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2007-184ORDINANCE NO. ,~07 /~`~ AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THE EXPENDITURE OF FUNDS FOR THE PURCHASE OF UNDERDRAINS FOR PECAN CREEK WATER RECLAMATION PLANT FROM INFILCO DEGREMONT, INC., WHICH IS AVAILABLE FROM AVAILABLE FROM ONLY ONE SOURCE IN ACCORDANCE WITH THE PERTINENT PROVISIONS OF THE CHAPTER 252 OP THE TEXAS LOCAL GOVERNMENT CODE EXEMPTING SUCH PURCHASES FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 3884-UNDERDRAIN SYSTEMS FOR PECAN CREEK WATER RECLAMATION PLANT FILTERS 1 AND 2 IN THE AMOUNT OF $259,000). WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including; items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following purchase of materials, equipment or supplies, as described in the "File" listed hereon, and on file in the office of the Purchasing Agent, and the license terms attached are hereby approved: FILE NUMBER VENDOR AMOUNT 3884 Tnfilco Degremont, Inc. $259,000 SECTION 2. The acceptance .and approval of the above items shall not constitute a contract' between the City and the person submitting the quotation for such items until such person shall comply with' all requirements specified by the Purchasing Department. SECTION 3. The City Manager is hereby authorized to execute any contracts relating to the items specified in Section 1 and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the ~ day of (~e~,~`~' 2007. Qrn~~~ PERK . McNEILL, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, CITY ATTORNEY BY: 3-0R - 3884 Infiko Degremont __ -- - - s~/~:z Infilco Degremont Inc. ("IDI") CONDITIONS OF SALE 1. ENTIRE AGREEMENT. The Terms and Conditions of Sale set forth herein, and any supplements which may be attached hereto, constitute the full and final expression of the contract (the "Contract") for the sale of equipment or services (hereinafter referred to as "Equipment") Purchaser, and supersedes [he terms and conditions of any request for proposal or request for quotations, specifcations, quotations, purchase orders, correspondence or communications whether written or oral between the Purchaser and IDI. No amendment or modification hereto nor any statement, representation or warranty not contained herein shall be binding on IDI unless made in;writing and signed by an authorized representative of IDI. Prior dealings, usage of the trade or a course of performance shall not be relevant to determine the meaning of this Contract. 2. TAXES. The Purchase Price does not include any state or local sales or use taxes. 3. PAYMENT. Payment shall be net thirty (30) days in accordance with the milestone payment schedule set forth in IDI's proposal. 4. RISK OF LOSS. Risk of loss or damage to the Equipment, or any part thereof, shall pass to Purchaser upon delivery of the Equipment or part to Purchaser at the delivery point stated in IDI's proposal. 5. EXCUSABLE DELAY. IDI shall not be liable for any delay in performance or failure to perform due to any cause beyond IDI's reasonable control including, fire, flood, or any other act of God, strike or other labor difficulty, any act, instructions, directionsor omission to act of any civil or military authority or of the Purchaser, Owner, or Engineer, change in laws, any insurrection, riot, embargo, unavailability or delays in transportation or car shortages. In the event IDI's performance is delayed by any of the foregoing causes, IDI's schedule for performance shall be extended accordingly without penalty. If Purchaser's, Owner's, or Engineer's actions delay IDI's performance, Purchaser shall pay IDI any additional costs incurred by IDI resulting from such delay and shall also pay IDI's, invoice for any stored Equipment, or any part thereof, as if they had been.delivered in accordance with the milestone schedule. 6. PROPRIETARY INFORMATION. All information, plans, drawings, tracings, specifications, programs, reports, models,'mock-ups, designs, calculations, schedules, technical information, data, manuals, proposals, CADD documents and other materials, including those in electronic form (collectively the "Instruments of Service") prepared and furnished by IDI for use solely with respect to this Project. IDI shall be deemed the author and owner of these Instruments of Service and shall retain all common law, statutory and gther reserved rights, including copyrights. The Purchaser, Engineer, or Owner shall not use these Instruments of Service for future"additions or alterations to this Project or for other projects, without the prior written agreement by IDI. The Instruments of Service furnished by IDI are proprietary to IDI, submitted in strict confidence and shall not be reproduced, transmitted, disclosed or used in any other manner without IDI's written authorization. ' 7. INSPECTION BY PURCHASER. Purchaser may inspect the Equipment at the point of manufacture, provided that such inspection is arranged and conducted so as not to unreasonably interfere with IDI's or the manufacturers operations. n 8. WARRANTY OF TITLE. IDI warrants and guarantees that upon payment title to all Equipment covered by any invoice submitted to Purchaser will pass to Purchaser free and clear of all liens. 9. WARRANTY. IDI warrants that its Equipment shall conform to the description contained in IDI's proposal and be free from defects in material and workmanship for a period of one (1) year from date its Equipment is initially placed in operation or eighteen (18) months from date its Equipment is shipped, whichever occurs first. Upon IDI's receipt of written notice within thirty (30) days of discovery of`any defect, and a determination by IDI that such defect is covered under the foregoing warranty, IDI shall, at its option, repair or replace the defective part or parts, f.o.b. factory. This warranty does not cover failure or damage due to storage, installation, operation or maintenance not in conformance with IDI's written instructions and requirements or due to accident, misuse, abuse, neglect or corrosion. This warranty does not cover reimbursement for labor, gaining access, removal, installation, temporary power or any other expenses that may be ircurred with repair or replacement. IDI shall have no responsibility for the condition of primed or finish painted surfaces after the Equipment leaves its point of manufacture. Field touch-up of shop primed or painted surfaces are normal and shall be at Purchaser's or Owner's expense. Unless otherwise specifically provided for herein, IDI provides no other of product performance or process results. Correction of non- conformities in the manner and for the period of time provided above shall constitute IDI's sole liability and purchaser's exclusive'remedyfior failure of IDI to meet its warranty obligations, whether claims of purchaser are based in contract, tort (including negligence or strict liability), or otherwise. THE FOREGOING WARRANTIES ARE EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 10. BACKCHARGES. IDI shall not be liable for any charges incurred by Purchaser for work, repairs, replacements or alterations to the Equipment, without IDI's prior written authorization, and any' adverse consequences resulting from such unauthorized work' shall be Purchasers full responsibility. 11. LIQUIDATED DAMAGES. Any liquidated damages clauses for failure to meet shipping or job completion promises are not`acceptable or binding upon IDI, unless such clauses are specifcally accepted in writing by an authorized representative of IDI at its headquarters office. ?~lnfrlcoDegremont 'Y __ • ~~r~z 12. LIMITATION OF LIABILITY. Neither party shall be liable to the other party for any special, indirect, incidental, consequential or punitive damages arising from their obligations under this Contract, whether such damages are based upon breach of contract, breach of warranty, tort, strict liability or otherwise. In no event shall IDI's liability exceed the purchase price of the Equipment or.: parts of the Equipment on which such liability is based. 13. CANCELLATION BY PURCHASER. If Purchaser cancels this Contract or refuses to accept delivery of the Equipment, Purchaser shall be liable to IDI for reasonable costs incurred by IDI including, cancellation charges, administrative costs, and commissions to sales representatives for all work performed or in process up to the time of cancellation or refusal to accept delivery. 14. DEFAULT BY PURCHASER. In the event Purchaser should breach its obligations under this Contract or if the Project is.suspended or delayed far more than 120 cumulative days, then IDI may, without prejudice to any other right or remedy it may have at law or equity, terminate this Contract or suspend performance if Purchaser fails to cure such breach within thirty (30) days of written notice. In such event, IDI shall be paid for all work performed prior to termination/suspension, including all costs related to the termination/suspension. If payments are not made in accordance with the terms contained herein, a service charge may, without prejudice to the right of IDI to immediate payment, be added in an amount equal to the lower of 1.5% per month or fraction thereof or the highest legal rate on the unpaid balance. Purchaser shall reimburse IDI for all attorney's fees and costs related to collection of past due amounts. , 15. DEFAULT BY SELLER. In the event of any default by IDI and prior to Purchaser terminating the work for default, Purchaser shall give written notice of default to IDI. IDI shall remedy the default to the reasonable satisfaction of the Purchaser within thirty:(30) days of receipt of such written notice or, if such default cannot reasonable be remedied within such thirty (30) day period, IDI shall promptly begin to remedy the default within the thirty (30) day period and thereafter diligently prosecute to conclusion all acts necessary to remedy the default, in which event such default shall be deemed to be remedied. 16. PATENT AND COPYRIGHT INFRINGEMENT. IDI shall defend any action or proceeding brought against Purchaser tiased on any claim that the Equipment infringes any United States patent or copyright, provided the Equipment is used in the manner specified and is not modified, altered, or combined with any other equipment without IDI's prior written permission. Purchaser shall give prompt written notice to IDI of any such action or proceeding and will reasonably provide authority, information and assistance (at Purchaser's expense) in the defense of same. If Purchaser is enjoined from the operation or use of the Equipment, IDI shall take reasonable steps to procure the right to operate or use the Equipment. If IDI cannot so procure such right within a reasonable time, IDI shall promptly, at'IDI's option and expense, (i) modify the Equipment so as to avoid infringement of any such patent or copyright, (ii) replace said Equipment with equipment that does not infringe or violate any such patent or copyright, or (iii) as a last resort, remove the Equipment and refund the purchase price. 17. INDEMNITY. To the extent and proportion of its negligence, IDI will indemnify and hold Purchaser harmless for any claims, damages, suits, or losses by third parties for death or bodily injury or damage to tangible property (other than to the Equipment itself) directly caused by IDI's performance under this Contract. 18. GOVERNING LAW/JURISDICTION. This Contract shall be governed by, interpreted and enforced in accordance with the laws applicable in the state where the jobsite is located, without regard to any conflicts of law principles thereof. Any dispute that cannot be resolved amicably by the Parties shall be referred to the federal or state courts having jurisdiction over the jobsite. ,The Parties irrevocably waive the right to request trial by jury. '~~" ~. 19. NOTICES. Unless otherwise provided, any notices to be given hereunder shall be given in writing at the address and to the representatives mentioned in the Contract Documents and shall be deemed effectively given (i) upon personal delivery to the,.party to be notified, (ii) on confirmation of receipt by fax by the party to be notified, (iii) one business day after deposit with a reputalile overnight courier, prepaid for overnight delivery and addressed as set forth herein, or (iv) three days after deposit with the U.S Post Office, postage prepaid, registered or certified, with return receipt requested. 20. ASSIGNMENT/SUCCESSORSHIP. Neither IDI nor Purchaser may assign this Contract without the prior written consent.of the other party, which consent shall not be unreasonably withheld or delayed. Any prohibited assignment shall be null and voitl. IDI and Purchaser intend that the provisions of this Contract are binding upon the parties, their employees, agents, heirs, successors and assigns. ~'I 21. SEVERABILITY. If any term, condition or provision of this Contract or the application thereof to any party or circumstance shall at any time or to any extent be invalid or unenforceable, then the remainder of this Contract, or the application of such term, condition or provision to parties or circumstances other than those which it is held invalid or unenforceable, shall not be affected thereby;' and each term, condition and provision of this Contract shall be valid and enforceable to the fullest extent permitted by law. 22. NO WAIVER. The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Contract or to exercise any right under this Contract shall not be construed as a waiver or relinquishment to any extent of sucFiparty's right to assert or rely upon any such provision or right in that or: any other instance; rather, the same shall be and remain in full force and effect. `I i+ -,,. .r>~,:. Infiko Degremont CONDITIONS OF FIELD SERVICE If this Contract does not include Field Service or if Purchaser requires such service in addition to that included in this Contract, Purchaser may purchase from IDI such Field Service or technical advice dudng installation or start-up of the Products, in which case Purchaser agrees to pay IDI for Work Time, Travel Time and Standby Time based on (I) IDI's "per diem" rates in effect at the time the service is performed; (2) the ezpenses: of each IDI employee so furnished; and (3) the terms and conditions under which such service is performed. ,,, "PER DIEM" CHARGES FOR SERVICE The following rates are currently in effect. They are subject to change by IDI and are based on the definitions below. These rates are fordomestic service only. Rates for service outside the Continental United States will be quoted upon request. Classification of Serviceman STANDARD SERVICE TIME DEFINITIONS (a) Work Time -shall include all hours that IDI service personnel are on Purchaser's job site, either working or ready for work, and shall be payable at the applicable specified rates. (b) Travel Time -shall include the time spent by IDI service personnel in traveling between their customary headquarters and Purchaser's job site and in returning (including travel occurring on Saturdays, Sundays and holidays) up to a maximum of eight (8) hours chargeable time for any given one-way trip. Travel Time shall be paid for at the applicable Straight Time Rate and shall not be cumulative with Work Time in determining Overtime. (c) Standby Time -shall include all time (excluding Work Time) that IDI service personnel are available for work at Purchasers job site, whether on the job site or not, up to a maximum of eight (8) hours per day, between the hours of 7:00 a.m. and 6:00 p.m., Sunday through Saturday, including holidays if availability has been requested by Purchaser. Standby Time shall be paid for at the applicable Straight Time Rate; however, Standby Time preceded and/or followed by Work Time is cumulative in determining Overtime. RATE DEFINITIONS (a) Straight Time Rate -This rate shall be paid for Work Time, Standby Time or Travel Time on a regular schedule of eight (8) hours per day, Monday through Friday. (b) Time and One-Half Rate -The rate of one and half (I-I/2) times the Straight Time Rate shall be paid for any Work Time or Standby Time in excess of eight (8) hours, but not exceeding sixteen (16) hours, per day, Monday through Friday, and for any Work Time or Standby Time on Saturdays, not to exceed sixteen (16) hours. (c) Double Time Rate -The rate of twice the Straight Time rates shall be paid far time worked in excess of sixteen (16) hours per day, without a six (6) hour break, Monday through Saturday, and for all time worked on Sundays and holidays. Holidays shall be those observed in the~locelity where the work is to be performed. , Straight Time Rate $ 1500.00 Per day; $ Per $ Per ' r* CHARGES FOR EXPENSES In addition to the "Per Diem" charges above, Purchaser shall pay IDI for all the traveling and living expenses and all other ezpenses of each IDI employee incidental to the work. ',~ TERMS AND CONDITIONS (I) Notification -Purchaser shall give IDI at least two (2) weeks advance notice when ordedng Field Service. (2) Terms of Payment -Purchaser shall pay IDI immediately upon receipt of invoices covering the time and ezpenses of IDI's employees furnished for such services. OVERDUE PAYMENTS NOT RECEIVED BY IDI WITHIN THIRTY (30) DAYS FROM DATE OF INVOICE SHALL BE SUBJECT TO FINANCE CHARGES AT THE RATE OF ONE AND ONE-HALF PERCENT (I-I/2%) PER MONTH. (3) Time Sheets -IDI employees shall present Purchasedat the end of each week or al the completion of the job if less than one (I) week, appropriate documents on which shall be indicated the number of hours spent and the estimated expense incurred on this work: Purchaser shall sign these documents in the place indicated, thus signifying approval of the time spent and estimated expense incirred on this work. (4) Delays - If the work of an IDI employee is postponed or suspended by Purchaser, or is delayed or does not proceed witFi ~~ reasonable dispatch, due to no fault of IDI, IDI may withdraw such employee and return a serviceman to the job when needed and available; and any additional costs (including Travel Time and expenses) incurred by IDI because of this shall be an additional charge to Purchases, (5) Limitation of Liability -IDI in providing any Field Service hereunder, shall do so in an advisory capacity only and shall .not be held responsible in any way for the acts, workmanship or omissions of the employees, contractors, sub-centractors or agents of Purchaser. IDI SHALL NOT BE LIABLE IN ANY EVENT FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGE. ~.; Proposal No. 50073515.01 Rev C Date: 8/6/07 Page 5 r P. i,. Infiko Degremont ~~' sti/~z ; PURCHASE PRICE: Two Hundred And Fifty Nine Thousand Dollars ~,.. (exclusive of taxes per Condition 2 of IDI Conditions of Sale) Total Dollars ($ 259,000.00) Pricing is valid for 60 days from the date of this proposal. After such date, pricing is subject to the Producer Price Index, calculated from the original proposal/bid date. In addition for steel,stainless steel components the pricing is subject to the London Metal exchange index for steel stainless steel finished products, stainless steel rolled coil calculated from the original proposal/bid date. FOB Jobsite TERMS OF PAYMENT (as follows, subject to Condition 3 of IDI Conditions of Sale): 10% Net Cash, Payable in thirty(30) days from date of submittal of initial drawings for approval; ~i: 85% Net Cash, Payable in progress payments thirty (30) days from dates of respective shipments of the Products; 3 5% Net Cash, Payable in thirty (30) days from Product installation and acceptance or Ninety (90) days after date of final Product ,,~. delivery, whichever occurs first. SERVICE: Field Service included in this Contract shall be provided for a period not to exceed "eight-hour man; days provided in not more than " ~ trips to check the completed installation by Purchaser, to place the Products in !~ operation and to instruct Purchaser in their operation. Purchaser agrees to pay IDI for any additional service days and/or trips in accordance with IDI's standard service rates and conditions in effect at the time the service is ~' performed. •A minimum of one (1) full day of service will be charged to each trip. ~ See proposal details ? SCHEDULE: Approval drawings and data shall be submitted approximately + weeks after agreement to all terms, as evidenced by IDI's receipt of this proposal, fully executed; or, in the event that Purchaser issues a Purchase Order, IDI's receipt of fully executed letter agreement. IDI estimates that shipment of the Products can be made in approximately _ weeks after IDI has received from Purchaser final approval of all submittal drawings and data:;. PURCHASER'S ACCEPTANCE: BY ITS SIGNATURE BELOW OR ISSUANCE OF ANY PURCHASE ORDER OR OTHER DOCUMENT, NOTWITHSTANDING ANY STATEMENT OR PROVISION CONTAINED THEREIN TO THE CONTRARY, PURCHASER AGREES TO ALL THE CONDITIONS AND PROVISIONS OF THIS PROPOSAL AND CONTRACT. NO OFFER BY PURCHASER TO ALTER, AMEND, LIMIT OR DELETE ANY CONDITION OR PROVISION OF THIS PROPOSAL AND CONTRACT SHALL BE BINDING UPON IDI UNLESS EXPRESSLY ACCEPTED IN WRITING BY IDI. ` ~~ ~ , t PURCHASER'S ACCEPTANCE: I INFILCO DEGREMONT INC ; t7 Company Name By: "~'' S. Venkataraman ~,, gy; Application Engineer NamelTitle ~ Name/Title ' Date: Date: 8/6/07 Ship To: + Three (3) weeks for submission of approval drawings - ** Nine (9) weeks for delivery of underdrain and media after receipt of approved submittals: p.~ ;, r' `.'1:.