ELCO_DemoGarden_PO

• Water Efficiency Grant Type: Water Conservation Implementation Grant
• Contract/PO #: OE PDA 08-114
• Applicant: East Larimer County Water District
• Project Name: Landscape Demonstration Garden
• Title: Purchase Order
• Date: 4/28/2009
• County: Larimer
• Water Efficiency - Doc Type: Purchase Order

Purchase U~•der Terms and Conditions
1. Offer/Acceptance. If this purchase ostler ("PO') refers to your bid or proposal, then this PO is an
ACCEPTANCE of your OFFER TO SELL in accordance with the terms and contlitions of the IFBIRFP, as
stated in your bid. If no bid or proposal is referenced. this PO is an OFFER TO BUY, subject to your
acceptance, which must be demonsValed by either your performance of this PO or by a fomlal
acknowledgment in writing. Any COUNTER-OFFER TO SELL is automatically construed as a
CANCELLATION of this PO unless a change order is issued accepting acounter-offer. In the event vendor
form(s) or part(s) of forms are inclutled in, or as an attachment to, any bid, proposal, offer,
acknowledgment, or otherwise, vendor agrees that, in the event of inconsistencies or contradictions, the
terms and conditions of the solicitation document and this PO shall supersede and control over those
contained in vendor's form(s) regardless of any statement to the contrary in such form(s). Unless the
purchasing agent specifically agrees in writing through overt reference or other express written indication of
assent, terms and conditions on vendor forms regarding choice of law, venue, warranty disGaimer or
exclusion, intlemnifcation or limitation of liability shall be of no effect.
2. Safety Information. All chemicals, equipment and materials Droposed antl/or used in the performance
of this PO must con/ortn to the standards required by the William-Steiger Occupational Safety and Health
Act of 1970. Bidders must furnish all Material Safety Data Sheets (MSDS) for any regulated chemicals.
equipment or hazardous materials at the time o1 delivery.
3. Changes. Vendor agrees to furnish products antl/or services in strict accordance with the specifications,
and at the price set forth for each item. Nothing in this PO may be added to, modified, superseded or
otherwise altered except in writing signed by an aulhorizetl representative of the agency purchasing offce
and acknowledged by vendor. Each shipment received or service pedormed shall be only upon the terms
contained in this PO, notwithstanding any terms wntainetl in any invoice or other act of ventlor other than
acknowledgment of a written change order to this PO.
4. Delivery. Unless otherwise specified in the solicitation or in this PO, delivery shall be FOB
destination. In its acceptance of any quotation offer, the agency is relying on the promised delivery tlate,
installation, or service performance as material and basic to its acceptance. In the event of vendor's
failure to deliver or perform as antl when promised, the agency reserves the right to cancel its order, or
any part thereof, without prejudice to its other rights, antl vendor agrees that the agency may return all
or part of any shipment so made, and may charge vendor with any loss or expense sustained as a
result of such failure to deliver or perform as promised. Time is of the essence.
5. Rights in Data, Documents, Computer Soffware or Other Intellectual Property. Unless otherwise
agreed in writing, any software, research, reports, studies, data, photographs, negatives or other
documents, drawings or materials delivered by vendor in the performance of its obligations under this PO
shall be the exclusive property of the State. The ownership rights described herein shall include, but not be
limited to, the right to copy, publish, display, transfer, prepare derivative works, or otherwise use the works.
6. Quality. The State will be the sole judge in determining "equals' with regard to quality, price and
performance. All products delivered shall be newly manufactured and of the manufacturer's curtest model.
unless otherwise specified. ,
7. Warranties. All provisions and remedies of the Uniform Commercial Code ("UCC") relating to both
implied and expressed warranties are herewith referred to and made a part hereof and are in addition to
any warranties stipulated in the specifications.
e. Inspection antl Acceptance. Final acceptance is dependent upon completion of all applicable
inspection procedures. Should the products or services fail to meet any inspection requirements, the
agency may exercise all of its rights, including those provided in the UCC. The agency reserves the right to
inspect services provided under this PO at all reasonable limes and places. "Services" as usetl in this
clause includes services pedormed or tangible material produced or delivered in the pertormance of
services. If any of the services do not conform with PO requirements, the agency may require vendor to
perform the services again in conformity with PO requirements, with no additional payment. When defects
in the quality or quantity of service cannot be corrected by re-performance, the agency may (i) require
vendor to take necessary action to ensure that the future performance conforms to PO requirements and
(ii) equitably reduce the payment due vendor to reflect [he reduced value of the services performed. These
remedies in no way limit the remedies available to the agency in the termination provisions of th s PO, or
remedies otherwise available at law or in equity.
9. Cash Discount. The cash discount period will start from data of receipt of acceptable invoice, or from
date of receipt of acceptable productsrservices al the specified destination by an authorized agency
representative, whichever is later.
10. Taxes. The State agency, as purchaser, is exempt from all federal excise taxes under Chapter 32 of
the Internal Revenue Code ]NO. 84-730123K] and from all State and local government use taxes (CRS 39-
26-14(a) and 203, as amended]. Tax exempt numbers for the specific agency may be fountl elsewhere in
this PO. Vendor is hereby notifletl that when materials are purchased for the benefit of the State, such
exemptions apply except that in certain political subdivisions (e.g.. City of Denver) vendor may be required
to pay sales or use lazes even though the ultimate product or service is provided to the State. These sales
or use [axes will not be reimbursed by the State.
11. Prompt Payment. State law and regulations provide that vendors will be paitl within 45 days after
receipt of products or services and a cormct notice of amount due, unless otherwise agreed to by contract
or special conditions of the PO. A State liability not paid within 45 days is considered delinquent and.
unless otherwise agreed to, interest on the unpaid balance shall be paid beginning with the 46th day at the
rate of 1 % per month until paid in full. A liability shall not arise if a good faiN dispute exists as to the
agency's obligation to pay all or a portion of the (lability. Vendors shall invoice the agency separately for
interest on delinquent amounts due. The billing shall reference the delinquent payment, the number of days
interest to be paid and the applicable interest mte. [CRS 24-30-202(24), as amended.]
12. Vendor Offset. Pursuant to CRS 24-30-202.4, as amended, the State Controller may withhold payment
for debts owetl to State agencies under Ne vendor offset intercept system for: (a) unpaid child support debt
or child support arrearages; (b) unpaid balances of tax, accrued interest, or other charges specified in
Article 21, Title 39, CRS; (c) unpaid loans due to the Student Loan Division of the Department of Higher
Education; (d) amounts required to be paid [o the unemployment compensation fund; and (e) other unpaid
tlebts, fountl to be owing to the State or its agencies by final agency determination or reduced to jutlgmenL
as certified by the State Controller.
13. Assignment antl Successors; Antitrust Claims. Vendor shall not assign rights or delegate duties
under this PO, or subcontract any part of the performance required ostler this PO. without the express,
written consent of the Slate, which shall not be unreasonably withheld. This PO shall inure to the oenefit of
and be binding upon the parties hereto and their respective successors and assigns. Assignment of
accounts receivable may be made only with written notice furnished to the purchasing agency or institution.
14. Indemnification. In the event any article sold or delivered under this PO is covered by any patent,
copyright, trademark, or application therefor, ventlor will indemnify and hold harmless the State from any
antl all loss, IiaDility, cost, expenses and legal fees incurred on account of any claims, legal actions or
judgments arising out of manufacture, sale or use o/ such article in violation, infringement or the Ilke of
rights under such patent. copyright, trademark or applicetion. If this PO is for services, to the extent
authorized by law, vendor shall Indemnify, save, and hold harmless the State, its employees and agents,
against any and all claims, damages, liability and court awards including costs, expenses, and attorney
fees and related expenses, incurred as a result of any act or omission by vendor. or its employees, agents.
subcontractors or assignees, arising out of or in connection with perormance of services ordered by this
PO.
15. INDEPENDENT CONTRACTOR. VENDOR SHALL PERFORM ITS DUTIES HEREUNDER AS AN
INDEPENDENT CONTRACTOR AND NOT AS AN EMPLOYEE. NEITHER VENDOR NOR ANY AGENT
OR EMPLOYEE OF VENDOR SHALL BE OR SHALL BE DEEMED TO 8E AN AGENT OR EMPLOYEE
OF THE STATE. VENDOR SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND
INCOME TAX WITHHOLDING INCLUDING ALL FEDERAL AND STATE INCOME TAX AND LOCAL
HEAD TAX ON ANV MONIES PAID PURSUANT TO THIS PO. VENDOR ACKNOWLEDGES THAT
Issued by the State Controller's Office
Rule 2-2
VENDOR AND ITS EMPLOYEES ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS
UNLESS VENDOR OR THIRD PARTY PROVIDES SUCH COVERAGE AND THAT THE STATE DOES
NOT PAV FOR OR OTHERWISE PROVIDE SUCH COVERAGE. VENDOR SHALL HAVE NO
AU7HOR12ATION EXPRESS OR IMPLIED TO BIND THE STATE TO ANY AGREEMENT, LIABILITY, OR
UNDERSTANDING, EXCEPT AS EXPRESSLY SET FORTH HEREIN. VENDOR SHALL PROVIDE AND
KEEP IN FORCE, AND SHOW PROOF OF UPON REQUEST, WORKERS' COMPENSATION AND
UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS REQUIRED BY LAW, AND
SHALL BE SOLELY RESPONSIBLE FOR ITS ACTS AND THOSE OF ITS EMPLOYEES, AND AGENTS.
16. Communication. All cemmunications, including reports, nohces, and advice of any nature, concerning
administration of this PO, prepared by vendor for the agency's use, must be furnished solely to the
purchasing agent within the agency purchasing office.
17. Compliance with Laws. Vendor agrees to comply with all applicable federal antl State laws,
regulatons and policies. as amended, including those regarding unfair labor practices, anti-kick-back and
collusion.
16. Americans with Disabilities Act (ADA) Requirements. If this solicitation contemplates the provision
of services to the public, vendor shall, in addition to any other requirements under Title 11 of the ADA,
comply with the Title 11 requirements of the ADA regarding the accessibility of State services and
programs, as an explicit requirement Vendor assures that, al all limes during the pertormance of any
resulting PO, no qualified individual with a disability shall, by reason of that disability, De excluded from
panicipalion in or be denied benefits of, services, programs, or activities penormed by vendor for the
benefit of the Slate.
19. Insurance. Ventlor shaft obtain, and maintain at all limes during the term of this PO, insurance as
specified in the solicitation or order, and shall provide proof of such coverage.
20. Termination For DefaultlCause. a. Except as otherwise agreed, the UCC shall govern in the case of
goods. In the case of services, if vendor refuses or fails to timely perform any of the provisions of this PO,
with such diligence as will ensure its completion within the lime specifed in this PO, the purchasing agent
may notlfy vendor in writing of non-performance, and if not promptly corrected within the time specifed,
such agent may terminate vendor's right to proceed with the PO or such part thereof as to which there has
been delay or a failure to properly perform. Vendor shall continue performance of the PO to the extent it is
not terminated and shall be liable for excess costs incurted in procuring similar goods or services
elsewhere. Payment for completed services perormed antl accepted shall be at the PO price.
b. In the case of remedies exercised under this paragraph for services, or analogous remedies exercised
under the UCC for in goods, the purUasing agency may withhold amounts tlue to vendor as Ne
purchasing agent deems necessary to reimburse the purchasing agency for the excess costs incurred in
curing, completing or procuring similar goods and services.
c. In the case of either goods or services, vendor shall not be in default by reason of any failure in
performance of this PO in accordance with its terms, if such failure arises out of acts of God; acts of the
public enemy; acts of the State or any governmental entity in Its sovereign or contractual capacity: fires;
floods: epidemics; quarantine restrictions: strikes or other labor disputes: freight embargoes; or unusually
severe weather.
d. If after rejection, revocation, or other lerminatlon of ventlor's right to proceed under the provisions of the
UCC or Nis clause, it is determined for any reason that vendor was not in default under the provisions of
this clause, or that the delay was excusable, the rights and obligations of the pestles shall be the same as if
the notice of termination had been issued pursuant to the termination for convenience clause.
21. Termination For Convenience. a. If not accepted by written acknowledgment, this PO may be
canceled by written or oral notice to vendor prior to shipment of goods or beginning of pertormance of
services.
b. Unless otherwise agreed in writing, in addition to the rights and remedies governing goods in the UCC,
the purchasing agent may, when the interests of the purchasing agency so require, terminate this PO in
whole or in part for the convenience o(!he agency or institution. The purchasing agent shall give written
notice of the termination to vendor specifying the part of the PO terminated and when termination becomes
effective. Upon receipt of notice of tertninalion, vendor shall incur no further obligations except to the extent
necessary to mitigate costs of performance. In the case of services or specialty manufactured goods, the
State shall pay reasonable settlement expenses, the PO price or mte for supplies and services delivered
and accepted, the reasonable costs of pertormance on unaccepted supplies and services, and a
reasonable prof( for that unaccepted work, in accordance with the cost principles promulgated in
accordance with CRS 24-107-101, as amended. In the case of existing goods, the Slate shall pay
reasonable settlement expenses, the PO price for goods delivered and accepted, reasonable costs
insured in preparatlon for delivery of the undelivered goods, and a reasonable profit for that preparatory
work. The amount of the termination liability under Nis paragraph shall not exceed the amount of the PO
puce plus a reasonahle cost for settlement expenses. Vendor agrees to submit a termination proposal as
well as reasonable supposing documentation, cost and pricing data, and a certification as required CRS
24-106-101, as amended, upon request of the purchasing agent.
22. Purchase Order Approval. This PO shall not be valid unless it is executed by the purchasing agent for
the Durchasing State agency or institution. The Slate shall have no responsibility or liability for products or
services delivered or pedormed prior to proper execution hereof.
23. Funtl Availability; Fetleral Funds Contingency. Financial obligations of the State payable after the
urrent fiscal year are contingent upon funds for that purpose being appropriated. budgeted and otherwise
made available. IF this PO is funded in whole or in part with federal funds, this PO is subject to and
contingent upon the continuing availability of federal funds for the purposes hereof. If this PO contemplates
the purchase of goods to be delivered in a single installment, the State represents that it has set aside
sufficient funds to make payment under This PO in accordance with its terms.
24. Choice of Law. This PO is made in. and the laws of the State of Colorado shall govern, in connection
wiN the formation, performance and the legal enforcement of, this PO. Unless otherwise specified in the
solicitation or this order, venue for any judicial action arising out of or in connection with this PO shall be in
Denver, Colorado. Vendor shall exhaust administrative remedies in CRS 24-109-106, as amended, prior to
commencing any judicial action against the State.
25. Uniform Commercial Code. All references in Nis PO to the UCC shall mean the UCC as adoptetl by
the Stale of Colorado at Title 4, Colorado Revised Statutes, as amended.
26. Nondiscrimination. Vendor agrees to comply with the letter antl spirit of all applicable State and
federal laws respecting discrimination and unfair employment practices.
27. [Not applicable to Intergovernmental POs] ILLEGAL ALIENS -PUBLIC CONTRACTS FOR
SERVICES AND RESTRICTIONS ON PUBLIC BENEFITS. a. Ventlor certifies That it shall comply
with the provisions of CRS 8-17.5-101 el seq. Ventlor shall not knowingly engage an Illegal alien to
perform work under this PO or enter into a contract or PO with a subcontractor that tails to cesify to vendor
that the subcontractor shall not knowingly engage an illegal alien to cerform work under th's PO. Contractor
represents, warrants, and agrees that it (i) has verified that it does not engage any Illegal aliens, through
panicipalion in the federal Basic Pilot Employment Verification Program antl (ii) otherwise will comply with
the requirements of CRS 6-17.5-102(2)(b). Vendor shall comply wiN all reasonable requests made in the
course of an investigation under CRS 8-17.5-102. Failure to comply with any requirement of this provision
or CRS 8-17.5-101 et seq., shall be cause for termination for breach and vendor shall be liable for actual
and consequential damages.
b. Ventlor, if a natural person eighteen (18) years of age or older, hereby swears or affirms under penalty of
perjury that he or she (i) is a citizen or otherwise lawfully present in the United States pursuant to federal
law, (ii) shall comply with the provisions of CRS 24-76.5-101 et seq.. and (iii) shall produce one form of
identification required by CRS 24-76.5-103 prior to the effective date of this PO.
Date Issued: 7/1/74
Date Revised: 10/25/06