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HomeMy WebLinkAboutLetter from County Counsel 09.09.08 - Western Bus Contract �13TIIr OFFICE OF tCOUNTV COUNSEL ° ,V 1 O ° �°a r, ° COUNTY OF BUTTE ° ° 25 COUNTY CENTER DRIVE,SUITE 210 ° - ' � ° OROVILLE,CALIFORNIA 95965-3380 ° ° PI-IONS(530)538-7621 (j1%4 FAX(530)538-6891 ASSISTANT COUNTY COUNSEL ELIZABETH WGIE BRUCE S. ALPERT CHIEF DEPUTY COUNTY COUNSEL COUNTY COUNSEL FELIX WANNENMACHER DEPUTY COUNTY COUNSEL BRAD STEPHENS KATHLEEN KEHOE GREESON September 9, 2008 VIA FACSIMILE (530) 221-5439 AND U.S. MAIL Dennis McGalliard Western Business Products 2269 Hartnell Avenue Redding, CA 96002 Re: Contract X17152 by and between Western Business Products and Butte County Dear Mr. McGalliard: The purpose of this letter is to address Western Business Products' failure to perform its obligations pursuant to the terms of that certain Contract X17152 by and between Western Business Products ("Western Business") and Butte County ("County"), dated on or after May 1, 2008 (the "Agreement"). The County and Western Business entered into the Agreement pursuant to the U.S. Communities Government Purchasing Alliance Program, specifically, the Lanier Office Machines Contract Number 58795, as amended. To date, Western Business has not performed its obligations under the Agreement. Pursuant to Attachment Il (Scope of Work) of the Agreement, Western Business is to provide the County with all material, labor and services in connection with a 5 year lease of 143 convenience copiers, with such lease to begin July 1, 2008. Western Business has not provided the County with any copiers pursuant to the Agreement as of the date of this letter. It is our understanding that Western Business has not ordered the necessary copiers due to financing problems. Further, representatives of Western Business have represented to Nancy Weston of the County's General Services Department that Western Business will not be able to perform at all under the Agreement unless the County enters into a Master Lease/Purchase Agreement with GreatAmerica Leasing Corporation (the "Proposed Lease"). Kevin Schatz of Western Business provided the County with a copy of the Proposed Lease. The Agreement does not contemplate that the County would enter into additional agreements. The Proposed Lease is outside the scope of the County's arrangement with Western Business. The County has reviewed the terms of the Proposed Lease and will not enter into it. A material and total breach of an agreement may amount to grounds for termination by the injured party.' Here, Western Business' core promise in the Agreement is that they will provide copiers in exchange for the County's specific monthly payment. Western Business has committed a material and complete breach by failing to provide any copiers more than two (2) months following the start of the lease. The County considers this to be grounds for termination of the Agreement by the County and as such, the Agreement is hereby rescinded. The County cannot wait any longer for Western Business to meet its obligations under the Agreement. If the County must utilize an alternative source for these machines, it must start the bidding process quickly. I look forward to your response if you have a different opinion with respect to Western Business' material breach and termination of the Agreement. Although the County believes that Western Business has materially and completely breached the Agreement, without waiving any other rights, this letter should also serve as written notice of the County's intent to terminate the Agreement pursuant to paragraph 6 of Attachment III (Terms and Conditions) should it prove necessary. Please contact me if you have any questions or if you would like to address the foregoing. Very truly yours, BRUCE S. ALPERT Butte County Counsel By � -- Kathleen Kehoe Ureeson Deputy County Counsel cc: Board of Supervisors C. Brian Haddix Bruce Alpert Richard Hall ✓Nancy Weston Q.E. Witkin eta}., Summary of California Law § 852 (2005).