Loading...
2012-46 SUPPLIER AGREEMENT FOR THIOGUARD CHEMICAL FOR WASTEWATER COLLECTION SYSTEMS THIS AGREEMENT, made and entered into this a_ day of SCA -r1. 2012, A.D., by and between the City of Clermont 685 West Montrose Street, Clermont, Florida (hereinafter referred to as "CITY "), and PREMIER MAGNESIA, LLC, 300 Barr Harbor Drive, Suite 250, West Conshohocken, PA 19428 -2998, (hereinafter referred to as "SUPPLIER "). WHEREAS, CITY has utilized THIOGUARD® Magnesium Hydroxide (herein referred to as Thioguard) as a treatment chemical for its wastewater collection systems; WHEREAS, Thioguard is a proprietary product and is only available from SUPPLIER; and WHEREAS, the City Council has determined that there is only one source for the required product in accordance with City of Clermont Purchasing Policy, Section E.7. WITNESSETH: That the parties hereto, for the consideration hereinafter set forth, mutually agree as follows: ARTICLE I - SCOPE OF WORK The SUPPLIER shall furnish Thioguard in such quantities as requested by CITY and as set forth in a purchase order as provided in writing by CITY. Provided, however, that nothing herein shall require CITY to purchase or acquire any items or services from SUPPLIER. The scope of work includes the use of three (3) SUPPLIER owned feed units. Any additional feed units will be purchased by the CITY or result in a monthly fee for each additional feed unit. ARTICLE II - THE CONTRACT SUM CITY shall pay SUPPLIER, for the faithful performance of the Agreement as set forth in the Unit Price Schedule set forth in Exhibit 'A', attached hereto and incorporated herein. The CITY understands that the unit price in Exhibit `A' depends on a base usage of product equal to or greater than Thioguard purchases in 2011. Use of a lesser quantity will also become a factor in annual price adjustment negotiations. ARTICLE III - TERM AND TERMINATION 1. This Agreement is to become effective upon execution by both parties, and shall remain in effect for the initial term of one (1) year, unless terminated as provided for herein. 2. Prior to, or upon completion, of the initial term of this contract, the City shall have the option to renew this contract for four additional twelve (12) month 1 period(s) subject to a price adjustment at SUPPLIER's option. Prior to completion of the contract term, the City may consider an adjustment to price based the SUPPLIER's responsibility to request in writing any price adjustment under this provision. The SUPPLIER's written request for adjustment shall be submitted sixty (60) days prior to the termination of the initial or any renewal term of this Agreement. If no adjustment request is received from the contractor, CITY shall be entitled to assume that the SUPPLIER has agreed that the optional term may be exercised without price adjustment. Any adjustment request received after the commencement of a new option period shall not be considered. The City reserves the right to reject any written price adjustments submitted by the contractor and/or to not exercise any otherwise available option period based on such price adjustments. Continuation of the contract beyond the initial period, and any option subsequently exercised, is a City prerogative, and not a right of the SUPPLIER. This prerogative will be exercised only when such continuation is clearly in the best interest of the City. 3. Notwithstanding any other provision of this Agreement, CITY or SUPPLIER may, upon written notice to SUPPLIER or CITY, terminate this Agreement if: a) without cause and for convenience upon sixty (60) days written notice to SUPPLIER or CITY, b) SUPPLIER or CITY is adjudged to be bankrupt; c) SUPPLIER or CITY makes a general assignment for the benefit of its creditors; d) SUPPLIER or CITY fails to comply with any of the conditions of provisions of this Agreement; or e) SUPPLIER or CITY is experiencing a labor dispute, which threatens to have a substantial, adverse impact upon performance . of this Agreement, without prejudice to any other right or remedy CITY may have under this Agreement. In the event of such termination, CITY shall be liable only for the payment of all unpaid charges, determined in accordance with the provisions of this Agreement, for work, properly performed and accepted prior to the effective date of termination. ARTICLE IV - COMMENCEMENT AND COMPLETION OF WORK The SUPPLIER shall provide all items only upon issuance of an authorized and approved purchase order and in the timeframe as set forth in the applicable purchase order. ARTICLE V - PAYMENTS In accordance with the provisions fully set forth in the General Conditions, SUPPLIER shall submit a payment request by the third (3rd) day of each calendar month for items provided during the preceding calendar month. CITY shall make payment to the SUPPLIER, within thirty (30) calendar days, on the basis of a duly certified and approved payment invoice by the CITY for items provided and accepted by the CITY. 2 ARTICLE VI — DISPUTE RESOLUTION - MEDIATION 1. Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to voluntary arbitration or the institution of legal or equitable proceedings by either party. 2. The CITY and SUPPLIER shall endeavor to resolve claims, disputes and other matters in question between them by mediation. 3. The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in Clermont, Lake County, Florida, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof ARTICLE VII — INDEMNIFICATION RIDER To cover to the fullest extent permitted by law, the SUPPLIER shall indemnify and hold harmless the CITY and its agents and employees from and against all claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (1) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) , and (2) is caused in whole or in part by any negligent act or omission of the SUPPLIER or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right to obligation of indemnity which would otherwise exist as to any party or person described in this Article. The SUPPLIER hereby acknowledges receipt of ten dollars and other good and valuable consideration from the CITY for the indemnification provided herein. ARTICLE VIII - NOTICES All notices shall be in writing and sent by United States mail, certified or registered, with return receipt requested and postage prepaid, or by nationally recognized overnight courier service to the address of the party set forth below. Any such notice shall be deemed given when received by the party to whom it is intended. SUPPLIER: Premier Magnesia, LLC. 300 Barr Harbor Drive, Suite 250 West Conshohocken, PA 19428 -2998 CITY: City of Clermont Attn: Wayne Saunders, City Manager 685 W. Montrose Street Clermont, FL 34711 3 ARTICLE IX — MISCELLANEOUS 1. Attorneys' Fees. In the event a suit or action is instituted to enforce or interpret any provision of this agreement, the prevailing party shall be entitled to recover such sum as the Court may adjudge reasonable as attorneys' fees at trial or on any appeal, in addition to all other sums provided by law. 2. Waiver. The waiver by city of breach of any provision of this agreement shall not be construed or operate as a waiver of any subsequent breach of such provision or of such provision itself and shall in no way affect the enforcement of any other provisions of this agreement. 3. Severability. If any provision of this agreement or the application thereof to any person or circumstance is to any extent invalid or unenforceable, such provision, or part thereof, shall be deleted or modified in such a manner as to make the agreement valid and enforceable under applicable law, the remainder of this agreement and the application of such a provision to other persons or circumstances shall be unaffected, and this agreement shall be valid and enforceable to the fullest extent permitted by applicable law. 4. Amendment. Except for as otherwise provided herein, this agreement may not be modified or amended except by an agreement in writing signed by both parties. 5. Entire Agreement. This agreement including the documents incorporated by reference contains the entire understanding of the parties hereto and supersedes all prior and contemporaneous agreements between the parties with respect to the performance of services by SUPPLIER. 6. Assignment. This agreement is personal to the parties hereto and may not be assigned by SUPPLIER, in whole or in part, without the prior written consent of city. 7. Venue. The parties agree that the sole and exclusive venue for any cause of action arising out of this agreement shall be Lake County, Florida. 8. Applicable Law. This agreement and any amendments hereto are executed and delivered in the State of Florida and shall be governed, interpreted, construed and enforced in accordance with the laws of the State of Florida. 9. Records. SUPPLIER expressly understands and acknowledges that any and all documents related to the services provided herein, may be considered records that are subject to examination and production in accordance with Florida's Public Records Law. SUPPLIER expressly agrees that it will comply with all requirements related to said law and that it will hold CITY harmless, including 4 attorney fees and litigation costs, for any such disclosure related to Florida's Public Records Law. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this 00 day of 2012. City of Cl- -- 1 1111SM Harold S. Turville, Jr., May7 . Attest: Tracy Ac . yd, City ClerkV ./, l �° ittiR��a�s.. Premier Magnesia, LLC By: _ , Printed Name and Title 5 EXHIBIT "A" UNIT PRICE SCHEDULE For orders placed and delivered before September 30, 2012 - $2.35 per gallon of Thioguard, FOB Delivered, subject to any additional fuel surcharge actually incurred by SUPPLIER, such surcharge to be separately identified on the invoices. For orders placed after September 30, 2012 - $2.45 per gallon of Thioguard, FOB Delivered, subject to any additional fuel surcharge actually incurred by SUPPLIER, such surcharge to be separately identified on the invoices. 6