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08-203 Resolution No. 08-203 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH SMITH ECOLOGICAL SYSTEMS, INC. FOR SODA ASH BIN REPLACEMENT FOR THE RIVERSIDE WATER TREATMENT PLANT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Olufemi Folarin, City Manager,and Diane Robertson,City Clerk,be and are hereby authorized and directed to execute an agreement on behalf of the City of Elgin with Smith Ecological Systems,Inc. for Soda Ash Bin Replacement for the Riverside Water Treatment Plant,a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: August 27, 2008 Adopted: August 27, 2008 Omnibus Vote: Yeas: 4 Nays: 0 Attest: s/ Diane Robertson Diane Robertson, City Clerk t A CITY OF ELGIN AGREEMENT WITH Smith Ecological Systems, Inc. FOR PURCHASE OF a Soda Ash Tank THIS AGREEMENT is made and entered into this 13th day of August,2008 by and between the City of Elgin("the CITY"),a municipal corporation organized and existing under the laws of the State of Illinois, and Smith Ecological Systems, Inc., an Illinois Corporation, ("the CONTRACTOR"). ARTICLE I. PURCHASE. The CONTRACTOR agrees to provide, and the City agrees to purchase,the goods and/or services provided for herein under the terms and conditions provided for herein and pursuant to Exhibit "A", attached hereto and made a part hereof. ARTICLE II. DEFINITION. "THIS CONTRACT"as used herein shall mean this Agreement, the Request for Proposals (RFP) including all documents referenced therein and the Contractor's Proposal response dated 5/16/08(Proposal)thereto incorporated by reference herein and made a part hereof. The CONTRACTOR agrees to provide the goods and/or services all in accordance with the RFP and CONTRACTOR'S Proposal for the purchase and installation of a 500 gallon tank. In the event there is a conflict between this Agreement and the Proposal documents or any attachments hereto, the Proposal documents shall supersede this Agreement. ARTICLE III. DURATION AND SCHEDULE. The CONTRACTOR shall provide the goods and/or services at the price,schedule and other terms provided for in Exhibit"A"attached hereto and incorporated herein, on or before November 30, 2008. Payment by CITY shall be made to CONTRACTOR within thirty (30) days of delivery as a destination contract and acceptance of all goods and services, and upon receipt of an invoice from CONTRACTOR. The CONTRACTOR shall commence the performance of THIS CONTRACT upon receipt of a fully executed Contract from the City. CONTRACTOR'S performance shall be complete when the CONTRACTOR has delivered all goods and performed all services provided for herein,and CITY has accepted all such goods and services. CONTRACTOR shall complete the delivery,installation and/or all other services provided for herein on or before November 30, 2008. Compensation to the CONTRACTOR shall be in the amount of Thirty two thousand seven hundred seventy-five dollars ($32,575) payable in 1 installment(s) of$32,575. ARTICLE IV. TERMINATION. The following shall constitute events of default under this agreement: a) any material misrepresentation made by the CONTRACTOR to the CITY, b) any failure by the CONTRACTOR to perform any of its obligations under this agreement including,but not limited to, the following: (i) failure to commence performance of this agreement at the time specified in this agreement due to a reason or circumstance within the CONTRACTOR'S reasonable control, (ii) failure to perform this agreement with sufficient personnel and equipment or with sufficient material to ensure the completion of this agreement within the specified time due to a reason or circumstance within the CONTRACTOR'S reasonable control,(iii) failure to perform this agreement in a manner reasonably satisfactory to the CITY, (iv) failure to promptly re-perform within reasonable time the services that were rejected by the CITY as erroneous or unsatisfactory,(v) failure to comply with a material term of this agreement,including,but not limited to the Affirmative I Action requirements, and (vi) any other acts specifically and expressly stated in this agreement as constituting a basis for termination for cause. The CITY may terminate this agreement for its convenience upon fourteen(14) days prior written notice. ARTICLE V. DAMAGES. From any sums due to the CONTRACTOR for goods or services,the CITY may keep for its own the whole or any part of the amount for expenses,losses and damages as directed by the Purchasing Director, incurred by the CITY as a consequence of procuring goods or services as a result of any failure,omission or mistake of the CONTRACTOR in providing goods or services as provided in this agreement. In the event of any breach of any of the terms of this agreement by CITY, CONTRACTOR'S damages shall be limited to a maximum of the purchase price provided for herein, which shall be calculated on the basis of CONTRACTOR'S actual compensatory damages only. CONTRACTOR shall not be entitled to consequential, incidental or nominal damages for any reason. ARTICLE VI. GOVERNING LAW/VENUE AND ORDINANCES. This agreement shall be subject to and governed by the laws of the United States,the State of Illinois and the City of Elgin, 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 in the Circuit Court of Kane County, Illinois. ARTICLE VII. SEVERABILITY.The terms of this agreement shall be severable. In the event any of the terms or provisions of this agreement are deemed to be void or otherwise unenforceable for any reason, including but not limited to any violation of any law as provided for in Article XIV herein, the remainder of this agreement shall remain in full force and effect. ARTICLE VIII. AFFIRMATIVE ACTION. The CONTRACTOR will not discriminate against any employee or applicant for employment because of race, color, religion, sex, ancestry, and national origin,place of birth,age or physical handicap which would not interfere with the efficient performance of the job in question. The contractor will take affirmative action to comply with the provisions of Elgin Municipal Code Section 3.12.100 and will require any subcontractor to submit to the CITY a written commitment to comply with those provisions. The CONTRACTOR will distribute copies of this commitment to all persons who participate in recruitment,screening,referral and selection of job applicants and prospective subcontractors. ARTICLE IX. ASSIGNABILITY. The CONTRACTOR shall not assign, sell or transfer any interest in this agreement without prior written consent of the CITY. ARTICLE X. AMENDMENTS. There shall be no modification of this agreement, except in writing and executed with the same formalities of the original. ARTICLE XI. NOTICES.Any notice given under this agreement shall be in writing and shall be deemed to have been given when hand delivered or deposited in the U.S.mail,certified or registered, return receipt requested,addressed,if to CONTRACTOR,at 3127 Wallin Ave.,Rockford,IL 61101 to the attention of Mitch Berg or undersigned representative,and if to the City,to the attention of the 2 City Manager, 150 Dexter Court, Elgin, IL 60120 or to such other address and/or authorized representatives as either party shall designate in writing to the other in the manner herein provided. ARTICLE XII. INDEMNIFICATION. To the fullest extent permitted by law,CONTRACTOR 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 Contractor or Contractor'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. The provisions of this paragraph shall survive any termination and/or expiration of this agreement. ARTICLE XIII. PUBLICITY. The CONTRACTOR may not use, in any form or medium, the name of the City of Elgin for public advertising unless prior written permission is granted by the CITY. ARTICLE XIV. APPROPRIATIONS.The fiscal year of the CITY is the 12 month period ending December 31. The obligations of the CITY under any contract for any fiscal year are subject to and contingent upon the appropriation of funds sufficient to discharge the obligations which accrue in that fiscal year and authorization to spend such funds for the purposes of the contract. If, for any fiscal year during the term of the CONTRACT, sufficient funds for the discharge of the CITY'S obligations under the contract are not appropriated and authorized, then the CONTRACT shall terminate as of the last day of the preceding fiscal year, or when such appropriated and authorized funds are exhausted, whichever is later, without liability to the CITY for damages, penalties or other charges on account of such termination. ARTICLE XV. COMPLIANCE WITH LAWS. Notwithstanding any other provision of this agreement it is expressly agreed and understood that in connection with the performance of this agreement that the CONTRACTOR shall comply with all applicable U. S. 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, CONTRACTOR hereby certifies, represents and warrants to the CITY that all CONTRACTOR'S employees and/or agents who will be providing products and/or services with respect to this CONTRACT shall be legal residents of the United States. CONTRACTOR 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 the CONTRACTOR to determine CONTRACTOR'S compliance with the provisions of this section. In the event the CITY proceeds with such an audit the CONTRACTOR shall make available to the CITY the CONTRACTOR'S relevant records at no cost to the CITY. ARTICLE XVI. WARRANTY. The CITY'S purchase from the CONTRACTOR as provided in this agreement shall include the standard warranty typically provided by CONTRACTOR for the 3 equipment being purchased herein. Additionally, CONTRACTOR hereby expressly provides a warranty of merchantability as to any goods provided for herein,and warrants that all services shall be provided in a reasonable manner with reasonable workmanship. ARTICLE XVII. ENTIRE AGREEMENT. This agreement embodies the whole agreement between the parties hereto. There are no other agreements,either oral or implied between the parties hereto;and this agreement shall supersede any and all previous communications,representations,or agreements, either verbal or written, between the parties. ARTICLE XVIII. INDEPENDENT CONTRACTOR. This agreement shall not be construed so as to create a joint venture,partnership,employment or other agency relationship between the parties hereto. ARTICLE XIX. TIME. Time is of the essence of this agreement. The person signing this agreement certifies that s/he has been authorized by the CONTRACTOR to execute this agreement on its behalf. IN WITNESS WHEREOF the parties have hereto set their hands the day and year first above written. CONTRACTOR CITY OF ELGIN Q ikeSiden* B 1 B�1>� x/ ��- By [Name and Title City-Maria er FEIN NO. • 3 g±1 0 4 August 7, 2008 TO: Mayor and Members of the City Council FROM: Olufemi Folarin, City Manager Kyla B. Jacobsen, Water System Superintendent SUBJECT: Sole Source Purchase of a Soda Ash Bin Replacement PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to consider a sole source purchase of a soda ash bin replacement for the Riverside Water Treatment Plant. RECOMMENDATION It is recommended that the City Council authorize the sole source purchase of the soda ash bin replacement for the Riverside Water Treatment Plant to Smith Ecological Systems, Inc. in the amount of$32,575. BACKGROUND The City of Elgin utilizes quick pebble lime and soda ash in the treatment of the water. These two chemicals are what constitute the "softening" process. The hardness causing minerals in the water are precipitated (removed) with these chemicals. The soda ash that is used at the Riverside Water Treatment Plant arrives in granular form by the truckload and is kept in overhead bins. It is fed into a gravimetric feeder which dispenses it into a 600 gallon mixing bin at a precise rate to match the treatment requirements. Both the feeder and the mixing bin were from original construction and have exceeded their useful life. The feeder was replaced in 2007. The same system is available from the original manufacturer in an updated, much more corrosion resistant construction. It is recommended that the soda ash mixing unit be replaced with the equivalent system available from Smith Ecological Systems, Inc. Since the bin is made for the specific size and model of feeder and is permanently mounted on the feeder, an exact duplicate of the existing bin needs to be obtained, rendering this a "sole source"purchase. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED None Soda Ash Bin Replacement August 7, 2008 Page 2 FINANCIAL IMPACT The price quotation from Smith Ecological Systems, Inc. of Rockford, IL for the replacement soda ash bin is $32,575. There are sufficient funds budgeted ($60,000) and available ($60,000) in the 2008 Water Fund, account number 401-4002-771.91-46, Capital Replacement — Other Equipment, project number 409719, to cover the cost of the replacement bin. LEGAL IMPACT Approval of this purchase is an exception to the Procurement Ordinance and requires a 2/3 vote by City Council. ALTERNATIVES 1. The City Council may choose to approve the sole source purchase without competition as recommended, and as described and permitted in the Elgin Municipal Code Chapter 5.14. 2. The City Council may choose not to approve the sole source purchase. This is not recommended, and will prevent the Water Department from adequately operating the softening process which will paralyze water treatment. Respectfully submitted for Council consideration. /kbj