Ripon City Council
Special Meeting Minutes
FRIDAY, APRIL 26, 2024
SPECIAL MEETING
12:00 PM
The Special Meeting was called to order by Mayor Zuber at 12:00 PM.
ROLL CALL:
Attendee Name Title Status Arrived
Leo Zuber Mayor Present
Daniel de Graaf Vice Mayor Absent
Gary Barton Council Member Present
Dean Uecker Council Member Present
Michael Restuccia Council Member Present
OTHERS PRESENT: City Administrator Kevin Werner, City Attorney Tom Terpstra via phone, Director of Public Works James Pease, City Clerk Lisa Roos, Deputy City Clerk Jane Kilgore, Information Systems Technician Alex Arias, Michael Musca, Terrence Musca.
PUBLIC DISCUSSION:
No one from the public wished to speak at this time.
ADDITION OF EMERGENCY ITEM:
City Attorney Terpstra requested that a resolution authorizing the City Administrator to select and thereafter enter into contracts with qualified contractors as needed to alleviate the emergency conditions of the Stanislaus River Pedestrian Bridge be added to the agenda as an Emergency Item.
Motion to add an Emergency Item to the Agenda as Item 1A.
RESULT: ADOPTED [UNANIMOUS]
MOVER: Michael Restuccia, Council Member
SECONDER: Gary Barton, Council Member
AYES: Zuber, Barton, Uecker, Restuccia
ABSENT: de Graaf
City Council Page 2 April 26, 2024
1. TOPICS OF DISCUSSION
A. RESOLUTION NO. 24-9
A RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF RIPON
AUTHORIZING THE CITY
ADMINISTRATOR TO SELECT AND
THEREAFTER ENTER INTO
CONTRACT(S) WITH QUALIFIED
CONTRACTORS AS NEEDED TO
ALLEVIATE THE EMERGENCY
CONDITIONS OF THE STANISLAUS
RIVER PEDESTRIAN BRIDGE
Adopt the resolution authorizing the City
Administrator to select and thereafter enter
into contract(s) with qualified contractors
as needed to alleviate the emergency
conditions of the Stanislaus River
Pedestrian Bridge.
City Attorney Terpstra said that in October 2023 the Stanislaus River Pedestrian Bridge sustained significant structural damage from a fallen tree. He said despite efforts to seal off damaged portions of the Bridge, it has become a potentially attractive nuisance and the risk of further damage and/or personal injury constitutes emergency circumstances. Terpstra said section 21068 of the California Public Contracts Code permits the City Council to adopt a Resolution authorizing the City to undertake the necessary repairs without public bidding.
City Administrator Werner said it is unusual for an item like this to go out to bid because the bridge segment can only be built by one supplier and the City is working with Contech. He said the other part of the project is setting the bridge piece in place. He said it is important to allow the contractors to have the opportunity to determine the best means and method of installation. Werner said this will be the most expedient and cost efficient way to repair the bridge.
Council Member Restuccia asked if staff has a contractor in mind. Werner said staff is working with different contractors right now.
Mayor Zuber said he understands this to mean that the City will be overseeing the project as opposed to contracting with a firm to manage the repair of the bridge. Werner confirmed.
Council Member Uecker asked if there is any potential use for the bridge. Public Works Director Pease clarified it is only a piece of the bridge that is going to be replaced.
Vice Mayor de Graaf joined the meeting.
Council Member Barton confirmed that Contech will be building the bridge segment and the entity who will place the bridge segment will be a different contractor. Werner confirmed.
Michael Musca asked for clarification regarding the funding source of the $107,000 and questioned if the insurance provider would pay that full amount. Public Works Director Pease said there is a $100,000 deductible for this claim and everything after that will be covered by the City’s insurance provider.
City Council Page 3 April 26, 2024
Werner said staff is still calculating the total cost of the project because of the environmental consulting and work that has to be done and the cost of installation. He said staff will bring this back to the Council and the public to keep them informed of the process and cost.
Werner said it will be up to the Council to determine how they want to fund the repair.
Uecker asked where Ripon ends and Salida begins. Werner said that Ripon is 100% responsible for the bridge per the Memorandum of Understanding, but Stanislaus County has reached out and said they would like to be involved in repairing the bridge.
Council Member Barton asked Pease if staff is satisfied that this is the only segment that sustained damaged and needs to be replaced. Pease confirmed.
Motion to adopt Resolution 24-9 authorizing the City Administrator to select and thereafter enter into contract(s) with qualified contractors as needed to alleviate the emergency conditions of the Stanislaus River Pedestrian Bridge.
RESULT: ADOPTED [UNANIMOUS]
MOVER: Gary Barton, Council Member
SECONDER: Michael Restuccia, Council Member
AYES: Zuber, de Graaf, Barton, Uecker, Restuccia
B. STANISLAUS RIVER BIKE/PEDESTRIAN BRIDGE
Discussion/Action Approve the purchase of a replacement pedestrian truss bridge segment from
Contech Engineered Solutions LLC in the
amount of $107,565 (funding source:
Insurance Provider).
Public Works Director Pease said this is a quote from the original builder of the bridge, Contech, to replace the damaged bridge section. He said the lead time is October at this point but Contech said they would try to fit this in between larger projects.
Council Member Uecker asked if there is anyone in Ripon who can manufacture the bridge segment. Pease said not to his knowledge and in discussions with the structural engineer, it made sense to go to the original manufacturer of the bridge to obtain a replacement.
Pease said the next step is to complete the environmental process to discuss what needs to be done to remove the damaged section and install the new section and eliminate any possible future threats from trees coming down on other segments of the bridge.
City Council Page 4 April 26, 2024
Motion to approve the purchase of a replacement pedestrian truss bridge segment from Contech Engineered Solutions LLC in the amount of $107,565.
RESULT: ADOPTED [UNANIMOUS]
MOVER: Michael Restuccia, Council Member
SECONDER: Dean Uecker, Council Member
AYES: Zuber, de Graaf, Barton, Uecker, Restuccia
2. CLOSED SESSION
PUBLIC DISCUSSION ON CLOSED SESSION MATTERS: No one from the public wished to speak at this time.
ROLL CALL: Council Members Michael Restuccia, Dean Uecker, Gary Barton, Vice Mayor Daniel de Graaf, Mayor Leo Zuber.
OTHERS PRESENT: City Administrator Kevin Werner, City Attorney Tom Terpstra via phone, City Clerk Lisa Roos.
IN THE MATTER OF:
(1) Conference with Labor Negotiators
Labor negotiations pursuant to Section 54957.6 of the California Government Code. (a) Police Officers Association
(b) Ripon Sergeants Association
(c) Public Works Employees
(d) Unrepresented Employees
Return to open session.
City Attorney Terpstra said Council met in closed session to receive an update on labor negotiations, staff was given direction and no reportable action was taken.
3. ADJOURNMENT
There being no further business, the meeting was adjourned at 1:19 PM. (Signed) Leo Zuber
Mayor
ATTEST:
(Signed) Lisa Roos
City Clerk
City Council
259 N. Wilma Avenue
Ripon, CA 95366
MEMO
To: Honorable City Council
From: James Pease, Public Works Director
Date: 04/26/2024
Subject: Stanislaus River Pedestrian Bridge.
RECOMMENDED ACTION:
Adopt the resolution authorizing the City Administrator to select and thereafter enter into contract(s) with qualified contractors as needed to alleviate the emergency conditions of the Stanislaus River Pedestrian Bridge.
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RESOLUTION NO. 24-9
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
RIPON AUTHORIZING THE CITY ADMINISTRATOR TO
SELECT AND THEREAFTER ENTER INTO CONTRACT(S)
WITH QUALIFIED CONTRACTORS AS NEEDED TO
ALLEVIATE THE EMERGENCY CONDITIONS OF THE
STANISLAUS RIVER PEDESTRIAN BRIDGE
WHEREAS, on or about October 22, 2023 the Stanislaus River Pedestrian Bridge (the “Bridge”) sustained significant structural damage from a fallen tree; and WHEREAS, despite efforts to seal off damaged portions of the Bridge, the Bridge has become a potentially attractive nuisance; and
WHEREAS, the risk of further damage and/or personal injury constitutes emergency circumstances, and necessitates prompt action; and
WHEREAS, section 21068 of the California Public Contracts Code permits the City Council to adopt this Resolution authorizing the City Administrator and/or his designee to undertake the necessary repairs without public bidding.
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Ripon adopts this Resolution by a unanimous or 4/5 vote, authorizing the City Administrator to select and thereafter enter into contract(s) with qualified contractors as needed to alleviate the emergency conditions described herein, as well as such other agreements as may be necessary to carry out the intent of this Resolution.
PASSED AND ADOPTED at a special meeting of the City Council of the City of Ripon this 26th day of April, 2024, by the following vote:
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RESULT: ADOPTED [UNANIMOUS]
MOVER: Gary Barton, Council Member
SECONDER:Michael Restuccia, Council Member
AYES: Zuber, de Graaf, Barton, Uecker, Restuccia
THE CITY OF RIPON,
A Municipal Corporation
By ________________________________
LEO ZUBER, Mayor
ATTEST:
By: ___________________________
LISA ROOS, City Clerk
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City Council
259 N. Wilma Avenue
Ripon, CA 95366
MEMO
To: Honorable City Council
From: James Pease, Public Works Director
Date: 04/26/2024
Subject: Stanislaus River Bike/Pedestrian Bridge
RECOMMENDED ACTION:
Approve the purchase of a replacement pedestrian truss bridge segment from Contech Engineered Solutions LLC in the amount of $107,565 (funding source: Insurance Provider).
BACKGROUND:
On October 22, 2023, a large tree located on the Ripon side of the Stanislaus River fell onto a segment of the Stanislaus River Bike/Pedestrian Bridge causing significant damage. The tree was removed immediately to relieve the weight and a structural engineer was contracted to perform an assessment. According to the analysis performed by the structural engineer, the bridge in its current condition must remain closed for the safety of the public due to the risk of failure.
DISCUSSION/ANALYSIS:
City staff, the consulted structural engineer and multiple contractors have evaluated several different repair options including temporary shoring to provide a temporary opening, permanent in place restoration through the use of heat treatment and added structural reinforcement. After this evaluation process the final recommendation from the structural engineer is to replace the damaged bridge segment.
The attached quotation is from the original bridge manufacturer Contech Engineered Solutions LLC (Contech) and it includes a painted replacement bridge segment delivered to the City of Ripon. There is an 8 to 10 week lead time on the final submittal package from Contech and the current production completion estimate is November 2024.
The next step will include a contract to perform the necessary clearing, bridge segment removal/installation, concrete deck placement and tree clearing and removal to eliminate future hazards concerning the bridge. Staff continues to work with the Army Corps of Engineers and
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anticipates all environmental and procedural measures to be resolved by the estimated delivery date.
FISCAL IMPACT:
The City is processing all associated expenses necessary for replacement of the bridge segment through its insurance provider. The attached quotation from Contech in the amount of $107,565 doesn’t include tax although tax will be included on the final invoice.
Attachments:
1. Stanislaus River Bike Path Bridge Span Replacement - City of Ripon
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Packet Pg. 9
Item # Description Pieces Quantity Extended Unit
Price
Unit Unit Total
Pedestrian Truss Bridge - Connector - Half Through H Section - Parallel Chords - Pratt Diagonals
Length: 62.65 ft. (End to End of Truss)
Width: 8 ft. (Between Inside Face of Top Chords)
Design Code: AASHTO LRFD Guide Specifications for Design of Pedestrian Bridges 9th Edition
Design Vehicle: H5
Live Load: 90 psf.
Number of Pieces: 1
Finish: A500 (Painted) 2 coats SP6
Bridge Decking: G-90 deck forms are shop-installed ready to receive a field-placed reinforced concrete deck by others
Railing Type: Horizontal HSS1x1x1/8 Safety Rails with 4 inch maximum openings
Railing Height: 41.75 inches
Included Options: Pipe1-1/4STD Pipe Hand Rail, Cover Plate Bearings: Contech Designed Bearings are included: PTFE/SS Preliminary Superstructure Weight: 12,470 lbs
Shop drawings will be provided, signed and sealed by a Professional Engineer registered in the State of CA
Special Considerations:
- Top of deck to low steel dimension: 26.5 "
- (2) 5' Level Landings
- Shipped in (1) Piece (offloading and installation by others) - Contech has been experiencing scarcity, fluctuating raw material production schedules and delays in procurement of structural steel and bridge decking. Fabrication and delivery lead times stated herein are subject to material availability at the time we receive approval to fabricate.
1.00 1.00 $107,565.00 EA $107,565.00
Total $107,565.00
(Tax not included) Net Total $107,565.00
Date 4/3/2024 Account Name City of Ripon Reply-To
Quote # QUO-645850-R0D7G3 Contact Name City of Ripon Contech Rep. Mandy Haddock Phone Address 5670 Greenwood Plaza Blvd. #530,
Greenwood Village, CO, 80111
Project Name Stanislaus River Bike
Path Approach
Replacement
Fax Phone 303-241-8154
Project # 795331 Email [email protected] Fax
Project
City/State
Ripon, CA Email [email protected]
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.Allowable unloading time for delivery trucks is two (2) hours. Demurrage charges of $100.00 per hour thereafter will be added.
2.Design submittal drawings will be provided, signed and sealed by a Professional Engineer licensed to practice in the State where the project is located.
3.In addition to any other procedures outlined or remedies provided, at the time of order, Contech will request a desired delivery date for the quoted materials from the purchasing customer. After drawing approval and prior to manufacturing Contech may again confirm the requested delivery date with the purchasing customer. If purchasing customer cannot take delivery of finished materials within 30 days of requested date, and after Contech has manufactured the product(s), Contech will invoice for the total amount of the order with payment due within 30 days. Additionally, Contech may also assess fees in the amount of 5% per month of the selling price of the stored materials that are not shipped within 30 days after the requested delivery date for storage and handling.
4.LRFD Guide Specification for the Design of Pedestrian Bridges - Item 4.2 - Fracture: Fracture Critical Member designation shall be in accordance with Provision 12.3.2 of AASHTO/AWS D1.5M/D1.5:2015 which requires each Fracture Critical Member (FCM) to be individually designated by the Engineer prior to bidding. In the absence of such designation, the Fracture requirements of Item 4.2 shall be deemed to have been waived.
Quotation Page# 1/3
Quote # QUO-645850-R0D7G3
1.B.a
Packet Pg. 10
Attachment: Stanislaus River Bike Path Bridge Span Replacement - City of Ripon (4226 : Stanislaus River Bike/Pedestrian Bridge) Standard Notes
5.Preliminary Assembled ship weight: Approximately +/- (See Above) lbs. subject to final design. Contech will not be liable for any additional construction or installation costs incurred related to a change from a preliminary bid design weight to a final design, regardless of the reason for the change.
6.Prices are f.o.b. origin with freight allowed to the jobsite with unloading by others at a truck accessible location.
7.The estimated lead time for the submittal package is 8-10 weeks from the receipt of a signed purchase document and receipt of the required design and project information. Submittal lead times are subject to adjustment at time of order based upon current Engineering backlog. Approval review process is in addition to stated timeframes. Due to fluctuations in backlog which occur between the date of this quotation and approval of submittals, material availability, and other supply chain issues, fabrication lead time will be communicated upon receipt of approved submittals.
8.The material included in this quotation is to be designed and manufactured exclusively for this project, is not subject to cancellation and cannot be returned to stock. See Section 16 of the Contech COS.
9.This quotation expires 30 days from date shown.
10.This quote is based on live off loading ONLY and is the responsibility of others. The loads will be delivered as close to the project location as trucks can reasonably access and be driven under their own power without specialized equipment. Oversized loads warrant additional consideration and providing suitable access shall be the responsibility of the contractor/customer. The driver(s) will leave hard surface public roads only at their discretion but is not obligated to do so. If driver agrees to access a site under any other conditions, customer may be subject to additional costs. Due to curfews and other travel time restrictions on over dimensional loads, the customer shall be responsible for additional costs associated with weekend, holiday or Monday delivery requests. Cancellation of scheduled delivery loads requiring permits within 48hrs may result in additional permits and will be the responsibility of the purchaser. Specialized haulers and or equipment are utilized in the shipping of bridge components (ie ³trailer rental´ costs incurred by CONTECH due
to cancellation and or postponement of the delivery of bridge components will be the responsibility of the purchaser. Staging/Jockeying of trailers can be provided upon request for an additional fee.
Scope Of Work
Continental Pedestrian
Truss bridge pricing includes the steel truss bridge manufactured in sections sized at the discretion of Contech to facilitate optimum shipments. Sections may require final assembly at the jobsite by others using fasteners supplied by Contech.
The following work is not a part of this offer and is to be performed by others at no cost to Contech:
1. All construction surveying, including field measurement and verification of abutments and anchor bolt placement.
2. Design of the bridge foundations unless otherwise stated herein.
3. Excavation and construction of the bridge foundations.
4. Anchor bolt design, supply, installation or templates.
5. Erection and installation of the bridge structure(s).
6. Touch up painting of any and all surfaces damaged during handling, loading, transport, unloading, rigging, fit up or installation. Touch up paint guidelines are available from Contech.
7. Supply and installation of any expansion joint materials required by the contract.
8. Supply and installation of concrete and reinforcing for bridge deck slab or abutments.
9. Any and all costs associated with special inspection or testing by an independent agency.
10. Bridge approach railing or wing wall rails unless specifically included elsewhere on this proposal.
11. All other associated or appurtenant items not specifically referenced and included elsewhere in this proposal.
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 Mandy Haddock
Company (O) 303-241-8154
By (F)
Title (Cell)
Date Title
Quotation Page# 2/3
Quote # QUO-645850-R0D7G3
1.B.a
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Attachment: Stanislaus River Bike Path Bridge Span Replacement - City of Ripon (4226 : Stanislaus River Bike/Pedestrian Bridge)
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-645850-R0D7G3
1.B.a
Packet Pg. 12
Attachment: Stanislaus River Bike Path Bridge Span Replacement - City of Ripon (4226 : Stanislaus River Bike/Pedestrian Bridge)