HomeMy WebLinkAbout4.16 Storm Drain Trash Capture Reject All Bids
STAFF REPORT
CITY COUNCIL
DATE:August 16, 2016
TO:
Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
Reject All Bids for the Storm Drain Trash Capture Project (Project No.
ST1312) and Authorize the Direct Purchase of Storm Drain Trash Capture
Devices
Prepared by: Michael Boitnott, Senior Civil Engineer
EXECUTIVE SUMMARY:
On June 1, 2016, bids were publicly opened for the Storm Drain Trash Capture Project
(Project No. ST1312). The City received three bids for the project, all of which were
significantly higher than the Engineer’s Estimate for construction. The City Council will
consider rejecting all bids, purchasing the trash capture devices directly from the
manufacturer, and rebidding the device installation in the future.
STAFF RECOMMENDATION:
Resolution
Staff recommends that the City Council adopt the Rejecting All Bids for the
Storm Drain Trash Capture Project (Project No. ST1312), Waiving the Competitive
Bidding Process, and Authorizing the Purchase of Two Storm Water Trash Capture
Devices through Contech Engineered Solutions, LLC as the Sole Provider, and direct
Staff to rebid the project at a later date.
FINANCIAL IMPACT:
The base bid submitted by the lowest bidder was $638,966, which was 47% over the
Engineer’s Estimate of $435,000 and exceeded the budgeted amount for construction.
Rejecting the bids and purchasing the trash capture units directly from the manufacturer
will save the City approximately $212,000 for the equipment, with installation to be re-
bid at a later date.
DESCRIPTION:
The project provides for the installation of two storm drain trash capture devices and
modifications to the existing storm drain system at two locations: one on Amador Valley
Boulevard, east of I-680, and another south of the Regional Street terminus, near I-580.
The trash capture device uses swirl concentration and continuous deflective separation
to screen, separate, and trap trash, debris, sediment, and hydrocarbons from storm
water runoff prior to discharging the water into a creek or channel. The installation of
Page 1 of 3
these trash capture devices is necessary for the City to comply with the performance
requirements within the Municipal Regional Stormwater NPDES Permit.
On June 1, 2016, the City publicly opened bids for the project. Three bids were
received with GradeTech Inc. being the apparent low bidder. The base bid from the
apparent low bidder is $638,966, which is 47% over the Engineer’s Estimate for
construction. A detailed summary of the bids received is included in Attachment 1.
The most significant cost for this project is the contractor’s proposed price of the
devices themselves, at approximately $320,000 for both devices, which includes a
significant markup. Per a discussion with the manufacturer of the storm drain trash
capture units, it is not uncommon for owners to purchase and furnish the units in order
to minimize the contractor markup and to reduce the overall project duration.
Accordingly, Staff proposes to purchase the units directly from the manufacturer, at a
quoted cost for the two units of approximately $108,000, (Attachment 3), and furnish
them to a contractor to install.
The trash capture units are not off-the-shelf devices; they are built to order and have a
manufacturing lead-time of six to eight weeks. The two storm drain trash capture
devices were specifically engineered and sized for the specific locations dependent on
the trash capture loading and hydraulic flow demands. Contech Engineered Solutions,
LLC is the sole source manufacturer for these two trash capture units.
The Municipal Code establishes the procedures for making purchases and requires that
major purchases for items in excess of $45,000 be awarded by the City Council. The
award is to be based on formal sealed bids unless one of the allowed exceptions is
utilized. The Municipal Code contains a specific exception to the formal bid process
when the City’s requirements can be met solely by a single patented article or process
(Section 2.36.100(B)(1) Dublin Municipal Code). Staff believes the nature of the contract
and purchase with Contech Engineered Solutions, LLC, exempts it from the competitive
bidding process.
Staff believes that purchasing the storm drain trash capture units directly from the
manufacturer and then furnishing the units to the contractor will reduce the overall
project cost and project duration, and will make the project more enticing to contractors.
Furthermore, Staff believes that advertising the project in the winter months, when many
contractors are looking for work for the next construction season, would also result in
better bid prices. With City Council approval, Staff would re-bid the installation project in
early 2017 with a planned construction start date in summer 2017.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
A copy of this staff report was sent to GradeTech Inc.
ATTACHMENTS:
1. Bid Results
2. Resolution Rejecting All Bids for the Storm Drain Trash Capture Project (Project
ST1312)
3. Contech quote
Page 2 of 3
Page 3 of 3
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1
RESOLUTION NO. xx - 16
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* * * * * * * * *
REJECTING ALL BIDS FOR THE
STORM DRAIN TRASH CAPTURE PROJECT (PROJECT NO. ST1312), WAIVING THE
COMPETITIVE BIDDING PROCESS, AND AUTHORIZING THE PURCHASE OF TWO
STORM DRAIN TRASH CAPTURE DEVICES THROUGH CONTECH ENGINEERED
SOLUTIONS, LLC, AS THE SOLE PROVIDER
WHEREAS, Staff prepared plans, specifications and bid documents for construction of
the Storm Drain Trash Capture Project (Project No. ST1312); and
WHEREAS, in accordance with the Municipal Code, California Public Contract Code
Section 20162 and other applicable laws, City Staff solicited bids for the Project; and
WHEREAS, on June 1, 2016, three bids were received and publicly opened in
accordance with applicable laws; and
WHEREAS, the lowest bid for the Project was from GradeTech Inc. for $638,966; and
WHEREAS, the lowest bid received exceeds the amount of funding available for
construction and staff is recommending rejecting all bids, purchasing the storm drain trash
capture units directly from the manufacturer, and rebidding the project at a later date.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin
hereby rejects all bids for the Storm Drain Trash Capture Project (Project No. ST1312), waives
the competitive bidding process and authorizes the purchase of two storm drain trash capture
device through Contech Engineered Solutions, LLC, as the sole provider.
PASSED, APPROVED AND ADOPTED this 16th day of August, 2016, by the following
vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________________
Mayor
ATTEST:
_______________________________________
City Clerk
Item #Description Pieces Quantity Extended Unit
Price
Unit Unit Total
CDS4030-10-C - Site Designation : Amador Valley Blvd, Screen
Aperture Size : 4700, Rim Elev : 334.68, Outlet 1 Invert : 328.78
1.00 1.00 $47,113.00 EA $47,113.00
CDS4045-10-C - Site Designation : Regional St, Screen Aperture
Size : 4700, Rim Elev : 355.4, Outlet 1 Invert : 345.0
1.00 1.00 $57,595.00 EA $57,595.00
DuroMaxx SRPE Pipe High Performance 15psi 36" - Diameter : 36",
Joint Type : Watertight (High Performance @ 15 psi), Length : 24
2.00 48.00 $54.16 FT $2,599.68
Total $107,307.68
(Tax not included)Net Total $107,307.68
Date 8/9/2016 Account Name City of Dublin Reply-To
Quote #QUO-249270-Y7K7F7 Contact Name City of Dublin Contech Rep.John Lewis
Revision #1 Phone (925) 833-6630 Address 1864 Genoa Court, Livermore, CA,
94550
Project Name Dublin Amador Valley
Blvd
Fax (925) 829-9248 Phone 925-292-0666
Project #470020 Email Fax 925-292-1454
Project
City/State
Dublin, CA Email JLewis@conteches.com
Contech's offer to sell the products described in this quotation is expressly conditioned upon Buyer's assent to the Contech Conditions of Sale ("Contech COS") included herewith and/or
viewable at www.conteches.com/cos. A valid tax exemption certificate must be issued to Contech or sales tax will be added.
Standard Notes
1.A fuel surcharge will be added to the invoices for each shipment amounting to $_____ and Buyer agrees to pay for these charges.
2.Allowable unloading time for delivery trucks is one (1) hour. Demurrage charges of $75.00 per hour thereafter will be added.
3.Prices are f.o.b. origin with freight allowed to the jobsite with unloading by others at a truck accessible location.
4.Product-Specific Terms & Conditions: Price: Prices are FOB plant with freight allowed to jobsite and unloading by others. Order Cancellation For
Stormwater Treatment product only. Supercedes cancellation terms on company T&C¶s Purchaser may cancel this order due to project cancellation. In
the event of such cancellation, Purchaser will be liable for payment as follows: 15% of the quoted amount if the order is cancelled prior to approval of
submittals; 25% of the quoted amount if the order is cancelled after the approval of submittals; 50% of the quoted amount if the order has been released to
manufacture, plus any amounts Seller incurs from outside vendors (precasters, fabricators). Orders cancelled for reasons other than project cancellation
may be billed at greater amounts at the sole discretion of Seller. Seller¶s security interest shall survive any cancellation or termination of this agreement.
Submittal Approval Purchaser acknowledges that Seller or his agent shall accomplish production of ordered products in accordance with approved
submittals signed by Purchaser. Production of said products will commence only upon receipt of purchase order and receipt by Seller of approved
submittals. Delivery and Installation Purchaser agrees to provide suitable access for Seller¶s delivery trucks, traffic control and labor, and at least two
people to assist in the unloading of the products. Price includes one-hour waiting time and one hour off-load time. Delays caused by the Purchaser, which
are over and above the two-hour period, will be billed at a cost of no less than $125 per hour and based upon vendor charges to Seller. Unit price does
not include lifting equipment. Customer is responsible for supplying a crane of sufficient lift and reach capacity and rigging for lifting system(s) and/or
system components off delivery trucks, setting in place and all related construction and site activity to and from the system including bed preparation of
crushed stone or other. Seller will under no circumstances accept back-charges without prior written approval. Should problems arise during
delivery/installation, Seller must be notified by Purchaser immediately. Failure to do so may result in additional costs to Purchaser that cannot be credited.
Purchaser agrees to provide a safe delivery site and comply with all Federal, State and local safety requirements. Purchaser further agrees to hold Seller
harmless and to defend any and all actions, claims, suits, and proceedings that may subject Seller to liability due to Purchaser¶s failure to provide a safe
delivery site.
Quotation Page# 1/3
Quote # QUO-249270-Y7K7F7
Scope Of Work
CDS
CDS In-Line and Off-Line - Model numbers followed by ±C or E; Configuration is Concentric or Eccentric
CDS pricing includes Contract drawings and all precast concrete components including the sump, separation slab, riser section(s) and top slab. Also
includes the stainless steel screen assembly, fiberglass inlet section, fiberglass oil baffle, castings and covers, and any mastic/sealants or stainless steel
hardware required for assembly. Price reflects HS-20 loading unless otherwise specified. Installation instructions and standard details available upon
request.
Pricing does not include the following: grade rings to meet rim elevations, installation of structure, onsite assembly of internal components if required due
to weight or size limitations, any necessary cast-in-place work, diversion structure or installation equipment with sufficient lifting and reach capacity and
rigging to lift and set the CDS System(s). There will be additional charges for any lifters left onsite.
CDS Off-Line - Model Numbers followed by ±F; Configuration is Flume Style
CDS pricing includes Contract drawings and all precast concrete components including the sump, separation slab, riser section(s) and top slab. Also
includes the stainless steel screen assembly, fiberglass inlet cylinder, fiberglass oil baffle, fiberglass inlet and outlet flumes, castings and covers, and any
mastic/sealants or stainless steel hardware required for assembly. Price reflects HS-20 loading unless otherwise specified. Installation instructions and
standard details available upon request.
Pricing does not include the following: grade rings to meet rim elevations, installation of structure, onsite assembly of internal components, required cast in
place work, diversion structure or installation equipment with sufficient lifting and reach capacity and rigging to lift and set the CDS System(s). Assembly of
internal components typically includes alignment of stainless screen and fiberglass cylinder to match orientation of inlet and outlet flumes. Cast in Place
work typically includes reinforced concrete connection collar to mechanically attach CDS manhole to diversion structure. There will be additional charges
for any lifters left onsite.
Contech field consulting services are available for installation support at an additional cost to the purchaser. The purchaser may be charged at a rate of
$1,500/day when Contech field consulting services are requested (unless otherwise specified).
DuroMaxx Pipe
DuroMaxx is available in standard ¶and ¶lengths. Other lengths are available but may impact the above pricing. Non-standard pipe lengths and
custom fittings are not returnable.
PAYMENT TERMS ARE 1/2%-10, NET 30 DAYS FROM DATE OF INVOICE UNLESS MATERIAL IS OTHERWISE NOTED AS NON-STANDARD ABOVE. IF NON-STANDARD, PAYMENT TERMS ARE
1/3 AT ORDER ACCEPTANCE AND PRIOR TO START OF PRODUCTION, 2/3 NET 30 DAYS FROM DATE OF INVOICE. THIS OFFER IS SUBJECT TO CREDIT APPROVAL. PRICES QUOTED APPLY
ONLY TO THE REFERENCED PROJECT AND ARE IN EFFECT FOR 30 DAYS FROM THE DATE OF QUOTATION. SELLER RESERVES THE RIGHT TO ADJUST PRICES AFTER 30 DAYS FROM THE
DATE OF QUOTATION BUT THE CONTECH COS REMAIN APPLICABLE. PRICES ARE BASED ON ESTIMATED QUANTITIES SHOWN. IF A DIFFERENT QUANTITY IS PURCHASED, CONTECH
RESERVES THE RIGHT TO ADJUST THE PRICES. THIS QUOTATION CONTAINS THE ENTIRE AGREEMENT WITH RESPECT TO PURCHASE AND SALE OF PRODUCTS DESCRIBED AND
SUPERSEDES ALL PREVIOUS COMMUNICATIONS, BUYER'S SIGNATURE BELOW, DIRECTION TO MANUFACTURE, OR ACCEPTANCE OF DELIVERY OF GOODS DESCRIBED ABOVE, SHALL
BE DEEMED AN ACCEPTANCE OF THE CONTECH COS. SELLER EXPRESSLY REJECTS ANY OTHER TERMS AND CONDITIONS. PRICES ARE F.O.B. ORIGIN WITH FREIGHT ALLOWED TO THE
JOBSITE WITH UNLOADING BY OTHERS AT A TRUCK ACCESSIBLE LOCATION.THIS QUOTATION IS ISSUED BY CONTECH ENGINEERED SOLUTIONS LLC FOR ITSELF AND/OR ON BEHALF
OF ONE OR MORE OF ITS SUBSIDIARIES, INCLUDING BUT NOT LIMITED TO KEYSTONE RETAINING WALL SYSTEMS LLC.
Acceptance Contech Engineered Solutions LLC.
WE HEREBY ORDER THE DESCRIBED MATERIAL SUBJECT TO ALL
TERMS AND CONDITIONS OF THIS QUOTATION AND IN THE Contech
COS INCLUDED HEREWITH AND VIEWABLE AT www.conteches.com/cos
By John Lewis
Company (O)925-292-0666
By (F)925-292-1454
Title (Cell)
Date Title
Quotation Page# 2/3
Quote # QUO-249270-Y7K7F7
1. ACCEPTANCE. This quotation is an offer to sell to potential
customer(s). BUYER¶S RIGHT TO ACCEPT THIS OFFER IS
LIMITED TO BUYER¶S ASSENT TO THE TERMS AND
CONDITIONS PRINTED HEREON AND THE ATTACHED OR
ACCOMPANYING QUOTE, AND NO TERMS ADDITIONAL TO OR
DIFFERENT FROM THOSE IN THIS OFFER ARE BINDING ON
SELLER. THERE ARE NO UNDERSTANDINGS, TERMS,
CONDITIONS OR WARRANTIES NOT FULLY EXPRESSED
HEREIN.
2. LIMITED WARRANTIES. Seller warrants that it can convey
good title to the products sold under this contract and that they are
free of liens and encumbrances. Seller also warrants that the
products sold under this contract are substantially free from defects
in material and workmanship for a period of one year after the date
of delivery. There are no express or implied warranties with respect
to products sold hereunder which are misused, abused or used in
conjunction with mechanical equipment improperly designed, used
or maintained, or which are used, supplied for use or made
available for use in any nuclear application of which Seller has not
been notified in writing by Buyer at the time of order for the products
sold hereunder. SELLER MAKES NO OTHER WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED. ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND ALL IMPLIED
WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE
ARE DISCLAIMED BY SELLER AND EXCLUDED FROM THIS
CONTRACT.
3. LIMITATION OF BUYER¶S REMEDIES AND SELLER¶S
LIABILITY. Seller¶s liability hereunder shall be limited to the
obligation to repair or replace only those products proven to have
been defective in material or workmanship at the time of delivery, or
allow credit, at its option. Seller¶s total cumulative liability in any
way arising from or pertaining to any product or service sold or
required to be sold under this contract shall NOT in any case
exceed the purchase price paid by Buyer for such products or
services. IN NO EVENT SHALL SELLER HAVE ANY LIABILITY
FOR COMMERCIAL LOSS, LOST PROFITS, CLAIMS FOR
LABOR, OR CONSEQUENTIAL, SPECIAL, PUNITIVE OR
INCIDENTAL DAMAGES OF ANY TYPE, WHETHER BUYER¶S
CLAIM BE BASED IN CONTRACT, TORT, WARRANTY, STRICT
LIABILITY, NEGLIGENCE, OR OTHERWISE. IT IS EXPRESSLY
AGREED THAT BUYER¶S REMEDIES EXPRESSED IN THIS
PARAGRAPH ARE BUYER¶S SOLE AND EXCLUSIVE
REMEDIES.
4. LIMITATION OF BUYER¶S REMEDIES AND SELLER¶S
LIABILITY FOR FAILURE OR DELAY IN DELIVERY. NO
DELIVERY DATES ARE GUARANTEED. BUYER¶S SOLE AND
EXCLUSIVE REMEDIES AND SELLER¶S ONLY LIABILITY FOR
ANY DELAY IN DELIVERY SHALL BE LIMITED AS SET FORTH
IN PARAGRAPH 3 OF THIS CONTRACT.
5. FORCE MAJEURE. In any event and in addition to all other
limitations stated herein, Seller shall not be liable for any act,
omission, result or consequence, including but not limited to any
delay in delivery or performance, which is (i) due to any act of God,
the performance of any government order, any order bearing priority
rating or order placed under any allocation program (mandatory or
voluntary) established pursuant to law, local labor shortage, fire,
flood or other casualty, governmental regulation or requirement,
shortage or failure or raw material, supply, fuel, power or
transportation, breakdown of equipment, or any cause beyond
Seller¶s reasonable control whether of similar or dissimilar nature to
those above enumerated, or (ii) due to any strike, labor dispute, or
difference with workers, regardless of whether or not Seller is
capable of settling any such labor problem.
6. BUYER¶S OBLIGATION TO PASS ON LIMITATION OR
WARRANTIES AND REMEDIES. In order to protect Seller against
claims by Buyer¶s buyer, if Buyer resells any of the products
purchased under this agreement, Buyer shall include the language
contained in paragraphs 2 and 3 of this agreement, dealing with
Seller¶s limitations of warranties and remedies, in an enforceable
agreement with Buyer¶s buyer, or otherwise include language in an
enforceable agreement with its buyer that makes Seller¶s limitation
of warranties and remedies binding on its buyer. Buyer shall also
include a provision in its agreement with its buyer applying Ohio law
to any claims its buyer might assert against Seller with respect to
products manufactured by Seller, and requiring its buyer to bring
any such action against Seller either in federal district court in
Cincinnati, Ohio or the common pleas court for Butler County,
Ohio. Buyer shall defend, indemnify and hold Seller harmless from
any and all claims, causes of action, damages, losses or expenses
(including reasonable attorneys¶fees) that Seller incurs by reason of
Buyer¶s failure to comply with this paragraph.
7. PASSAGE OF TITLE. Title to the products sold hereunder shall
pass upon delivery to the carrier at the point of shipment. Neither
Buyer nor the consignee shall have the right to divert or reconsign
such shipment to any destination other than specified in the bill of
lading without permission of the Seller. Unless otherwise agreed
Seller reserves the right to select the mode of transportation.
8. PAYMENTS AND LATE CHARGES ON PAST DUE
ACCOUNTS. Buyer represents that Buyer is solvent and can and
will pay for the products sold to Buyer in accordance with the terms
hereof. If Buyer shall fail to comply with any provision or to make
payments in accordance with the terms of this contract or any other
contract between Buyer and Seller, Seller may at its option defer
shipments or, without waiving any other rights it may have,
terminate this contract. All deliveries shall be subject to the
approval of Seller¶s Credit Department. Seller reserves the right,
before making any delivery, to require payment in cash or security
for payment, and if Buyer fails to comply with such requirement,
Seller may terminate this contract. A late charge of 1-½% monthly
(18% annual rate) or the maximum allowed by state law, if less, will
be imposed on all past due accounts, and Buyer is responsible for
all costs of collection including without limitation reasonable
attorneys¶fees and court costs.
9. TRANSPORTATION CHARGES. Delivered prices or prices
involving competitive transportation adjustments shall be subject to
appropriate adjustment to reflect changes in transportation charges.
10. CLAIMS BY BUYER. Buyer shall thoroughly inspect products
sold under this contract immediately upon receipt to verify
conformance with the specifications of the contract. Buyer must
notify Seller of claims for failure or delay in delivery within 30 days
after the scheduled delivery date. Buyer must notify Seller of any
claims for nonconforming or defective products within 30 days after
the nonconformity or defect was or should have been discovered. In
addition, Seller must be given an opportunity to investigate the claim
before Buyer disposes of the material, or else Buyer¶s claim will be
barred. Seller shall incur no liability for damage, shortages, or other
cause alleged to have occurred or existed at or prior to delivery to
the carrier unless the Buyer shall have entered full details thereof on
its receipt to the carrier.
11. MECHANICAL PROPERTIES; CHEMICAL ANALYSES. Data
referring to mechanical properties or chemical analysis are the
result of tests performed on specimens obtained from specific
locations of the product(s) in accordance with
prescribed sampling procedures; any warranty thereof is limited to
the values obtained at such locations and by such procedures.
There is no warranty with respect to values of the materials at other
locations.
12. PATENTS. Seller shall indemnify Buyer against attorneys¶fees
and any damages or costs awarded against Buyer in the event any
legal proceeding is brought against Buyer by a third person claiming
the material delivered hereunder in itself constitutes an infringement
of any U.S. patent, provided Buyer gives Seller prompt notice of any
such suit being brought, gives Seller the opportunity to defend any
such suit, and cooperates with Seller with respect to any such
defense; unless the material is made in accordance with material
designs, or specifications required by Buyer, in which case Buyer
shall similarly indemnify Seller.
13. PERMISSIBLE VARIATIONS. The products sold hereunder
shall be subject to Seller¶s standard manufacturing variations,
tolerances and classifications.
14. TECHNICAL ADVICE. Buyer represents that it has made its
own independent determination that the products it is purchasing
under this contract meet the design requirements of Buyer¶s project
and are suitable for Buyer¶s intended application. Buyer further
represents that it has not relied in any respect on any written or oral
statements or advice from Seller, other than the standard product
specifications set forth in the most recent addition of Seller¶s
published product brochures, in making that determination.
15. TAXES. No taxes imposed with respect of the sale of the
products or services sold hereunder are included in any quotation
by Seller. All applicable taxes shall be added and paid by Buyer in
addition to the purchase price.
16. BUYER¶S RIGHT OF TERMINATION. Buyer may terminate this
contract in whole or in part upon notice in writing to Seller. Seller
shall thereupon cease work and transfer to Buyer title to all
completed and partially completed products and to any raw
materials or supplies acquired by Seller especially for the purpose
of performing this contract, and Buyer shall pay Seller the sum of
the following:
(1) the contract price for all products which have been completed
prior to termination;
(2) the cost to Seller of the material or work in process as shown on
the books of Seller in accordance with the accounting practice
consistently maintained by Seller plus a reasonable profit
thereon, but in no event more than the contract price;
(3) the cost f.o.b. Seller¶s plant of materials and supplies acquired
especially for the purpose of performing this contract; and
(4) reasonable cancellation charges, if any, paid by Seller on
account of any commitment(s) made hereunder.
17. SELLER¶S RIGHT OF TERMINATION. In addition to the other
rights of termination provided for in this contract, and if this
contract is made pursuant to any governmental rule or regulation,
plan, order or other directive, upon the directive, effected or
impaired.termination thereof, Seller shall have the option of
canceling this contract in whole or in part.
18. WAIVER. Failure or inability of either party to enforce any right
hereunder shall not waive any right in respect to any other or
future rights or occurrences.
19. DELIVERY. Unless otherwise agreed to in writing by the
Seller, the Buyer hereby agrees to take delivery of the materials
on this order within the later of thirty (30) days after the wanted
date shown on the face of the order or within thirty (30) days after
notification, oral or written, that the materials are ready for
shipment. In the event that the Buyer does not arrange to take
delivery of the materials in accordance with this Contract, Seller,
at Seller¶s option, may:
(a) invoice the Buyer for the materials less freight if applicable;
store the material in Seller¶s yard for a period not to exceed sixty
(60) days from the date of invoice; charge a storage fee not to
exceed 5% per month or fraction thereof of the selling price of the
stored materials; add any applicable price increases listed on the
face of the order; charge for any repair work to protective coatings
harmed by weathering while such material is being stored; and
charge applicable freight when shipment to the Buyer is made.
Materials remaining in storage after sixty (60) days from the
invoice date shall become the property of the Seller for disposition
at the Seller¶s discretion. In that event, Buyer shall not be liable
for the invoice price of the materials, but shall be liable for the
storage fee and any repair work to protective coatings; or
(b) cancel the order and invoice the Buyer for cancellation
charges, which shall be 25% of the selling price of the materials if
the materials are standard, in-stock material, or the full selling
price if the materials are special or nonstandard in nature and
were especially fabricated for the Buyer.
20. PERIOD OF LIMITATIONS. Buyer and Seller agree that any
action by Buyer against Seller relating to this contract or the
products sold hereunder, including, without limitation, any action
for breach of contract or warranty, or otherwise in connection with
the products sold under this contract, must be commenced by
Buyer against Seller within one year after the cause of action
therefore accrues or one year of delivery of the products sold
hereunder, if less.
21. CONFLICTING PROVISIONS OFFERED BY BUYER. Any
terms and conditions of any purchase order or other instrument
issued by the Buyer, in connection with the subject matter of this
document, which are in addition to or inconsistent with the terms
and conditions expressed herein, will not be binding on Seller in
any matter whatsoever unless accepted by Seller in writing.
22. SEVERABILITY. In case any provision of this contract shall
be declared invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way
be affected or impaired.
23. APPLICABLE LAW. This contract shall be governed by, and
construed and enforced in accordance with, the laws of Ohio.
Buyer and Seller specifically agree that any legal action brought
relating to this contract shall be brought and tried exclusively in
the federal district court in Cincinnati, Ohio, or, in the absence of
jurisdiction, the Butler County Court of Common Pleas in
Hamilton, Ohio.
REV. 03/15
Contech - CONDITIONS OF SALE
Quotation Page# 3/3
Quote # QUO-249270-Y7K7F7