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HomeMy WebLinkAbout21-149 Resolution No. 21-149 RESOLUTION AUTHORIZING EXECUTION OF A PURCHASE AGREEMENT WITH XYLEM WATER SOLUTIONS U.S.A. INC. FOR THE PURCHASE OF MIXERS FOR THE AIRLITE WATER TREATMENT PLANT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that pursuant to Elgin Municipal Code Section 5.02.020B9 the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interests of the city; and BE IT FURTHER RESOLVED, that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk,be and are hereby authorized and directed to execute a Purchase Agreement on behalf of the City of Elgin with Xylem Water Solutions U.S.A.,Inc.,for the purchase of mixers for the Airlite Water Treatment Plant, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: October 13, 2021 Adopted: October 13, 2021 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk PURCHASE AGREEMENT THIS AGREEMENT is hereby made and entered into this 13th day of October, 2021, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and Xylem Water Solutions U.S.A., Inc., a Delaware corporation, (hereinafter referred to as "Xylem" or "Seller"). 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: 1. PURCHASE. City shall purchase, and Xylem 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. 3. 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. Xylem 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 Xylem agrees that service by first class U.S. mail to CT Corporation System, 208 S. LaSalle St., Suite 814, Chicago, IL 60604 shall constitute effective service. Both parties hereto waive any rights to a jury. 4. NO MODIFICATION. There shall be no modification of this agreement, except in writing and executed with the same formalities as the original. 5. 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. 6. INTEREST. Xylem hereby waives any and all claims or rights to interest on money claimed to be due pursuant to this agreement, 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. 7. 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. 8. COMPLIANCE WITH LAW. Notwithstanding any other provision of this agreement, it is expressly agreed and understood that in connection with the performance of this agreement, Xylem shall comply with all applicable federal, state, city and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, Xylem hereby certifies, represents and warrants to the City that all of Xylem's employees and/or agents who will be providing products and/or services with respect to this agreement shall be legally authorized to work in the United States. Xylem shall also, at its expense, secure all permits and licenses, pay all charges and fees, and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this agreement. The City shall have the right to audit any records in the possession or control of Xylem to determine Xylem's compliance with the provisions of this section. In the event the City proceeds with such an audit, Xylem shall make available to the City Xylem's relevant records at no cost to the City. City shall pay any and all costs associated with any such audit. 9. 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. 10. CONFLICT. In the event of any conflict between the terms and provisions of this purchase agreement and Attachment A hereto, the terms and provisions of this purchase agreement shall control. 11. PAYMENT. City shall pay the total sum of$89,823 within thirty (30) days of delivery or city's receipt of invoice, whichever is later. The aforementioned total sum is inclusive of all freight, shipping and applicable taxes. 12. DELIVERY. Xylem shall complete delivery of all goods on or before January 31, 2021. 13. MUTUAL WAIVER AND LIMITATION OF LIABILITY. City and Xylem, (inclusive of their respective officers, directors, members, partners, subcontractors, and employees) shall not be liable to each other for loss of profit or revenue, loss of use or business opportunity, loss of contract, cost of obtaining alternative performance, or for any indirect, consequential, special, incidental and punitive damages. The aggregate liability of each party, whether under contract law, in tort (including negligence), or otherwise, is limited to the Purchase Agreement price ("Cap"). This Cap does not apply to: (a) costs, losses, or damages asserted by third parties for destruction of tangible property, (b) bodily injury, sickness, or death of any persons; or (c) gross negligence or willful misconduct. 2 14. TRANSFER OF TITLE/RISK. Transfer of title, and risk of loss shall pass to the City upon delivery of the goods. All transportation and delivery shall be at Xylem's sole expense. 15. INDEMNIFICATION. To the fullest extent permitted by law, Xylem 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 Xylem or Xylem'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. 16. RELATIONSHIP BETWEEN THE PARTIES. This Agreement shall not be construed so as to create a joint venture, partnership, employment or other agency relationship between the parties hereto. 17. WAIVER. Neither party hereto shall be responsible for any consequential, indirect, punitive or incidental damages for any reason whatsoever. Any delay or failure to enforce any rights by either party arising out of or pursuant to this Agreement shall not constitute, and shall not be construed as, a waiver of any such rights. 18. LIMITATION OF ACTIONS. Xylem shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City of Elgin and/or its affiliates, officers, employees, agents, attorneys, boards and commissions of any nature whatsoever and in whatsoever forum after two (2) years from the date of this Agreement. 19. TIME IS OF THE ESSENCE. Time is of the essence of this Agreement. 20. NO SPECIAL OR OTHER DUTY. No special duties or obligations are intended and shall not be deemed or construed to be created by this agreement. Notwithstanding anything to the contrary in this agreement, it is agreed and understood that no third party beneficiaries are intended or shall be construed to be created by the provisions of this agreement and it is the intention of the parties hereto that no action may be commenced by any person or entity against the City and/or Xylem and/or their respective officials, officers, employees, agents and/or other related persons or entities for monetary damages for any alleged breach or failure to provide services described in this agreement. The provisions of this section shall survive any expiration and/or termination of this agreement. The person signing this Agreement certifies that s/he has been authorized by the Seller to commit the Seller contractually and has been authorized to execute this Agreement on its behalf. 3 IN WITNESS WHEREOF, the parties have hereto set their hands the day and year first above written. XYLEM WATER SOLUTIONS U.S.A, INC. CITY LGIN Reza Mohseni Print Name chard G. Ka1.oz City anager AT Attest: Signature Engineered Solutions Supervisor Title City Clerk FALegal Dept\AgreementAylem Purchase Agr-Aeration&Recarbonation Basin-9-13-21.docx 4 ATTACHMENT A xylem Xylem Water Solutions USA, Inc. F/ygt Products August 19, 2021 9661 194th Street Mokena, IL 60448 CITY OF ELGIN Tel (708) 342-0484 150 DEXTER CT Fax (708) 342-0491 ELGI N I L 60120-5527 Quote#2021-CHI-0823 Project Name: Elgin Airlite Job Name: Aeration & Recarb-Duplex Mixers, Masts, and Cranes Attn: Jeff Luker Hello Jeff, Xylem Water Solutions USA, Inc. is pleased to provide a quote for the following Flygt equipment and services for BOTH the Airlite Aeration Basin and Recarbonation Basin. 2 - Control Panel (Identical to River Intake, Mixer 1 on right/ Mixer 2 on left) 2 - Aeration: 1.5HP 460V 4220 Mixers (15" DIA, 3 SS Blades) with cable support accessories 2 - Recarb: 1.5HP 460V 4220 Mixers (23" DIA, 3 SS Blades) with cable support accessories 4 - Floor Mount System IV 2" Mast Kits, with 1 intermediate support and 20' length Mast (to be cut to size) 4 - Mixer Support Arms 4 - Crane Base Pedestals, Mounting Hardware, and Mixer lifting cable 4 - Cable Spools 2 - Portable Crane (1 per basin) to share between pedestals, as needed 2 - Day of startup services (1 per basin) to ensure proper operation of the equipment, and training of its use. Freight is included for all items to: 74 N.Airlite Street Elgin, IL 60123 Not included: Installation Cutting of Mast to size (Will come in 20' length) Electrical wiring Anchor bolts (Except for crane bases) J-Boxes, if needed Current Delivery Expectation: 9-11 Weeks from approval of order. Aeration 1.5 HP Mixers Qty Description 2 SR370 1.5/540 65' FLS SB2X2 Page 1 of 5 FLYGT a xytem brand Qty Description 2 GRIP,CABLE SS 19-24MM 2 KIT,HOSE SHRINK Recarb 1.5 HP Mixers Qty Description 2 SR580 1.5/204 65' FLS 2 GRIP,CABLE SS 19-24MM 2 KIT,HOSE SHRINK System IV 2" Mixer Mast, Floor mount Qty Description 4 KIT,SYSTEM IV-2" FLOOR MOUNT+ 20'CABLE, ONE SUPPORT 20 TUBING,SQUARE SS316 2X2X.180" 20 TUBING,SQUARE SS316 2X2X.180" 20 TUBING,SQUARE SS316 2X2X.180" 20 TUBING,SQUARE SS316 2X2X.180" 4 ARM,SUPPORT UNIT Lifting Crane Qty Description 2 Portable Crane First Mate Series 850 lbs. / 385 kg maximum capacity portable davit crane with a M4022PB-K spur gear hand winch. Crane includes: - Handle for easy 3600 rotation with Nylatron flange bearing - Boom angle adjustment in 3 available positions - Quick connect winch mounting plate with single clevis pin connection -Welded constructed structural steel pipe and tubing - Red Electrostatic Powder Coat finish - Stainless Steel assembly hardware - Crane is CE marked Winch Includes: - 2.85:1 gear ratio - single stage reduction -Weston-style automatic brake for positive load control with stainless steel fasteners - Durable solid steel machine cut gears - Corrosion resistant zinc plate finish - Slot for swaged ball end on wire rope assembly to allow for Quick Disconnect feature - Stainless Steel fasteners to mount winch to crane -Winch is CE marked 4 Pedestal Base First Mate(5PF5)and Ensign 500(5PA5)Pedestal Base -Base cover with lanyard -Quick Disconnect-keyhole slot on base to attach swaged ball end of wire rope.This will allow the rope to remain attached to the load at all times and the operator is able to move the crane assembly to another base location. -Red Electrostatic Powder Coat finish Page 2 of 5 FLYGT a xylem brand Qty Description 4 Expansion bolt anchor kit Includes four bolts ANCHOR DIAMETER: 1/2" ANCHOR LENGTH: 5 1/2" 304 STAINLESS STEEL A qualified professional should inspect or design the foundation to ensure that it will provide adequate support.To comply with local codes, contact a qualified professional to obtain proper structure or foundation specifications for the mounting of Them products. 4 Lifting Cable 3/16"diameter 7x19 aircraft cable assembly -304 Stainless Steel -28 feet long -Swaged ball one end -Swivel eye hook with safety latch other end -Ships loose with order 4 Cable storage spool -Quick-disconnect anchor for swaged ball end of wire rope assembly-This will allow the rope to remain attached to the load at all times and the operator is able to move the crane assembly to another base location Spring-loaded ratchet pawl prevents wire rope from spooling off of storage spool Designed to hold excess wire rope under no-load condition 316 Electropolished Stainless Steel finish The cable spool does not include mounting hardware. Recarb Control Panel Qty Description 1 4220 Mixer Control Panel For use with both mixers. Will house Main Breaker, and individual breakers. Interlock Fuses Gateway (Control for Mixers) Surge protector 2 GATEWAY,CONTROL MIXER FPG 415 1 PANEL,OPERATOR FOP315 1 KIT,SURGE PROTECTION 460V+ STRIKESORB Aeration Control Panel Qty Description 1 4220 Mixer Control Panel For use with both mixers. Will house Main Breaker, and individual breakers. Interlock Fuses Gateway (Control for Mixers) Surge protector 2 GATEWAY,CONTROL MIXER FPG 415 1 PANEL,OPERATOR FOP315 1 KIT,SURGE PROTECTION 460V+ STRIKESORB Aeration Startup Qty Description Page 3 of 5 FLYGT a xylem brand Qty Description 7 LABOR,MOBILE FLYGT,NOTAX Z5-TP MODELS: 3000,7000,8000 Recarb Startup Qty Description 7 LABOR,MOBILE FLYGT,NOTAX Z5-TP MODELS: 3000,7000,8000 Total Price $ 85,433.00 Freight Charge $ 4,390.00 Total Price $ 89,823.00 Terms&Conditions Purchase Orders: Please make purchase orders out to: Xylem Water Solutions USA, Inc. Freight Terms: 3 DAP- Delivered At Place 08-Jobsite (per IncoTerms 2020) See Freight Payment(Delivery Terms) below. Taxes: State, local and other applicable taxes are included in this quotation. Back Charges: Buyer shall not make purchases nor shall Buyer incur any labor that would result in a back charge to Seller without prior written consent of an authorized employee of Seller. Shortages: Xylem will not be responsible for apparent shipment shortages or damages incurred in shipment that are not reported within two weeks from delivery to the jobsite. Damages should be noted on the receiving slip and the truck driver advised of the damages. Please contact our office as soon as possible to report damages or shortages so that replacement items can be shipped and the appropriate claims made. Validity: This Quote is valid for sixty(60)days. Time of Delivery: At time of quotation, Approx. 9-11 working weeks after approval of order. Delivery subject to change. Check for current delivery at time of order. Terms of Payment: 100% N60 after invoice date. Xylem's payment shall not be dependent upon Purchaser being paid by any third party unless Owner denies payment due to reasons solely attributable to items related to the equipment being provided by FLYGT. Terms of Delivery: PP/Add Order Position Thank you for the opportunity to provide this quotation. Please contact us if there are any questions. Sincerely, o Jeff Garretson Matt Johnson 1' Sales Representative Applications Engineer Phone: (708)781-0172 Phone: 708-781-0133 Cell: (312)343-6511 Cell: 708-603-0419 jeff.garretson@xylem.com matt.johnson@xylem.com Fax:708-342-0491 Page 4 of 5 FLYGT a xylem brand Customer Acceptance Purchase Orders: Please make purchase orders out to: Xylem Water Solutions USA, Inc. Quote #: 2021-CHI-0823 Customer Name: CITY OF ELGIN Job Name: Aeration & Recarb-Duplex Mixers, Masts, and Cranes Total Amount: $ 89,823.00 (including freight) Signature: Name: (PLEASE PRINT) Company/Utility: PO: Address: Date: Phone: Email: Fax: Page 5 of 5 FLVGT a xylem brand