2017-119 AGREEMENT FOR
FLYGT PUMPS, PARTS AND REPAIR SERVICES
THIS AGREEMENT, is made and entered ,into this 117tr day of a..-49tW._11
2017, by and between the CITY OF CLERMONT, FLORIDA, a municipal corporation
under the laws of the State of Florida whose address is: 685 W.Montrose Street,Clermont,
Florida, (hereinafter referred to as "CITY"), and XYLEM WATER SOLUTIONS USA,
INC:, whose address is: 2152 Sprint Blvd., Apopka, FL 32703, (hereinafter referred to as
"CONTRACTOR").
WHEREAS, CITY is in need of parts and repair services for Flygt submersible pumps
currently used by City; and
WHEREAS, CONTRACTOR is the only factory authorized service center in the State of
Florida for Flygt submersible pumps; and
WHEREAS, CONTRACTOR is a sole source provider as set forth in CITY's purchasing
policy.
NOW THEREFORE,in consideration of the mutual covenants contained herein,the parties
hereto, agree as follows:
ARTICLE I—SCOPE OF WORK
The CONTRACTOR shall furnish all labor, materials, equipment, machinery, tools,
apparatus, and perform all;of the work, on an as needed and as requested basis and as
described:in Exhibit "A"attached hereto and incorporated herein and shall do everything
required by this Contract.
ARTICLE II—TERM AND TERMINATION
1. This Agreement is to become effective upon execution by both parties,and shall
remain in effect for a period of five (5) years thereafter, unless terminated or
renewed as provided for herein.
2. CITY shall have the right upon fifteen (15) days written notice to
CONTRACTOR to terminate this Agreement with or without cause. In the
event of termination without cause hereunder,CITY shall pay CONTRACTOR
for services provided up to the date of termination.
3. Prior to, or upon completion, of the initial term of this Agreement, CITY shall
have the option to renew this Agreement for three (3) additional twelve (12)
month period(s). Prior to completion of each exercised Agreement term, the
City may consider an adjustment to price based on changes on the U.S. Bureau
of Statistics, Employment Cost Index (ECI) for the most recent twelve (12)
month period (see www.bls.gov/eci/ Current Edition). It is the
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CONTRACTOR's responsibility to request in writing any price adjustment
under this provision. The CONTRACTOR's written request for adjustment
should be submitted sixty (60) days prior to the anniversary date of the
Agreement. The CONTRACTOR adjustment request must clearly substantiate
the requested increase. The written request for adjustment should not be in
excess of the relevant price index change. If no adjustment request is received
from the CONTRACTOR,the CITY will assume that the contractor 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 applicable.
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 Agreement beyond the
initial period,and any option subsequently exercised,is a CITY exclusive right,
and not a right of the CONTRACTOR. This option right will be exercised only
when such continuation is clearly in the best interest of the CITY.
ARTICLE III—THE CONTRACT SUM
The CITY shall pay to the CONTRACTOR, for the faithful performance of the Contract
as set forth in the contract documents and the Unit Price Schedule, attached hereto and
incorporated herein as Exhibit"A".
ARTICLE IV—COMMENCEMENT AND COMPLETION OF WORK
1. The CONTRACTOR shall only be authorized to,and shall,commence work within
ten (10) calendar days after receipt of a Purchase Order, and shall provide the
services within ten(10)days of repair approval from CITY.
2. The CONTRACTOR shall perform all services in a diligent and professional
manner an in accordance with all applicable laws. CONTRACTOR further agrees
to provide a five (5) year complete warranty on all new pumps supplied, a one (1)
year complete warranty on all parts installed and a one (1) year warranty on all
labor/material.
3. Any ambiguity or uncertainty in the Specifications contained in"Exhibit"A" shall
be interpreted and construed by the CITY's representative and his decision shall be
final and binding upon all parties.
4. It is distinctly understood and agreed that the passing, approval and/or acceptance
of any part of the work or material by the CITY or by any agent or representative
as in compliance with the terms of this Contract and/or the Specifications covering
said work shall not operate as a waiver by the CITY of strict compliance with the
terms of this Contract and/or the Specifications covering said work; and the CITY
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may require the CONTRACTOR and/or his Surety to redo any service provided to
comply strictly and in all things with this Contract and the Specifications.
ARTICLE V—PAYMENTS
In accordance with the provisions fully set forth in the Contract Documents,
CONTRACTOR shall submit an invoice to CITY upon completion of the services and
delivery to CITY as set forth in the applicable purchase order. CITY shall make payment
to the CONTRACTOR for all accepted and undisputed services provided, within thirty
(30)calendar days of receipt of the invoice. CONTRACTOR shall not bill CITY until the
work authorized in the Purchase Order has been completed.
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 CONTRACTOR 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—INSURANCE AND INDEMNIFICATION RIDER
1. Worker's Compensation Insurance - The CONTRACTOR shall take out and
maintain during the life of this Agreement Worker's Compensation Insurance for all his
employees connected with the work of this Project and, in case any work is sublet, the
CONTRACTOR shall require the subcontractor similarly to provide Worker's
Compensation Insurance for all of the latter's employees unless such employees are
covered by the protection afforded by the CONTRACTOR. Such insurance shall comply
with the Florida Worker's Compensation Law. In case any class of employees engaged in
hazardous work under this Agreement at the site of the Project is not protected under
the Worker's Compensation statute,the CONTRACTOR shall provide adequate insurance,
satisfactory to the CITY, for the protection of employees not otherwise protected.
2. CONTRACTOR's Public Liability and Property Damage Insurance - The
Contactor shall take out and maintain during the life of this Agreement Comprehensive
General Liability and Comprehensive Automobile Liability Insurance as shall protect it
from claims for damage for personal injury, including accidental death, as well as claims
for property damages which may arise from operating under this Agreement whether such
operations are by itself or by anyone directly or indirectly employed by it, and the amount
of such insurance shall be minimum limits as follows:
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(a) CONTRACTOR's Comprehensive General, $1,000,000 Each
($2,000,000 aggregate)
Liability Coverages, Bodily Injury Occurrence, & Property Damage
Combined Single Limit
(b) Automobile Liability Coverages, $1,000,000 Each
Bodily Injury&Property Damage Occurrence,
Combined Single Limit
Insurance clause for both BODILY INJURY AND PROPERTY DAMAGE
shall be amended to provide coverage on an occurrence basis.
3. Indemnification Rider
(a) To cover to the fullest extent permitted by law, the CONTRACTOR
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 CONTRACTOR, any subcontractor,
anyone directly or indirectly employed by any of them or anyone for
whose acts any of them may be liable, regardless of whether or not it is
caused in part by a party indemnified hereunder. 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.
(b) In any and all claims against the CITY or any of its agents or employees
by any employee of the CONTRACTOR, any subcontractor, anyone
directly or indirectly employed by any of them or anyone for whose acts
any of them may be liable, the indemnification obligations under this
Paragraph shall not be limited in any way by any limitation on the
amount or type of damages, compensation or benefits payable by or for
the CONTRACTOR or any subcontractor under workers'or workmen's
compensation acts,disability benefit acts or other employee benefit acts.
(c) The CONTRACTOR hereby acknowledges receipt of ten dollars and
other good and valuable consideration from the CITY for the
indemnification provided herein.
(d) Contractor's indemnification shall apply to the proportionate extent that
such actions, claims, demands, proceedings, losses and expenses were
caused by the Contractor. It is the expressed intention of the parties,
that each of them shall be liable for the consequences of their own
negligent acts or omissions whether those acts or omission are the sole,
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*****TO REPLACE INDEMNIFICATION RIDER ITEM (d)
(d) Contractor's indemnification shall apply to the proportionate extent that such actions, claims,
demands, proceedings, losses and expenses were caused by the Contractor. It is the expressed
intention of the parties,that each of them shall be liable for the consequences of their own negligent
acts or omissions whether those acts or omission are the sole,joint, on concurring causes of any claims,
demands, proceedings, losses or other liabilities.
City and Contractor waive against each other, and against the other's officers, directors, members,
partners, and employees any and all claims for or entitlement to special, incidental, indirect, punitive, or
consequential damages arising out of, resulting from,or related to the Contract. The parties further
agree that the total liability of each party to the other for claims,costs, losses, and damages arising from
this Contract shall be limited to the amount established in the Agreement as the Contract Price. The
terms of this overall Limitation of Liability do not apply to or limit any claim by either party against the
other based on the following: (a) costs, losses, or damages asserted by third parties for bodily injury,
sickness, disease, or death, or to injury to or destruction of the tangible property; or(b)gross negligence
or willful misconduct.
Provided, however,that nothing contained in this agreement and specifically in this section 3(d)shall act
as or be construed s a waiver of any sovereign immunity that the City may enioy as a matter of law.
joint, on concurring causes of any claims,demands,proceedings,losses
or other liabilities.
City and Contractor waive against each other, and against the other's
officers,directors,members,partners,and employees any and all claims
for or entitlement to special, incidental, indirect, punitive, or
consequential damages arising out of, resulting from, or related to the
Contract. The parties further agree that the total liability of each party
to the other for claims, costs, losses, and damages arising from this
Contract shall be limited to the amount established in the Agreement as
the Contract Price. The terms of this overall Limitation of Liability do
not apply to or limit any claim by either party against the other based on
the following: (a) costs, losses, or damages asserted by third parties for
bodily injury, sickness, disease, or death, or to injury to or destruction
of the tangible property; or(b) gross negligence or willful misconduct
Provided, however, that nothing contained in this agreement and
specifically in this section 3(d) shall act as or be construed as a waiver
of any sovereign immunity that the City may enjoy as a matter of law.
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.
CONTRACTOR: Xylem Water Solutions USA, Inc.
2152 Sprint Blvd.
Apopka, FL 32703
Attn: Frank Jones, Southeast Regional Mgr.
CITY: City of Clermont
Attn: Darren Gray, City Manager
685 W. Montrose Street
Clermont, FL 34711
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
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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 CONTRACTOR.
6. Assignment. Except in the event of merger, consolidation, or other change of
control pursuant to the sale of all or substantially all of either party's assets, this
Agreement is personal to the parties hereto and may not be assigned by
CONTRACTOR, 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. Public Records. Contractor expressly understands records associated with this
project are public records and agrees to comply with Florida's Public Records law,
to include, to:
(a) Keep and maintain public records that ordinarily and necessarily would be
required by the CITY in order to perform the services contemplated herein.
(b) Provide the public with access to public records on the same terms and
conditions that the CITY would provide the records and at a cost that does
not exceed the cost provided in this Florida's Public Records law or as
otherwise provided by law.
(c) Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as
authorized by law.
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(d) Meet all requirements for retaining public records and transfer, at no cost,
to the CITY all public records in possession of CONTRACTOR upon
termination of the contract and destroy any duplicate public records that are
exempt or confidential and exempt from public records disclosure
requirements. CONTRACTOR shall use reasonable efforts to provide all
records stored electronically must be provided to the CITY in a format that
is compatible with the information technology systems of the CITY.
(e) IF CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS CONTRACT, CONTRACTOR SHALL
CONTACT THE CITY'S CUSTODIAN OF PUBLIC RECORDS AT
CITY CLERK'S OFFICE, (352) 241-7331.
ARTICLE X-AGREEMENT DOCUMENTS
The Agreement Documents, as listed below are herein made fully a part of this Agreement
as if herein repeated.
Document Precedence:
1. This Agreement
2. Purchase Order
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
this /4Tday of (3C t Y' .,2017.
City of rmont
Gail L. Ash, Mayor
Attest:
� t-
Tracy Ackroyd Howe, City Clerk
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XYLEM WATER SOLUTIONS USA, INC.
OPP
By: /�' -
(Silts,. re)
r _ •
(Name &Title Printed or Typed)
Attest.
Corpora ecretary
(Name Printed or Typed)
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EXHIBIT A
xylem Xylem Water Solutions USA, Inc.
2Products
2152 Sprint Blvd.Apopka Florida 32703
Let's Solve Water Phone:407-880-2900•Fax:407-880-2982
FLYGT PUMPS,PARTS,&REPAIRS
Pricing discount from list:
Pumps-5%per published price list.
Parts -5%per published pric list.e
Location of Parts and Repair Facility: Apopka,FL.
Parts will be delivered/shipped within 30 days ARO.
Pumps will be repaired within a maximum of 10 days after repair approval and receipt of parts.
Contact person for new pump sales: Scott Rachal
Contact person for new pump delivery: Stephen Toolsie
Contact person for parts delivery/inquiry: Dave Moffitt
Contact person for pump repairs: Dave Moffitt
After hours Emergency: 407-880-2900
Warranty:
New Pump: 5 year pro-rated warranty
Parts we install: 1 year
Repairs labor/material: lyear
EXHIBIT A HOURLY PRICING SCHEDULE
TASK FLYGT
FIELD SERVICE M-F 8-5 $131
FIELD SERVICE OVERTIME $200
FIELD SERVICE WEEKENDS & HOLIDAYS $225
SHOP RATE M-F 8-5 $95
SHOP RATE OVERTIME $145
SHOP RATE SUNDAYS & HOLIDAYS $190
FLYG
a xylem brand
•
xylem Xylem Water Solutions USA, Inc.
Flygt Products
Let's Solve Water
Phone:407-880-2900-rint Blvd. Floridaopka
• ax:407-880-2982
FLYGT
MISCELLANEOUS/ ENVIRONMENTAL FEES
PUMP MATERIAL& LUBE ENVIRONMENTAL
3067,3068,3085,3102&3127 $32 $40
3140,3152,3153,3170,3171,3201 &3202 $46 $62
3300,3305,3306,3311/12,3350/55&3356 $74 $81
3400,3500/600,3501,3530,3601 &3602 $74 $81
4351/52,4400,4610/20/30/40 $74 $81
4650/60&4670/80 $74 $81
5150/60 $74 $81
7050/55,7060/61,7075/80,7100/15&7120/40 $74 $81
•
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FLYGT
a xylem brand