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HomeMy WebLinkAbout22-0810 Univar Solutions A-a-o810 PURCHASE AGREEMENT THIS AGREEMENT is hereby made and entered into this 10 day of August 2022, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and Univar Solutions Inc., a Washington corporation, (hereinafter referred to as Univar 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 Univar shall sell soda ash as described by Attachment A; provided, however, that City may order such amounts and such total amount as City may determine during the term of this agreement in its sole discretion during the term of this agreement provided such orders shall be not less than the minimum amounts per order as described by Attachment A. 2. TERMS. This Agreement shall be subject to the terms and conditions contained herein and as provided by Attachment A (the Bid), and the IFB. "This Contract" as used herein shall mean this agreement, the applicable invitation for bids ("IFB") including all documents referenced therein, incorporated herein and made a part hereof by reference; Univar's bid response thereto (`Bid"), incorporated herein and made a part hereto by reference, and as attached hereto and made a part hereof as Attachment A. 3. CONFLICT. In the event of any conflict between any of the terms and provisions of this purchase agreement and the IFB and/or Attachment A hereto, the terms and provisions of this purchase agreement shall control; provided, however, that any additional insurance requirements provided for in Attachment A or the IFB which exceed those provided for in the body of this agreement shall apply. 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. Univar 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 Univar agrees that service by first class U.S. mail to Illinois Corporation Service Company, 801 Adlai Stevenson Drive, Springfield, Illinois 62703 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 regarding the subject matter hereof. There are no promises, terms, conditions or obligations other than those contained herein regarding the subject matter hereof, and this agreement shall supersede, supplant and replace all previous communications, representations or agreements, either verbal, written or implied between the parties hereto regarding the subject matter hereof. 7. INTEREST. Univar 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. 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. 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, Univar 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, Univar hereby certifies, represents and warrants to the City that all of Univar'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. Univar 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 Univar to determine Univar's compliance with the provisions of this section. In the event the City proceeds with such an audit, Univar shall make available to.the City Univar's relevant records at no cost to the City. City shall pay any and all costs associated with any such audit. 10. PAYMENT. City shall pay for all soda ash purchased as provided for by this agreement on the rate basis of $0.165 per pound within thirty (30) days of delivery or other performance, or city's receipt of invoice, whichever is later. The aforementioned total sum is inclusive of all freight, shipping and applicable taxes. City is a tax-exempt governmental entity. 11. 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. 12. TRANSFER OF TITLE/RISK. Transfer of title, and risk of loss shall pass to the City upon delivery of the goods to City's facilities. All transportation and delivery shall be at Univar's sole expense. 13. INDEMNIFICATION. To the fullest extent permitted by law,Univar 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 Univar or Univar'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 2 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. In the event that Univar fails to deliver any soda ash as provided by this agreement,Univar shall pay to the City the differential cost between the price provided for herein and any additional costs incurred by the City to obtain replacement soda ash from any other sources. 14. TERM. This agreement shall terminate on December 31, 2022; provided, however, that notwithstanding anything to the contrary in this agreement, the City may terminate this agreement at any time for any reason upon ten (10) days written notice by first class U.S. mail without penalty. In the event of such termination by the City, any payments or liability shall be limited to the price for any purchase actually received by the City as provided for herein. 15. TEMPORARY EMERGENCY PRICE INCREASES. In the event of a force majeure emergency, Univar shall be entitled to a temporary price increase after September 30, 2022 of not more than 15% for a period not to exceed ninety(90) days upon written advance approval by the City. 16. 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 Univar to commit Univar contractually 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. UNIVAR SOLUTIONS USA INC. CIT LG1N Shawnasey McCarthy (/ Print Name Richard G. Kozal, City Manager z st: Signature Municipal Commercial Manager City Clerk Title Legal Dept\Agreement\Univar Solutions Purchase Agr-Soda Ash-8-1-22.docx 3 ATTACHMENT A ELGIN, ILLINOIS, WATER DEPARTMENT CHEMICAL BID SPECIAL CONDITIONS Chemical: Soda Ash (dense) l. Delivery must be made within seven (7)calendar days after receipt of order. 2. Chemical must meet AWWA specification B201-(Current Revision), and be certified suitable for potable water injection by appropriate state and federal agencies. 3. Chemical must be shipped in tank trucks equipped with necessary blower and fittings to deliver the chemical by pneumatic conveyor into 4-5/8" O.D.quick disconnect conveying line fittings. 4. The minimum order quantity shall be nominal 40,000 pound truckload of material. 5. Bids shall specify the minimum sodium carbonate concentration in % dry solids as not less than 99% by weight. 6. Soda ash will be delivered to the Riverside Water Treatment Plant only. 15