyer shall pay Seller for furnishing the Goods and Special Services in accordance with the Contract Documents as follows: A. The prices stated in Seller’s Bid, attached hereto as an exhibit. ARTICLE 7 – PAYMENT PROCEDURES 7.01 Submittal and Processing of Payment A. Seller shall submit Applications for Payment in accordance with Article 10 of the General Conditions. Applications for Payment will be processed by Engineer as provided in the General Conditions. 13 of 177 7.02 Progress Payments; Retainage A. Buyer shall make progress payments on account of the Contract Price on the basis of Seller’s Applications for Payment as follows: 1. Applications for Payment accompanied by Engineer’s recommendation of payment in accordance with Paragraph 10.01.A.2 of the General Conditions shall be paid in accordance with the Specifications, less five-percent (5%) retainage and such amounts as Engineer may determine in accordance with Paragraph 10.02.A.3 of the General Conditions. 7.03 Final Payment A. Upon receipt of the final Application for Payment accompanied by Engineer’s recommendation of payment, Buyer shall pay Seller the amount recommended by Engineer, less any sum Buyer is entitled to set off against Engineer’s recommendation, including but not limited to liquidated damages. ARTICLE 8 – INTEREST 8.01 All monies not paid when due as provided in Article 10 of the General Conditions shall bear interest at the statutory rate. ARTICLE 9 – SELLER’S REPRESENTATIONS 9.01 In order to induce Buyer to enter into this Agreement, Seller makes the following representations: A. Seller has examined and carefully studied the Contract Documents and the other related data identified in the Bidding Documents, as applicable to Seller’s obligations identified in Article 1 above. B. If required by the Bidding Documents to visit the Point of Destination and site where the Goods are to be installed or Special Services will be provided, or if, in Seller’s judgment, any local condition may affect cost, progress, or the furnishing of the Goods and Special Services, Seller has visited the Point of Destination and site where the Goods are to be installed or Special Services will be provided and become familiar with and is satisfied as to the observable local conditions that may affect cost, progress, and the furnishing of the Goods and Special Services. C. Seller is familiar with and is satisfied as to all Laws and Regulations that may affect cost, progress, and the furnishing of the Goods and Special Services. Seller has carefully studied, considered, and correlated the information known to Seller; information commonly known to sellers of similar goods doing business in the locality of the Point of Destination and the site where the Goods will be installed or where Special Services will be provided; information and observations obtained from Seller’s visits, if any, to the Point of Destination and site where the Goods are to be installed or Services will be provided; and any reports and drawings identified in the Bidding Documents regarding the Point of Destination and the site where the Goods will be installed or whereSpecial Services will be provided, with respect to the effect of such information, observations, and documents on the cost, progress, and performance of Seller’s obligations 13 of 177 under the Contract Documents. D. Seller has given Engineer written notice of all conflicts, errors, ambiguities, or discrepancies that Seller has discovered in the Contract Documents, and the written resolution (if any) thereof by Engineer is acceptable to Seller. E. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for furnishing Goods and Special Services. ARTICLE 10 – CONTRACT DOCUMENTS 10.01 Contents A. The Contract Documents consist of the following: 1. This Agreement (pages _1_ to A-2, inclusive); 2. Performance Bond (pages _____); 3. Payment Bond (pages ______); 4. General Conditions (pages 1 to 61 , inclusive); 5. Supplementary Conditions (pages 1 to 16 , inclusive); 6. Specifications as listed in table of contents of the Project Manual; 7. Drawings, Plan Map (1 Page), Draft Electrical One-Line (1 page) & Pumping Equipment Submittal Package (39 Pages) 8. Addenda (Numbers to , inclusive); 9. Exhibits to this Agreement (enumerated as follows): a. Seller’s Bid, solely as to the prices set forth therein (Bid Form Page BF-1 to BF-4). b. Documentation submitted by Seller prior to Notice of Award (Attachment A); 10. The following which may be delivered or issued on or after the Effective Date of the Agreement and are not attached hereto: a. Notice to Proceed; b. Change Order(s); B. Work Change Directive(s).The documents listed in Paragraph 10.01.A are attached to this 13 of 177 Agreement (except as expressly noted otherwise above). C. There are no Contract Documents other than those listed above in this Article 10. D. The Contract Documents may only be amended, or supplemented as provided in Paragraph 3.04 of the General Conditions. ARTICLE 11 – MISCELLANEOUS 11.01 Terms A. Terms used in this Agreement will have the meanings indicated in the General Conditions and the Supplementary Conditions. 11.02 Assignment of Contract A. Buyer has the right to assign this Contract for furnishing Goods and Special Services and Seller shall consent to such assignment upon request by the Buyer. Forms documenting the assignment of the Contract, and consent of Seller’s surety to the assignment are attached as exhibits to this Agreement. 1. The Contract will be executed in the name of Buyer initially, and may be assigned to a construction contractor designated by Buyer. Such construction contractor’s responsibilities will include the installation of the Goods. The assignment will occur upon execution of all required counterparts. As of the date of acceptance of assignment by the construction contractor, all references in the Contract Documents to Buyer shall mean the designated construction contractor. 2. The assignment of the Contract shall relieve the assignor from all further obligations and liabilities under this Contract. After assignment, Seller shall become a subcontractor or supplier to the assignee and, except as noted herein, all rights, duties, and obligations of Buyer under the Contract shall become the rights, duties, and obligations of the assignee. 3. After assignment: a. All performance warranties, guarantees, and indemnifications required by the Contract Documents will continue to run for the benefit of assignor and, in addition, for the benefit of the assignee. However, if assignor and assignee make the same warranty or guarantee claim, then Seller shall only be liable once for such claim. b. Except as provided in this Paragraph 11.02.A.3.b, all rights, duties, and obligations of Engineer to assignee and Seller under this Contract will cease. 1) Engineer will review Seller’s Applications for Payment and make recommendations to assignee for payments as provided in Paragraphs 10.02 and 10.06 of the General Conditions. 2) Upon the written request of either the assignee or Seller, Engineer will issue with reasonable promptness clarifications or interpretations of the Contract 13 of 177 Documents pursuant to the terms of Paragraph 9.02.A of the General Conditions. B. No other assignment by a party hereto of any rights under or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound. Specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by Laws and Regulations). Unless specifically stated to the contrary in any written consent to such an assignment, such an assignment will not release or discharge the assignor from any duty or responsibility under the Contract Documents. 11.03 Successors and Assigns A. Buyer and Seller each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents. 11.04 Severability A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Buyer and Seller. The Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 11.05 Seller’s Certifications A. Seller certifies that it has not engaged in corrupt, fraudulent, collusive, or coercive practices in competing for or in executing the Contract. For the purposes of this Paragraph 11.05: 1. “corrupt practice” means the offering, giving, receiving, or soliciting of any thing of value likely to influence the action of a public official in the bidding process or in the Contract execution; 2. “fraudulent practice” means an intentional misrepresentation of facts made (a) to influence the bidding process or the execution of the Contract to the detriment of Buyer, (b) to establish Bid or Contract prices at artificial non-competitive levels, or (c) to deprive Buyer of the benefits of free and open competition; 3. “collusive practice” means a scheme or arrangement between two or more Bidders, with or without the knowledge of Buyer, a purpose of which is to establish Bid prices at artificial, non-competitive levels; and “coercive practice” means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the bidding process or affect the execution of the Contrac 4. t. 11.06 Limitations 13 of 177 A. Buyer and Seller waive against each other, and against the other’s officers, directors, members, partners, employees, agents, consultants, and subcontractors, any and all claims for or entitlement to incidental, indirect, or consequential damages arising out of, resulting from, or related to the Contract. Upon assignment the terms of this Paragraph 11.06.A shall be binding upon the assignee with respect to Seller and assignor. The terms of this mutual waiver do not apply to or limit any claim by either Buyer or Seller against the other based on any of the following: (a) contribution or indemnification, (b) costs, losses, or damages attributable to personal or bodily injury, sickness, disease, or death, or to injury to or destruction of the tangible property of others, (c) intentional or reckless wrongful conduct, or (d) rights conferred by any bond provided by Seller under this Contract. Upon assignment the terms of this Paragraph 11.06.B shall be binding upon both the assignor and assignee with respect to Sel’er's liability, and upon Seller with respect to both assig’or's and assig’ee's liabilities. The terms of this mutual limitation do not apply to or limit any claim by either Buyer or Seller against the other based on any of the following: (a) contribution or indemnification with respect to third-party claims, losses, and damages; (b) costs, losses, or damages attributable to personal or bodily injury, sickness, disease, or death, or to injury to or destruction of the tangible property of other©(c) intentional or reckless wrongful conduct, or (d) rights conferred by any bond provided by Seller under this Contract. 11.07 Other Provisions A. None. EJCDC P-520, Agreement Between Buyer and Seller for Procurement Contracts. Copyright © 2010 National Society of Professional Engineers, American Council of Engineering Companies, American Society of Civil Engineers, and Associated General Contractors of America. All rights reserved. Page 7 15 of 177 EXHIBIT A-1 to Agreement Between Buyer and Seller dated ASSIGNMENT OF CONTRACT; CONSENT TO ASSIGNMENT; AND ACCEPTANCE OF ASSIGNMENT This assignment will be effective on [insert date]. [or] This assignment will be effective on the Effective Date of the Agreement between Buyer and Construction Contractor. The Contract between Town of Firestone (“Buyer”) and Water Technology Group (a Cogent Company) (“Seller”) for furnishing Goods and Special Services under the Contract Documents entitled _Vertical Turbine Pump & Motor Assemblies and VFDs is hereby assigned, transferred, and set over to (“Construction Contractor”). Construction Contractor shall be totally responsible for the performance of Seller and for the duties, rights and obligations of Buyer, not otherwise retained by Buyer, under the terms of the Contract between Buyer and Seller. ASSIGNMENT DIRECTED BY: Buyer (If Buyer is a corporation, attach evidence of authority to sign. If Buyer is a public By: body, attach evidence of authority to sign (Signature) (Title) and resolution or other documents authorizing execution of Buyer-Seller Agreement.) ASSIGNMENT ACKNOWLEDGED AND ACCEPTED BY: Seller (If Seller is a corporation, attach By: evidence of authority to sign.) (Signature) (Title) ASSIGNMENT ACCEPTED BY: Construction Contractor (If Construction Contractor is a corporation, attach evidence of authority By: to sign.) EJCDC P-520, Agreement Between Buyer and Seller for Procurement Contracts. Copyright © 2010 National Society of Professional Engineers, American Council of Engineering Companies, American Society of Civil Engineers, and Associated General Contractors of America. All rights reserved. EXHIBI– A-1 - Page 1 16 of 177 EXHIBIT A-2 to Agreement Between Buyer and Seller dated AGREEMENT TO ASSIGNMENT BY SELLER’S SURETY Surety hereby acknowledges and agrees that the Contract for furnishing Goods and Special Services under the Contract Documents entitled by and between Town of Firestone (“Buyer”) and _Water Technology Group (a Cogent Company) (“Seller”) may be assigned, transferred, and set over to (“Construction Contractor”), in accordance with Paragraph 11.02 of Agreement between Buyer and Seller. Surety further agrees that, upon assignment of the Contract, the Construction Contractor shall have all the rights of the Buyer under the Performance Bond. (Corporate Seal) Surety Company: By: Signature and Title (Attach Power of Attorney) EJCDC P-520, Agreement Between Buyer and Seller for Procurement Contracts. Copyright © 2010 National Society of Professional Engineers, American Council of Engineering Companies, American Society of Civil Engineers, and Associated General Contractors of America. All rights reserved. EXHIBI– A-2 - Page 1