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HomeMy WebLinkAbout20-0122 MacQueen Equipment LLCAGREEMENT THIS AGREEMENT is hereby made and entered into this 22nd day of January, 2020, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and MacQueen Equipment, LLC, a Delware corporation d/b/a MacQueen Emergency, (hereinafter referred to as "MACQUEEN' or "CONTRACTOR"). NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: I. PURCHASE. City shall purchase, and MACQUEEN shall sell the goods and/or services described by Attachment A, attached hereto and made a part hereof. 2. TERMS. This agreement shall be subject to the terms and conditions contained herein and as provided by Attachment A, and Houston -Galveston Area Council (HGAC) Consortium Pricing Contract #FS12-19 ("HGAC Contract"), made a part hereof by reference. 3. CONFLICT. Notwithstanding anything to the contrary provided herein or in any attachment or document hereto, in the event of any conflict between any of the terms and provisions of this agreement and Attachments A or the HGAC Contract hereto, or any portion thereof, the terms and provisions of this agreement shall control. In the event of a conflict between Attachments A and the HGAC Contract hereto, the provisions of Attachment A shall control. In the event of a conflict between the provisions of this purchase agreement and Attachment A hereto, the provisions of this agreement shall control. 4. LAW/VENUE. This agreement is subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this agreement shall be the Circuit Court of Kane County, Illinois. MACQUEEN hereby irrevocably consents to the jurisdiction of the Circuit Court of Kane County, Illinois for the enforcement of any rights, the resolution of any disputes and/or for the purposes of any lawsuit brought pursuant to this agreement or the subject matter hereof, and MACQUEEN agrees that service by first class U.S. mail to MacQueen Equipment, LLC, 1125 7'^ Street East, St. Paul, MN 55106 shall constitute effective service. Both parties hereto waive any rights to a jury. 5. NO MODIFICATION. There shall be no modification of this agreement, except in writing and executed with the same formalities as the original. 6. MERGER. This agreement embodies the whole agreement of the parties. There are no promises, terms, conditions or obligations other than those contained herein, and this agreement shall supersede all previous communications, representations or agreements, either verbal, written or implied between the parties hereto. 7. INTEREST. MACQUEEN hereby waives any and all claims or rights to interest on money claimed to be due pursuant to this agreement including but not limited to any attachment hereto, and waives any and all such rights to interest to which it may otherwise be entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act (50 ILCS 50511, et seq.), as amended, or the Illinois Interest Act (815 ILCS 205/1, et seq.), as amended. The provisions of this paragraph shall survive any expiration, completion and/or termination of this agreement. 8. SEVERABILITY. The terms of this agreement shall be severable. In the event any of the terms or the provisions of this agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this agreement shall remain in full force and effect. 9. PAYMENT. City shall pay the total sum of $803,776 within seven (7) days of the date of this agreement. The aforementioned total sum is inclusive of all freight, shipping and applicable taxes. 10. LIMITATION OF DAMAGES. In no event shall City be liable for any monetary damages in excess of the purchase price contemplated by this agreement. In no event shall City be liable for any consequential, special or punitive damages, or any damages resulting from loss of profit. 11. DELIVERY. Notwithstanding anything to the contrary anywhere in this agreement or attachments, transfer of title, and risk of loss shall pass to the City only upon delivery of the goods. All transportation and delivery shall be at MACQUEEN's sole expense. 12. INDEMNIFICATION. To the fullest extent permitted by law, MACQUEEN agrees to and shall indemnify, defend and hold harmless the City, its officers, employees, boards and commissions from and against any and all claims, suits, judgments, costs, attorney's fees, damages or any and all other relief or liability arising out of or resulting from or through or alleged to arise out of any acts or negligent acts or omissions of MACQUEEN or MACQUEEN's officers, employees, agents or subcontractors in the performance of this agreement, including but not limited to, all goods delivered or services or work performed hereunder. In the event of any action against the City, its officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. Notwithstanding anything to the contrary anywhere in this agreement or attachments, in no event shall the City be liable for any of MACQUEEN's attorneys' fees. 13. EXECUTION. This agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. For the purposes of executing this agreement, any signed copy of this agreement transmitted by fax machine or e- mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e- mail copy of this agreement shall be re -executed by the parties in an original form. No party to this agreement shall raise the use of fax machine or e-mail as a defense to this agreement and shall forever waive such defense. The person signing this agreement certifies that s/he has been authorized by the Seller to commit the Seller contractual and has been authorized to execute this agreement on its behalf. IN WITNESS WHEREOF the parties have hereto set their hands the day and year first above written. MACQUEEN EQUIPMENT, LLC CITY OF ELGIN GR<& 41?JV—CsJ5 � Print Name'Richard G. KcFzal, City Manager 4M4 Sign ATTEST FALegal Dept\Ag =rnentWiacQuwn Equipment -Purchase Agr-Pierce Quint-1-16-20.dmx r4MACQUEEN ATTACHMENTA EMERGENCY PURCHASE AGREEMENT This Purchase Agreement (together with all attachments referenced herein, the "Agreement"), made and entered into by and between MacQueen Equipment, LLC, as Delaware corporation DBA MacQueen Emergency ("MacQueen"), and City of Ekj (customer) is effective as of the date specified in Section 3 hereof. 1. Definitions a. "Product" means the fire apparatus and any associated equipment furnished for the Customer by MacQueen, pursuant to the specifications. b. "Specifications" means the general specifications, technical specifications, orientation, and testing requirements for the Product contained in the MacQueen Proposal for the Product prepared in response to the Customer's request for proposal. c. "MacQueen Proposal" means the proposal provided by MacQueen attached as Exhibit C prepared in response to the Customer's request for proposal. d. "Delivery" means the date MacQueen is prepared to make physical possession of the Product available to the Customer. 2. Purpose This Agreement sets forth the terms and conditions of MacQueen's sale of the Product to the Customer. 3. Term of Agreement This Agreement will become effective on the date it is signed and approved by MacQueen's authorized representative pursuant to Section 20 hereof ("Effective Date") and, unless earlier terminated pursuant to the terms of this Agreement, it will terminate upon the Customer's Acceptance and payment in full of the Purchase Price. 4. Purchase and Payment The Customer agrees to purchase the Product specified on Exhibit A for the total purchase price of $828,700.00 ("Purchase Price"). Prices are in US Funds. NOTE: Upon final inspection at the factory for pick-up or delivery, the customer will need to supply a "Certificate of Insurance" and "FULL PAYMENT" prior to release of the vehicle, unless prior arrangements for vehicle's release have been made. S. Future Changes Various state or federal regulatory agencies (e.g. NFPA, DOT, EPA) may require changes to the Specifications and/or the Product and in any such event any resulting cost increases incurred to comply therewith will be added to the Purchase Price to be paid by the Customer. In addition, any future drive train upgrades (engine, transmission, axles, etc.), or any other specification changes have not been calculated into our annual increases and will be provided at additional cost. To the extent practicable, Company will document and itemize any such price increase for the Customers approval before proceeding. 6. Agreement Changes The Customer may request that MacQueen incorporate a change to the Products or the Specifications for the Products by delivering a change order to MacQueen; provided, however, that any such change order must be in writing and include a description of the proposed change sufficient to permit MacQueen to evaluate the feasibility of such change ("Change Order"). Within seven (7) business days of receipt of a Change Order, MacQueen will inform the Customer in writing of the feasibility of the Change Order, the earliest possible implementation date for the Change Order, of any increase or decrease in the Purchase Price resulting from such Change Order, and of any effect on production scheduling or Delivery resulting from such Change Order. MacQueen shall not be liable to the Customer for any delay in performance or Delivery arising from any such Change Order. A Change Order is only effective when counter -signed by MacQueen's authorized representative. #MACQUEEN EMERGENCY 7. Cancellation/Termination In the event this Agreement is cancelled or terminated by a party before completion, MacQueen may charge a cancellation fee. The following charge schedule based on costs incurred may be applied: (a)10% of the Purchase Price after order is accepted and entered by MacQueen; (b) 20% of the Purchase Price after completion of approval drawings, and; (c) 30%of the Purchase Price upon any material requisition. The cancellation fee will increase accordingly as costs are incurred as the order progresses through engineering and into manufacturing. MacQueen endeavors to mitigate any such costs through the sale of such Product to another purchaser; however, Customer shall remain liable for the difference between the Purchase Price and, if applicable, the sale price obtained by MacQueen upon sale of the Product to another purchaser, plus any costs incurred by MacQueen to conduct any such sale. 8. Delivery, Inspection, and Acceptance a. Delivery Delivery of the Product is scheduled to be within 8.5-10 months of the Effective Date of this Agreement. Risk of loss shall pass to Customer upon Delivery. Delivery shall be made and title shall pass upon Customer's complete fulfillment of its obligations arising under Section 4 hereof. b. Inspection and Acceptance Upon Delivery, Customer shall have fifteen (15) days within which to inspect the Product for substantial conformance to the material Specifications, and in the event of substantial non-conformance to the material Specifications to furnish MacQueen with written notice sufficient to permit MacQueen to evaluate such non- conformance ("Notice of Defect"). Any Product not in substantial conformance to material Specifications shall be remedied by MacQueen within thirty (30) days from the Notice of Defect. In the event MacQueen does not receive a Notice of Defect within fifteen (15) days of Delivery, Product will be deemed to be in conformance with Specifications and Accepted by Customer. 9. Notice Any required or permitted notices hereunder must be given in writing at the address of each party set forth below, or to such other address as either parry may substitute by written notice to the other in the manner contemplated herein, by one of the following methods: hand delivery; registered, express, or certified mail, return receipt requested, postage prepaid; or nationally -recognized private express courier: MacQueen Equipment, LLC 1125 7th Street East St. Paul, MN 55106 City of Elgin Interim Fire Chief Robert Cagann S50 Summit Street Elgin, IL 60120 10. Standard Warranty The equipment sold herein will be manufactured by Pierce Manufacturing, Inc. and any warranties are attached hereto as Exhibit B and made a part hereof. Any additional warranties must be expressly approved in writing by Pierce's authorized representative and MacQueen. a. Disclaimer Other than as expressly set forth in this agreement, neither Pierce, its Parent Company, Affiliates, Subsidiaries, Licensors, suppliers, distributors, dealers, including without limitation, MacQueen, or other respective officers, directors, employees, shareholders, agents or representatives, make any express or implied warranties with respect to the products provided hereunder or otherwise regarding this agreement, whether oral or written, express, implied or statutory. Without limiting the foregoing, any implied warranty against infringement, and the implied warranty of condition of fitness for a particular purpose are expressly excluded and disclaimed. Statements made by sales representatives or in promotional materials do not constitute warranties. b. Exclusions of Incidental and Consequential Damages In no event shall MacQueen be liable for consequential, incidental or punitive damages incurred by Customer or any third party in connection with any matter arising out of or relating to this Agreement, or the breach thereof, A\L MACQUEEN r EMERGENCY regardless of whether such damages arise out of breach of warranty, tort, contract, strict liability, statutory liability, indemnity, whether resulting from non -delivery or from MacQueen's own negligence, or otherwise. 11. Insurance MacQueen maintains the following limits of insurance with a carrier(s) rated A- or better by A.M. Best: Commercial General Liability Insurance: Products/Completed Operations Aggregate: $ 2,000,000 Each Occurrence: $ 2,000,000 Umbrella/Excess Liability Insurance: Aggregate: $ 5,000,000 Each Occurrence: $ 5,000,000 The Customer may request MacQueen to provide the Customer with a copy of a current Certificate of Insurance with the coverages listed above. 12. Indemnity The Customer shall indemnify, defend and hold harmless MacQueen, its officers, employees, dealers, agents or subcontractors, from any and all claims, costs, judgments, liability, loss, damage, attorneys' fees or expenses of any kind or nature whatsoever (including, but without limitation, personal injury and death) to all property and persons caused by, resulting from, arising out of or occurring in connection with the Customer's purchase, installation or use of goods sold or supplied by MacQueen which are not caused by the sole negligence of MacQueen or Pierce. 13. Force Majeure MacQueen shall not be responsible nor deemed to be in default on account of delays in performance due to causes which are beyond MacQueen's control which make MacQueen's performance impracticable, including but not limited to civil wars, insurrections, strikes, riots, fires, storms, floods, other acts of nature, explosions, earthquakes, accidents, any act of government, delays in transportation, inability to obtain necessary labor supplies or manufacturing facilities, allocation regulations or orders affecting materials, equipment, facilities or completed products, failure to obtain any required license or certificates, acts of God or the public enemy or terrorism, failure of transportation, epidemics, quarantine restrictions, failure of vendors (due to causes similar to those within the scope of this clause) to perform their contracts or labor troubles causing cessation, slowdown, or interruption of work. 14. Default The occurrence of one or more of the following shall constitute a default under this Agreement: (a) the Customer fails to pay when due any amounts under this Agreement or to perform any of its obligations under this Agreement; (b) MacQueen fails to perform any of its obligations under this Agreement; (c) either party becomes insolvent or become subject to a bankruptcy or insolvency proceedings; (d) any representation made by either party to induce the other to enter into this Agreement is false in any material respect; € the \ Customer dissolves, merges, consolidates or transfers a substantial portion of its property to another entity; or (f) the Customer is in default or has breached any other contract or agreement with MacQueen. 15. Relationship of Parties Neither party is a partner, employee, agent, orjoint venture of or with the other. 16. Assignment Neither party may assign its rights and obligations under this Agreement unless it has obtained the prior written approval of the other party. 17. Governing Law; Jurisdiction Without regard to any conflict of law's provisions, this Agreement is to be governed by and under the laws of the state of Minnesota. 18. Facsimile signatures The delivery of signatures to this Agreement by facsimile transmission shall be binding as original signatures. �A� MACQUEEN r EMERGENCY 19. Entire Agreement This Agreement shall be the exclusive agreement between the parties for the Product. Additional or different terms proposed by the Customer shall not be applicable, unless accepted in writing by MacQueen's authorized representative. No change in, modification of, or revision of this Agreement shall be valid unless in writing and signed by MacQueen's authorized representative. 20. Conflict In the event of a conflict between the Customer Specifications and the MacQueen Proposal, the MacQueen Proposal shall control. 21. Additional Orders Company, at its sole discretion, will allow the terms of this contract to be extended to both the Customer, as well as to other Municipal, State, or Federal agencies for similar unit(s). Company will allow tag on / additional orders for up to three (3) years from the date of contract execution. To facilitate pricing, Company will quote the original price plus manufacturer's price increases or Producer's Price Index (PPI) whichever is greater as it applies to either Fire Apparatus and/or commercial heavytruck industries. Additionally, any regulatory changes (NFPA, EPA, Engine Emissions, FMVSS, etc.) will also have to be added to the price as they become applicable. Change orders to the original specification will need to be authorized, signed, and accepted by Company. Any entity using this tag-on/additional orders program will be required to sign a new contract commencing the relationship. Additionally, if required by the Purchaser, any new tag -on / additional orders that require a "separate" Performance bond will be separately priced. This contract, including its appendices, embodies the entire agreement between the parties relating to the subject matter contained herein and merges all prior discussions and agreements. No agent or representative of Company has authorityto make any representations, statements, warranties, or agreements not herein expressed and all modifications of amendments of this agreement, including any appendices, must be in writing and executed by an authorized representative of each of the parties hereto. No surety of any performance bond given by Company to the Customer in connection with this Agreement shall be liable for any obligation of Company arising under the Standard Applicable Warranty. 22. Signatures This Agreement is not effective unless and until it is approved, signed and dated by MacQueen's authorized representative. Accepted and Agreed to: MACQUEEN EQUIPMENT, LLC Signature: Name: Title: Date: 4 CITY OF ELGI r' Signature: Name: �r7� 4 A)7Ql Title: Date: 4 MACQUEEN r EMERGENCY EXHIBIT A - PURCHASE PAYMENT TERMS & CONDITIONS MacQueen Equipment, LLC 1125 7th Street East St. Paul, MN 55106 Customer Name City of Elgin Date January 10, 2020 Quantity Chassis Type Body Type Price per unit 1 I Enforcer 107'Ascendant $828,700.00 *Houston -Galveston Area Council (HGAQ Consortium PrkMa. PERFORMANCE BOND OPTION: If a Performance Bond is required add $2 903 00 to the contract price Initial here to acceot: TRADE INs included in above "Price per unit' (Trade -In units are subject to having no major/excessive underside corrosion, must be fully operational at time of trade have new pump or ladder test done after they are removed from service. and be equipped with the basic/fixed equipment they came with from the factory when new and have a clear title If a trade-in is unacceptable due to any of these conditions the appropriate amount as listed below will be added to the Purchase Price of $828,700.00 and is payable to MacQueen per the terms of this agreement.): A $9 000 00 Trade In allowance for 2005 Seagrave Pumper is included in Price per Unit (VIN 1F9EW28TX5CST20631. AN $80 000 00 Trade In allowance for 2007 Seagrave Aerial is included in Price Per Unit. (VIN 1F9FW28T97CST2031) A $50 000 00 Trade In allowance for 2009 KME Pumper is Included in Price per Unit. (VIN 1K9AF4287AN0587621 100% PREPAYMENT OPTION: DUE AT CONTRACT EXECUTION TO BE APPLICABLE. This contract is available for inter -local and other municipal corporations to utilize with the option of adding or deleting any Company available options, including chassis models. Any addition or deletion may affect the unit price. "PAYMENTTERMS": 100%of contract Price or any balance is due prior to vehiclelsl release at the Pierce Manufacturing Plant (Appleton. WII. 'TAXES": Federal State and Local Taxes are not included In the contract price. "LATE PAYMENT": A late fee of 033%of the sale Price will be charged Per day for overdue Payments beginning ten (101 days after the payment is due for the first thirty (301 days. The late fee increases to .044% Per day until the payment is received. [NOTE: If deferred payment arrangements are required, the Customer must make such financial arrangements through a financial institution acceptable to MacQueen.] All taxes, excises and levies that MacQueen may be required to pay or collect by reason of any present or future law or by any governmental authority based upon the sale, purchase, delivery, storage, processing, use, consumption, or transportation of the Product sold by MacQueen to the Customer shall be for the account of the Customer and shall be added to the Purchase Price. All delivery prices or prices with freight allowance are based upon prevailing freight rates and, in the event of any increase or decrease in such rates, the prices on all unshipped Product will be increased or decreased accordingly. Delinquent payments shall be subject to a carrying charge of 1.5 percent (1.5%) per month or such lesser amount permitted bylaw. MacQueen will not be required to accept payment other than asset forth in this Agreement. However, to avoid a late charge assessment in the event of a dispute caused by a substantial nonconformance with material Specifications (other than freight), the Customer may withhold up to five percent (5%) of the Purchase Price until such time that MacQueen substantially remedies the nonconformance with material Specifications, but no longer than sixty (60) days after Delivery. If the disputed amount is the freight charge, the Customer may withhold only the amount of the freight charge until the dispute is settled, but no longer than sixty (69) days after Delivery. MacQueen shall have and retain a purchase money security interest in all goods and products now or hereafter sold to the Customer by MacQueen or any of its affiliated companies to secure payment of the Purchase Price for all such goods and products. In the event of nonpayment by the Customer of any debt, obligation or liability now or hereafter Incurred or owing by the Customer to MacQueen, MacQueen shall have and may exercise all rights and remedies of a secured parry under Article 9 of the Uniform Commercial Code (UCC) as adopted by the state of Minnesota. THIS PURCHASE DETAIL FORM IS EXPRESSLY SUBJECT TO THE PURCHASE AGREEMENT TERMS AND CONDITIONS DATED AS OF January 10. 2020 BETWEEN MACQUEEN AND City of Elgin (customer) WHICH TERMS AND CONDITIONS ARE HEREBY INCORPORATED IN, AND MADE PART OF, THIS PURCHASE DETAIL FORM AS THOUGH EACH PROVISION WERE SEPARATELY SET FORTH HEREIN, EXCEPT TO THE EXTENT OTHERWISE STATED OR SUPPLEMENTED BY MACQUEEN HEREIN. Is Customer Name and Address listed on page 2 to be used on Certificate of Origin (CO)0 No H not, please provide correct name and address to be listed on CO. Is there a Ilenholder7 0 yes No If yes, please provide lienhold r i formation. MACQUEEN r EMERGENCY EXHIBIT B —WARRANTY SEE ATTACHED PROPOSAL OPTION LIST Bid Number 947 Dated 1/10/2020 FOR ALL APPLICABLE WARRANTIES. �A� MACOUEEN r EMERGENCY EXHIBIT C - PROPOSAL SEE PROPOSAL FOR Bid Number 947 Dated 1/10/2020 .