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HomeMy WebLinkAbout23-167 Resolution No.23-167 RESOLUTION AUTHORIZING EXECUTION OF A PURCHASE AGREEMENT WITH MCCROMETER, INC. FOR THE PURCHASE OF WATER TREATMENT PLANT FLOW METERS BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that pursuant to Elgin Municipal Code Section 5.02.020B(9) the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interest of the city; and BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, 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 McCrometer,Inc.,for the purchase of water treatment plant flow meters,a copy of which is attached hereto and made a part hereof by reference. s/David J. KRtain David J. Kaptain, Mayor Presented: August 23, 2023 Adopted: August 23, 2023 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/KimberlDewis Kimberly Dewis, City Clerk PURCHASE AGREEMENT THIS AGREEMENT is hereby made and entered into this 23rd day of August 2023, by and between the City of Elgin, Illinois, a municipal corporation(hereinafter referred to as "City") and McCrometer, Inc., a Delaware corporation, (hereinafter referred to as "McCrometer" 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 McCrometer shall sell the goods and/or services described in the Quotation (Quotation No. SS6715) dated June 28, 2023, which is hereby designated as Attachment A,which is attached to this Agreement 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. McCrometer 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 McCrometer agrees that service by first class U.S. mail to National Registered Agents, Inc., 818 W. Seventh St., Suite 930, Los Angeles, CA 9007 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. McCrometer 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, McCrometer 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, McCrometer hereby certifies, represents and warrants to the City that all of McCrometer'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. McCrometer 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 McCrometer to determine McCrometer's compliance with the provisions of this section. In the event the City proceeds with such an audit, McCrometer shall make available to the City McCrometer's relevant records at no cost to the City. City shall pay any and all costs associated with any such audit. 9. COUNTERPARTS AND 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. This Agreement may be executed electronically, and any signed copy of this Agreement transmitted by facsimile machine, email, or other electronic means 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 facsimile machine, email, or other electronic means shall be considered for these purposes an original signature and shall have the same legal effect as an original signature. 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 supersede and control. 11. PAYMENT. City shall pay the total sum of$82,088 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. McCrometer shall complete delivery of all goods on or before October 31, 2023. 13. 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. 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 McCrometer's sole expense. 2 15. INDEMNIFICATION. To the fullest extent permitted by law, McCrometer 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 McCrometer or McCrometer'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. Any and all indemnification obligations imposed upon McCrometer are limited to the extent of those damages proportionately caused by McCrometer's breach of the Agreement, negligence, wrongful conduct, or violations of law. In no case is Supplier liable for any damages caused by negligence, misuse or misapplication of goods by others. 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. McCrometer 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. NO OTHER AGREEMENTS. This Agreement is the only agreement between the parties hereto regarding the subject matter hereof. There are no other agreements, either oral, written or implied, between the parties hereto regarding the subject matter hereof. This Agreement may only be altered or modified by written instrument signed by both parties. 20. SERVICES. The Services shall be limited to those services specifically described herein. For the avoidance of doubt, and without limitation, McCrometer has no responsibility for the supervision or actions of City's employees or contractors or for non-McCrometer chemicals or equipment and disclaims all liability and responsibility for any loss or damage that may be suffered as a result of such aspects or actions or any other aspects or actions not under McCrometer's control. 21. LIMITATION ON LIABILITY. THE TOTAL LIABILITY OF MCCROMETER AND ITS SUBSIDIARIES, AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS AND AGENTS ARISING OUT OF PERFORMANCE, NONPERFORMANCE, OR OBLIGATIONS IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE, DELIVERY, AND/OR 3 USE OF GOODS AND/OR SERVICES IN NO CIRCUMSTANCE INCLUDES ANY LIQUIDATED, PENALTY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, NOR EXCEED AN AMOUNT THAT IS EQUAL TO TWICE THE TOTAL AMOUNT OF COMPENSATION ACTUALLY PAID TO SUPPLIER UNDER THE AGREEMENT, EXCEPT ONLY IN THE CASE OF DAMAGES ARISING DUE TO MCCROMETER'S WILLFUL MISCONDUCT. 22. WARRANTY. McCrometer warrants that this product will be free from defects in material and workmanship for a period 24 months from the date the equipment was first installed. Repairs shall be warranted for 12 months or, if the repair is performed under this warranty, for the remainder of the original warranty period, whichever is less. City shall report any claimed defect in writing to McCrometer immediately upon discovery and in any event, within the warranty period. McCrometer shall, at its sole option, repair the equipment or furnish replacement equipment or parts thereof, at the original delivery point. McCrometer shall not be liable for costs of removal, reinstallation, or gaining access. If City or others repair, replace, or adjust equipment or parts without McCrometer prior written approval, McCrometer is relieved of any further obligation to City under this Article with respect to such equipment. No equipment furnished by McCrometer shall be deemed to be defective by reason of normal wear and tear, failure to resist erosive or corrosive action of any fluid or gas (unless otherwise specified in Quotations/Purchase Order Specifications), City's direct or indirect failure (or the failure of its agents or contractors) to properly store, install, operate, or maintain the equipment in accordance with good industry practices or specific recommendations of McCrometer, or City's failure to provide complete and accurate information to McCrometer concerning the operational application of the equipment. THE FOREGOING LIMITED WARRANTIES WITH RESPECT TO EQUIPMENT AND PRODUCTS ARE EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES OF QUALITY OR PERFORMANCE, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS OF SAID EQUIPMENT AND PRODUCTS FOR ANY PARTICULAR PURPOSE. MCCROMETER DISCLAIMS ANY WARRANTY, WHETHER EXPRESS OR IMPLIED, REGARDING THE SUITABILITY OF PRODUCTS AND EQUIPMENT SUPPLIED PURSUANT TO ANY PURCHASE ORDER FOR INSTALLATION IN ANY PARTICULAR SYSTEM OF SYSTEMS.MCCROMETER MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO ANY SERVICES PERFORMED BY MCCROMETER OR ITS AGENTS PURSUANT TO ANY QUOTATION. City's sole remedy and McCrometer's sole obligation for alleged product failure, whether under warranty claim or otherwise, shall be the aforestated obligation of McCrometer to repair or replace products returned within twenty-four months after date of original shipment. McCrometer shall not be liable for, and the City assumes and agrees to indemnify and save harmless McCrometer in respect to, any loss or damage that may arise through the use by the City of any of McCrometer's products. McCrometer does not authorize any person or entity (including, without limitation, McCrometer agents and employees) to make any representations (verbal or written) contrary to the terms of this limited warranty or its exclusions. Such terms of 4 this limited warranty and its exclusions can only be effectively modified in writing and only by the President of McCrometer. 23. INTELLECTUAL PROPERTY; INFORMATION TECHNOLOGY; PRIVACY. McCrometer retains all rights in and to any intellectual property and confidential information created or procured by it or its representatives at any time, and the City receives licenses to use such intellectual property and information only to the extent provided by implied license under applicable law. No City information technology requirements apply, except the extent such requirements specifically apply to equipment being sold to City. To help ensure mutual compliance with applicable privacy laws, the City will not provide to or share with McCrometer any personal data or personally identifiable information. Notwithstanding anything to the contrary herein, the City's good faith compliance with the provisions of the Illinois Freedom of Information Act (5 ILCS 140/1, et seq.) shall not be construed as, and shall not constitute a breach of this Agreement. 24. PERFORMANCE GUARANTEES. All product warranties and guarantees shall only be enforceable if (a) all equipment is properly installed, inspected regularly and is in good working order, (b) all operations are consistent with McCrometer's recommendations, (c) operating conditions at the City's site have not materially changed and remain within anticipated specifications, and(d)no reasonably unforeseeable circumstances exist or arise. 25. ACCEPTANCE AND SET-OFF. Except to the extent agreed upon in writing by McCrometer's CFO, all Goods and Services are deemed accepted upon delivery and early payment discounts shall not apply. Any set-off rights in the Agreement notwithstanding, City bears the customary burden of proof with respect to any amounts invoiced by McCrometer but not paid by the invoice due date. This revision does not adversely impact any of City's rights under McCrometer's warranties. 26. FUNDS TRANSFERS (PAYMENTS). The City and McCrometer both recognize that there is a risk of banking fraud when individuals impersonating a business demand payment under new banking or mailing instructions. To avoid this risk, City must verbally confirm any new or changed bank transfer or mailing instructions by calling McCrometer and speaking with McCrometer's accounts receivable contact before mailing or transferring any monies using the new instructions. Both parties agree that they will not institute mailing or bank transfer instruction changes and require immediate payment under the new instructions but will instead provide a ten(10) day grace period to verify any payment instruction changes before any new or outstanding payments are due using the new instructions. 27. MISCELLANEOUS. Except to the extent signed by a duly authorized representative of an affiliate of McCrometer, the Agreement does not bind any affiliates of McCrometer. McCrometer is not subject to any audit rights in favor of the City, except for audit rights (under reasonable conditions) directly related to McCrometer's compliance with laws and regulations (e.g., safety) which are directly applicable to McCrometer's Goods and/or Services purchased under this Agreement, or as may be specifically provided for herein. McCrometer is not obligated to purchase or carry Professional Liability or E&O Insurance coverage, provide copies of McCrometer's policies, or provide waivers of subrogation. McCrometer may include City and 5 their Affiliates as an Additional Insured party. McCrometer's obligations under the Agreement will only be modified by written agreement of McCrometer through the same duly authorized representative who signed this Agreement, or such person's duly authorized successor. Except as provided herein, neither party agrees to any contractual clause or provision, that waives such parry's ordinary and standard rights, including, but not limited to, the right to retain party's own counsel and each parry's right to determine facts and circumstances in the event of a dispute. 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. IN WITNESS WHEREOF, the parties have hereto set their hands the day and year first above written. MCCROMETER, INC. Cl LGIN Patrick Miller Print Name Richard G. Kozal, City Manager /Da&�7ewAll, Att st. Signature ,1'k Interim VP Finance, McCrometer City Clerk Title Legal Dept\Agreement\McCrometer Purchase Agr-Flowmeters 7-17-23.docx 6 ATTACHMENT A - Heartland Controls QUOTATION ADDRESS: PO Box 705,Frankfort,IL 60423 PHONE: 708-478-5210 FAX: 708-478-5211 URL:www.heartiand-controls.com EMAIL:mike.simon@heartland-controls.com City of Elgin Quotation Date 06/28/23 David Knowles FPI/Mag Flowmeters Our Quotation No. SS6715 Item Quantity Description Price 1 I McCrometer Model 395C-36SNQ025A1 36" Forward Flow Full Profile Insertion FPI $22,556.00 Tag: Riverside 5MGD Parallel 2 1 McCrometer Model 395S-1 8SNQ025A1 18" Forward Flow Full Profile Insertion FPI $9,141.00 Tag: Airlite Raw Well 3 1 McCrometer Model 394C-30SNQ025A1 30" Bi-directional Flow Full Profile Insertion FPI $21,008.00 Tag: Riverside River Train 1 4 2 McCrometer Model 395S-10SNQ025A1 10" Forward Flow Full Profile Insertion (FPI) $9,670.00 Tags: Riverside Washwater Return, Riverside Washwater Return 2 Price: $4,835 each 5 1 McCrometer Model 395S-12SNQ025A1 12" Forward Flow Full Profile Insertion (FPI) $5,897.00 Tag: Airlite Washwater 6 1 McCrometer Model 395S-06SNQ025A1 6" Forward Flow Full Profile Insertion (FPI) $3,892.00 Tag: Airlite Reclaim Water 7 1 McCrometer Model 394C-16SNQ025A1 16" Bi-directional Flow Full Profile Insertion FPI $9,924.00 Ta : Bowes $82,088.00 IF AN ORDER IS TO FOLLOW,PLEASE EMAIL TO: sales(a heartland-controls.corn AND ADDRESS AS: McCrometer,c/o Heartland Controls PO Box 705 Frankfort,IL 60423 PRICES QI10TED HEREIN ARE FIRM FOR 30 DAYS FROM THE ABOVE DATE. DELIVERY 6 weeks PAGE I of 1 F.O.B. Shipping Point TERMS Net 30