TERMS AND CONDITIONS
1. ACCEPTANCE - ENTIRE AGREEMENT – Your acceptance of this offer to purchase by acknowledgment, shipment or service rendered, shall be unqualified, unconditional and subject to and expressly limited to the Terms and Conditions stated herein. We shall not be bound by any additional provisions or by provisions at variance that may appear in any quotation, previous offer, acknowledgment, invoice or other communication from you to us unless such provision is expressly agreed to in writing and signed by an authorized Buyer from MSD. Our acceptance of, or payment for, material shipped or services provided, shall constitute acceptance of same subject to the provisions hereof only, and shall not constitute acceptance of any counter¬-proposal submitted by you not otherwise accepted in writing and signed by an authorized Buyer from MSD. Upon acceptance, the terms of this agreement shall constitute the entire agreement between us and may not be modified or rescinded except in writing and signed by an authorized Buyer from MSD. Notwithstanding the foregoing, if a valid Master Agreement or Contract exists between us covering the terms ordered hereby, the Terms and Conditions of such Master Agreement or Contract shall govern. Unless otherwise stated, there are no other additions to this Contract with the exception of those additions referenced in Paragraph 11 of the Instructions to Bid.
2. ASSIGNMENT – This Contract shall not be assigned, in whole or in part, without the prior written consent of MSD’s Legal Counsel, and shall be binding upon the successors and assigns of the parties hereto.
3. PREVAILING LAW – The construction, interpretation, and performance of this Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Kentucky with venue in the relevant court in Jefferson County.
4. COMPLIANCE WITH LAWS – The Seller warrants that, where applicable, the materials, services, and articles of this Agreement shall be produced and performed in compliance with:
a. The Fair Labor Standards Act of 1938, as amended, and of the regulations and orders of the U. S. Department of Labor as well as Kentucky wage and hour laws and regulations as set forth in Kentucky Revised Statute Chapter 337) and Kentucky Administrative Regulations Title 803.
b. Federal and State Occupational Safety and Health Law.
c. All relevant Federal and State Affirmative Action statutes and regulations up to and including Executive Order 12086, Executive Order 11246 and CFR, Title 41, 60-1, 60-2, 60-250, 60-741.
d. All Federal, State and Local environmental laws and regulations.
5. WARRANTY AS TO QUALITY – The Seller expressly warrants all items on this Agreement to be free from defects, whether patent or latent, of material and workmanship. All articles will be subject to MSD's inspection and rejection at the place of delivery, and no payment shall be due until MSD has inspected the goods or has had a reasonable opportunity to do so. Neither risk of loss nor title shall pass from the Seller to MSD until inspection is made as specified in this paragraph. The Seller further expressly warrants all items and services covered by this Contract will conform to drawings, specifications or samples; will be merchantable within the meaning of KRS 355.2-314 in effect in the Commonwealth of Kentucky on the date of execution of this Agreement; and will be fit and sufficient for the use intended. Where any tender or delivery of the goods is rejected because of nonconformity and the time for performance has expired, no replacement of defective goods shall be made without a formal replacement order signed by MSD. The Seller further warrants that the Seller has title to the goods supplied in that the goods are free and clear of all liens, encumbrances, and security interests.
6. WARRANTY AS TO PATENTS – The Seller herein guarantees that the sale or use of its products will not infringe any United States or foreign patents; covenants that it will, at its own expense, defend every suit or action which shall be brought against the Purchaser (Metropolitan Sewer District of Louisville, Kentucky) or those settling or using any product of the Purchaser for any alleged infringement or claim or infringement of any such patent by reason of the sale or use of said Seller's product; and agrees that it will pay all costs, damages, expenses, counsel fees, and such other charges as may be sustained by Purchaser as a result of any such infringement. Articles manufactured in accordance with Purchaser's design are not considered as the Seller's products under this condition.
7. VARIATION IN QUANTITY – No variation in the quantity of any item or service called for by this Agreement will be accepted unless such variance has been approved by written Change Order to the Purchase Order. Any unauthorized over-shipment may be returned to the Seller at the Seller's expense.
8. TERMINATION OF CONTRACT – This Contract may be terminated in whole or in part at any time by MSD with or without cause by giving at least thirty-(30) days advance written notice to the Consultant. In such event, MSD will be obligated to pay for the services rendered and materials received, meeting Contract specifications, prior to the effective date of termination, but shall have no further obligation under this Contract.
9. TERMINATION WITH CAUSE – MSD reserves the right to terminate this Contract partially or entirely, in the event materials or work specified fail to conform to the requirements of this bid and any Contract awarded as a result of this bid.
10. TERMINATION FOR CONVENIENCE – MSD reserves the right to terminate this Contract partially or entirely, without cause, and to make changes to the specifications or requirements. Upon MSD request, the Consultant shall immediately suspend work. Any losses or damages resulting from such cancellations, or suspensions, shall be equitably adjusted between MSD and the Consultant and this Contract modified accordingly.
11. USE OF INFORMATION – As a condition of this Agreement, and in consideration for the price included herein, the Seller agrees to protect and return, upon MSD's request, all tools, drawings and other design or manufacturing information furnished to it by MSD, and will not disclose such information to others or use such information for any purposes whatsoever other than for the fulfillment of this and subsequent agreements from MSD. Unless otherwise agreed in writing, all patterns, molds, tools or dyes ordered are our property and are to be maintained by the Seller in good working order, and are to be used only in our products, and are to be delivered to us in good working condition upon demand and completion of any orders requiring the use of these tools. MSD agrees not to copy or disclose to others any proprietary information provided by the Seller.
12. INSURANCE – If this Agreement covers the performance of labor or services anywhere on MSD property, the Seller shall procure and maintain, and shall require each of his Subcontractors to procure and maintain until the completion of the work under this Agreement, insurance of the types and in the amounts specified below unless agreed to by MSD to require more or less coverage, depending on the scope of work to be performed. It shall also be the responsibility of the Seller to ensure his Subcontractor's compliance with all of the insurance requirements contained herein. The types and amounts of insurance required are as follows (unless otherwise approved by MSD):
a. Workers' Compensation coverage in accordance with the Commonwealth of Kentucky Statutes governing such insurance. Employer's Liability in a minimum amount of $100,000 for each accident, $100,000 disease-each employee and $500,000 Disease-Policy Limit.
b. General Liability should include Contractual Liability and Completed Operations coverage, $1,000,000 for each occurrence and $2,000,000 for General Aggregate. Additionally, for property damage, the limit of $1,000,000 per occurrence will apply. If your product or service is designed, intended and used underground in MSD’s sewer system, you shall remove the Explosion, Collapse and Underground (XCU) General Liability exclusion and provide the Broad Form property damage coverage endorsement.
c. Automobile Liability should have limits of not less than $1,000,000 Combined Single Limit or Bodily Injury of $1,000,000 per person, $2,000,000 per accident and $1,000,000 property damage covering any motor vehicle owned, hired, or non-owned by the Seller.
d. Excess Liability or Umbrella insurance providing additional protection with the limit of $2,000,000 for each occurrence and General Aggregate of $2,000,000.
All policies shall provide that MSD will be notified of cancellation, except for cancellation for non-payment of premium, or restrictive amendments at least thirty
(30) days prior to the effective date of such cancellation or amendment. Ten (10) days prior notice of cancellation for non-payment of premium will be required. Certificates of Insurance stating the limits of liability and expiration date shall be filed in triplicate with MSD before operations are begun. Such certificates shall name the types of policies provided.
You must include the following as Additional Insured and typed on each Certificate of Insurance:
Louisville and Jefferson County Metropolitan Sewer District
700 West Liberty Street
Louisville, KY 40203-1911
INDEMNIFICATION
The Consultant shall indemnify and defend MSD from and against any claims, demands, actions, liabilities, losses, costs, and expenses, including but not limited to reasonable attorney fees asserted by third parties (“Claims”) which Claims are caused by or arise from injuries or damages sustained by such third parties resulting or arising from any negligent act or omission or intentionally wrongful act of the Consultant or any of its officers, agents, employees, and/or representatives in relation to professional services provided to MSD by the Consultant under this Agreement. This indemnity provision shall not apply to Claims for which payment is available under the Consultant’s professional liability insurance policies.
13. SAFETY – The Seller agrees that, while on MSD work sites, all supervisors and workers utilized in the fulfillment of the terms of this Agreement will comply with all applicable MSD Health and Safety Rules and Regulations, copies of which are available in the Safety and Security Department, at 700 West Liberty Street, Louisville, Kentucky 40203. This includes the use of appropriate personal protective equipment, strict observance of applicable industry health and safety practices, and the use of safe work permits, where required, shall be the responsibility of the awarded Contractor. The Seller also agrees to observe all applicable regulations as prescribed by the Kentucky Labor Cabinet Division of Occupational Safety and Health (KYOSH) while performing work under this Agreement. The Winning Contractor, their staff, and Subcontractors working on the contract will be required to attend a one hour safety briefing with MSD’s Safety and Security Department prior to commencing any work.
NOTE: The Seller certifies that any equipment with required safety features sold under this Agreement and with proper customer use, meets current KYOSH requirements.
14. MSD AUDIT PROVISIONS – The Contractor records pertaining to services performed shall be available to MSD or MSD’s authorized representative upon request. The Contractor records subject to audit shall include but not be limited to records which may have a bearing on matters of interest to MSD in connection with the Contractor’s work for MSD and shall be open to inspection and subject to audit and/or reproduction by MSD’s agent or its authorized representative to the extent necessary to adequately permit evaluation and verification of (a) the Contractor’s compliance with contract requirements, (b) compliance with MSD’s business ethics policies, (c) compliance with provisions for computing time and materials invoices, and (d) any and all other matters of concern to MSD. MSD or its designee shall be entitled to audit all of the Contractor’s records, and shall be allowed to interview any of the Contractor’s employees, pursuant to the provisions of this article throughout the term of this contract and for a period of 5 (five) years after final payment. Such audits may require inspections and photo copying of selected documents from time to time at reasonable times and places. The Contractor acknowledges that MSD has the right to review or audit any calculation and its documentation utilized to determine MSD invoices for time and materials. The Contractor further acknowledges that MSD, based upon results from an audit or review, has the right to make adjustments, both up or down, in the charges, on a retroactive basis, if it is discovered that cost information or the classification of cost information are either inaccurate, not current or incomplete or if such information is not prepared in accordance with MSD policy.
15. RETENTION OF RECORDS – The Contractor and any Subconsultants shall maintain all books, documents, papers, accounting records and other evidence pertaining to costs incurred under this Contract and shall make such materials available for inspection by MSD at reasonable times during the period of this Contract and for a period of 5 (five) years after the date of final payment to the Contractor. Copies of such data shall be furnished to MSD upon request. The Contractor is entitled to reasonable reimbursement for the cost of furnishing such copies.
16. CONTRACTOR EQUIPMENT ON MSD PROPERTY – Absent negligence on behalf of MSD, the Contractor agrees to indemnify and hold harmless MSD, its officers, directors, and employees from any claims, losses, damages, expenses, or liabilities of any kind or nature whatsoever, arising or alleged to have arisen in part, out of or in consequence of the work performed under this Agreement, in which the Contractors vehicles or equipment may incur or sustain by reason of an act or omission of the Contractor or any employee of the Contractor, including, but not limited to, property damage, larceny and dishonesty, except from and against all losses, damages, expense, etc., as set forth hereinabove. The Contractor shall bear any expense of defending any action which may be brought against MSD, its officers, directors, and employees, alone or along with the Contractor or others, and upon request of MSD shall assume the defense of such action or any proceeding, and shall pay any judgment or claim established against or cost or expense incurred by MSD, its officers, directors and employees arising from any causes hereinabove set forth.
In compliance with MSD’s Storm Water Pollution Prevention Program (SWPPP) and Nine Minimum Control (NMC) program, the Contractor hereby agrees to provide proper maintenance of any vehicles or equipment, and control of any liquids or solids associated with vehicles or equipment which may or may not contain hazardous material, to prevent their entry into any MSD stormwater or treatment facility collection system, whether on MSD property or not. Any vehicles or equipment found to be leaking liquids or solid material while either in operation or parked on any MSD property or job site shall be required to be removed from the property and any spillage cleaned up by the Contractor at no expense to MSD. If for expedience sake, temporary storage of vehicles or equipment is required on MSD property or an MSD job site, the Contractor is responsible for the placement and maintenance of pads, berms, drip pans, or other device to control and properly dispose of any liquids or solids which may leak from vehicles or equipment.
