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ITEM 3.5 Joint purchase of valve turner with RogersO tI�cle F o MINNESOTA V DEPARTMENT INFORMATION Request for City Council Action ORIGINATING DEPARTMENT: REQUESTOR: MEETING DATE: Utilities Kurt Neidermeier, Utility March 24, 2014 No Operations Supervisor Each year the City of Otsego conducts inspections and physical operation of about one-fifth of the water PRESENTER(s): REVIEWED BY: ITEM #: Consent Agenda Lori Johnson, City Administrator 3.5 AGENDA ITEM DETAILS RECOMMENDATION: The Public Works Subcommittee has reviewed the shared equipment purchase and ownership of a valve turner with the City of Rogers at the March 18th meeting and recommends support. ARE YOU SEEKING APPROVAL OF A CONTRACT? IS A PUBLIC HEARING REQUIRED? No No BACKGROUND/JUSTIFICATION: Each year the City of Otsego conducts inspections and physical operation of about one-fifth of the water and force main valves in the City's water and sewer systems. This means about 352 valves are tested and operated in a two week period. The equipment used to perform this task formerly was supplied by PeopleService Inc under their contract. Sharing the cost with a neighboring community provides a financially viable option over rental or the full purchase price of the equipment. SUPPORTING DOCUMENTS: X ATTACHED • Valve Turner Quote • Agreement for Joint Ownership of Equipment POSSIBLE MOTION Please word motion as you would like it to appear in the minutes. Motion to approve a joint purchase and ownership of a valve turner with the City of Rogers. BUDGET INFORMATION FUNDING: BUDGETED: X YES — 2014 Water Operations Fund Budget Amendment to be requested by Finance Department ACTION TAKEN ❑ APPROVED AS REQUESTED ❑ DENIED ❑ TABLED ❑ OTHER (List changes) COMMENTS: AGREEMENT FOR THE JOINT P, EQUIPMENT THIS AGREEMENT is made this day of 2014 by and between the City of Otsego, a Minnesota municipal corporation and the City of Rogers, a Minnesota municipal corporation, (each a "Party" or collectively referred to as the "Parties"). WHEREAS, M.S. Section 471.59 authorizes the joint exercise of powers between two government units; and WHEREAS, there is not a written Agreement in place to address the joint ownership of equipment; and WHEREAS, the joint ownership of a valve turner (hereinafter referred to as "Equipment") will benefit the Parties in their public safety service operations and result in the savings of tax dollars; and WHEREAS, the Parties wish to share the use and ownership of the Equipment and it is in the best interest of the Parties to approve this Agreement. NOW, THEREFORE, in consideration of the covenants hereinafter contained, the Parties hereby agree to the following: SECTION I. TERMS OF AGREEMENT 1. The Parties will equally purchase and own the Equipment. 2. The Parties will equally share the costs of properly maintaining and repairing the Equipment, subject to the approval of the Utility Supervisors. 3. There will be equal usage of the Equipment between the Parties, as determined by the Utility Supervisors. 4. Neither Party shall loan the Equipment to another entity. 5. Indoor storage of the equipment is required during possession. SECTION II. INSURANCE AND LIABILITY 1. Insurance. Each Party agrees to maintain liability insurance coverage applicable to the transporting, use, and other possession of the Equipment, for injury to or death of any person or of any person, or damage to the property of any third person or persons, which such insurance shall be at least in the amount of the limits of liability established in Minnesota Statutes, Chapter 466. 2. Workers' Compensation. Each Party shall be responsible for injuries or death of its own personnel while using the Equipment. Each Party will maintain workers' compensation insurance or self-insurance coverage, covering its own personnel while they are using the Equipment pursuant to this Agreement. 3. Damage to Equipment. Each Party waives the right to sue the other Party for any damage to or loss of the Equipment, except if the damages or losses were caused wholly or substantially by the negligence of the other Party or its officers, employees, volunteers or from damage to the Equipment shall be agents. Any insurance deductible due resulting the responsibility of the Party in possession of the Equipment when the damage occurred. 4. Liability. Otsego agrees to defend and indemnify Rogers and its officials, employees and agents for any claims, damages or liabilities against Rogers arising from any occurrence that happens while the Equipment is in the possession of Otsego, except for claims, damages or liabilities arising from the gross negligence of Rogers or its officials, employees or agents. Rogers agrees to defend and indemnify Otsego and its officials, employees and agents for any claims, damages or liabilities against Otsego arising from any occurrence that happens while the Equipment is in the possession of Rogers, except for claims, damages or liabilities arisng from the gross negligence of Otsego or its officials, employees or agents. Under no circumstances, however, shall a party be required to pay on behalf of itself and the other Party, any amounts in excess of the limits on liability established in Minnesota Statutes, Chapter 466, applicable to any one Party. The intent of this subdivision is to impose on each Party a limited duty to defend and indemnify the other Party for claims arising within the Party's jurisdiction subject to the limits of liability under Minnesota Statutes, Chapter 466. The purpose of creating this duty to defend and indemnify is to simplify the defense of claims by eliminating conflicts among defendants, and to permit liability claims against multiple defendants from a single occurrence to be defended by a single attorney. SECTION III. TERMINATION OF AGREEMENT 1. Agreement. This Agreement may be terminated by either Party by giving sixty (60) days written notice to the other Party. SECTION IV. DISPOSITION OF EQUIPMENT. 1. In the case of termination of this Agreement or the replacement of the Equipment, the Equipment shall be sold for its fair market value and sale proceeds divided equally between the two Parties. Upon the agreement of both Parties, a Party may purchase the other Party's share of ownership in the Equipment for its fair market value. SECTION V. GENERAL PROVISIONS L Entire Agreement. This Agreement supersedes any prior or contemporaneous representations or agreements, whether written or oral, between the Parties and contains the entire agreement. 2. Amendments, Any modification or amendment to this Agreement shall require a written agreement signed by both Parties. 3. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Minnesota. 4. Captions. Captions or headings contained in this Agreement are included for convenience only and form no part of the agreement between the Parties. 5. Waivers. The waiver by either Party of any breach or failure to comply with any provision of this Agreement by the other Party shall not be construed as, or constitute a continuing waiver of such provision or a waiver of any other breach of or failure to comply with any other provision of this Agreement. 6. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, all of which shall constitute but one and the same instrument. 7. Savings Clause. If any court finds any portion of this Agreement to be contrary to law or invalid, the remainder of the Agreement will remain in full force and effect. IN WITNESS WHEREOF, the Parties, by action of their respective governing bodies, caused this Agreement to be approved. CITY OF OTSEGO, MINNESOTA CITY OF ROGERS, MINNESOTA RAM Its Mayor Its Mayor AND: AND: Its City Clerk Its City Clerk EXHIBIT A Schedule of Workina Time Stora e and Deliver . The City of Otsego shall store and have use of equipment October 1 through May 31, Otsego will deliver to Rogers the equipment the closest work day to June 1. The City of Rogers shall store and have use of equipment June 1 through September 30, Rogers will deliver to Otsego the equipment the closes work day to October 1. Schedule of Preventative Maintenance. Fall preventative maintenance and winterizing will be alternated. Otsego will conduct preventative maintenance during even years and Rogers during odd years. "Material Quotation" Standard Terms TERMS AND CONDITIONS OF SALE (terms) 1. All references In this document to 'Seller' shall include HD Supply, Inc. and /or any parent, subsidiary or affiliate of HD Supply, Inc. (including any division of the foregoing) whether or not performing any or all of the scope hereunder or specifically identified herein. All references to'Buyer'shall include all parent(s), subsidiaries and affiliates of the entity placing the order. Buyer and Seller maybe referred to individually as a "Party" and collectively as °Parties°. 2. All sales to Buyer are subject to these Terms, which shall prevail over any inconsistent terms of Buyers purchase order or other documents. Additional or different terms and conditions In anyway altering or modifying these Terms are expressly objected to and shall not be binding upon Seller unless specifically accepted In writing by Seller's authorized representative. No modification or alteration of these Terms shall result by Sellers shipment of goods following receipt of Buyers purchase order, or other documents containing additional, conflicting or inconsistent terms. There are no terms, conditions, understandings, or agreements other than those stated herein, and all prior proposals and negotiations are merged herein. These Terms are binding on the Parties, their successors, and permitted assigns. 3. Prices on Seller website, catalogs or in Seiler quotes are subject to change without notice, and all such prices expire and become invalid if not accepted within 10 calendar days from the date of issue, unless otherwise noted by Seller in waiting. Price extensions if made are for Buyers convenience only, and they, as well as any mathematical, stenographic or clerical errors, are not binding on Seller. Prices shown do notlnciude any sales, excise, or other governmental tax or charge payable by Setter to any federal, state or local authority. Any taxes now or hereafter imposed upon sales or shipments will be added to the purchase price, and Buyer shall reimburse Seller for any such tax or provide Seller with an acceptable lax exemption certificate. AD prices and other terms provided to Buyer shall be kept confidential except to the extent a Party Is required by law to disclose the same. 4. Seller shall not be liable for delay or default In deWery resulting from any cause beyond Salters reasonable control, including, but not limited to, governmental action, strikes or other labor troubles, fire, damage or destruction of goods, wars (declared or undeclared), acts of terrorism, manufacturers'shortages, availability or timeliness of transportation, materials, fuels, or supplies, and acts of God (each a'Force Majeure Event'). Upon the occurrence of a Force Majeure Event: (a) the time for Sellers performance shall be extended reasonably and the Parties shall adjust all affected dates accordingly; (b) the purchase price shall be adjusted for any Increased costs to Seller resulting from such Force Majeure Event; and (c) Buyer shall not be entitled to any other remedy. 5. Seller Is a reseller of goods only, and as such does not provide any warranty for the goods it supplies hereunder. Notwithstanding this As -Is limitation, Seller shall pass through to Buyer any transferable manufacturers standard warranties with respect to goods purchased hereunder. BUYER AND PERSONS CLAIMING THROUGH BUYER SHALL SEEK RECOURSE EXCLUSIVELY FROM MANUFACTURERS IN CONNECTION WITH ANY DEFECTS IN OR FAILURES OF GOODS, AND THIS SHALL BE THE EXCLUSIVE RECOURSE OF BUYER AND PERSONS CLAIMING THROUGH BUYER FOR DEFECTIVE GOODS, WHETHER THE CLAIM OF BUYER OR THE PERSON CLAIMING THROUGH BUYER SHALL SOUND IN CONTRACT, TORT, STRICT LIABILITY, PURSUANT TO STATUTE, OR FOR NEGLIGENCE. BUYER SHALL PASS THESE TERMS TO SUBSEQUENT BUYERS AND USERS OF GOODS. SELLER EXCLUDES AND DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER ASSUMES NO RESPONSIBILITY WHATSOEVER 6. Buyer shall indemnify, defend, and hold Setter its officers, directors, employees and agents harmless from any and all costs (including adomeys' and accountants' fees and expenses), liabilities and damages resulting from or related to any third party (including Buyers employees) claim, complaint and/orjudgmentarising from Buyers use of any goods furnished hereunder, as well as any negligent, Intentional, or tortious act or ominlon of Buyer or any material breach by Buyer of these Terms. 7. When goods are delivered to Buyer in Sellers own vehicles, the F.O.B. point shall be Buyers designated delivery site. In all other cases the F.O.B. pointshall be Sellers store or warehouse and all responsibility and costs of shipping and delivery beyond the applicable F.O.B. point shall be borne by Buyer. Title and risk of loss shall pass to Buyer at the applicable F.O.B. point, which for goods not delivered In Sellers own vehicles shall be when Setter delivers the goods to the common carrier. All claims for shortage of goods or for loss or damage to goods as to which Seller has the risk of loss shall be waived unless Buyer, within 10 calendar days after receipt of the short or damaged shipment, gives Seller written notice fully describing the alleged shortage or damage. Partial shipments are permitted at Sellers discretion. 8. Any change in product specifications, quantities, destinations, shipping schedules, or any other aspect of the scope of goods must be agreed to In writing by Seller, and may result in a price and delivery adjushnentby Seller. No credit for goods returned by Buyer shall be given without Sellers written authorization. All returns are subject to a restocking charge. 9. Unless otherwise agreed in writing, payment terms are net 30 days from de§very, payable in United States ofAmedca ('U.S.') dollars. Notwithstanding the foregoing, all orders are subject to Sellers continuing approval of Buyers credit if Buyers credit Is not approved or becomes unsatisfactory to Seller then Seller, in its sole discretion, may suspend or cancel performance, or require differentpaymentterms, Including butnot limited to cash on delivery or In advance of shipment In addition, Seller may in its discretion require an advance deposit of up to 100% of Sellers selling price for any specially manufactured goods ordered by Buyer hereunder. Payments due hereunder shall be made in the form of cash, check, or money order, or other tender approved in waiting by Seller. Seller may, In its sole discretion, apply Buyers payment against any open charges. Past due accounts bear Interest at the lesser of 1.5% per month or the maximum rate permitted by applicable I 10. Buyer shall not export or reexport, directly or indirectly, all or any part of the goods or related technology obtained from Seller under these Terms except in accordance with applicable export laws and regulations of the U.S. Further, a Buyer that is a non -U.S. company or citizen shall simllarly 6mttany export or re-export activity to that which would be deemed compliant with U.S. export laws and regulations if performed by a U.S. company or citizen. 11. Buyer shall pay Seller all costs and expenses of collection, suitor other legal action brought as a result of the commercial relationship between them, Including, but not limited to, all actual attorneys' and paralegals' fees, and collection costs, incurred pre -suit, through trial, on appeal, and in any administrative or bankruptcy proceedings. Any cause of action that Seller has against Buyer may be assigned without Buyer's oonsentto HD Supply, Inc. or to any affiliate, parent or subsidiary of HD Supply, Inc. 12. This Agreement, Buyers account, and the business relationship between Buyer and Seller shall be governed by and construed in accordance with the laws of Georgia without regard to conflicts of laws rules, and specifically excluding the UN Convention on Contracts for the International Sale of Goods. The Parties agree that any legal action arising under or related to this Agreement shall be brought in Cobb County, Georgia, and any right to object to such venue or to assert the inconvenience of such forum Is hereby waived. 13. If Buyer falls to comply with these Terms, Seller may terminate or restrict any order Immediately upon notice to Buyer. Buyer certifies that It Is solvent and thatit will advise Seller immediately if it beoomes insolvent Buyer agrees to send Seller written notice of any changes in the form of ownership of Buyers business within 5 days of such changes. Buyer and Seller are the only Intended beneficiaries of this document, and there are no third party beneficiaries. 14. The invalidity or unenforceability of all or part of these Terms will not affect the validity or enforceability of the other terms. The parties agree to replace any vold or unenforceable term with a new term that achieves substantially the same practical and economic effect and is valid and enforceable. 15. The following provisions shall survive termination, cancellation and completed performance of this Agreement as long as necessary to allow the aggrieved party to fully enforce such clauses: 5, 6, 9, 10,11 and 12. HD Supply Terms and Conditions of Sale - Rev A0807 Date Printed: 3/13/14 Page No. 1 PS Bid #: Job Name: Location: Customer: Engineer: Bid date: Seq# JMH2305842 SPIN DR. VALVE/HYDT REV 3 OTSEGO, MN CITY OF OTSEGO OTSEGO/ROGERS 3/13/14 Qty Description Units Salesman: MARK HINES Branch: EDEN PRAIRIE, MN Phone: (952) 974-8114 Fax: (952) 937-8065 Mobile: (612) 597-8509 Price Ext. Price SPIN DOCTOR SD 400 30 1 SPIN DOCTOR W/ SD400 BOOM AND EA 6,550.00 6,550.00 STANDARD 400 HEAD 60 1 PR6.5 POWER PACK - 6.5HP EA 2,950.00 2,950.00 80 1 EXTENDED REACH OPTION EA 1,755.00 1,755.00 100 1 TRAILER W/ TOOL BOX & EXTENDED EA 4,515.00 4,515.00 REACH (EXTENDED REACH IS REQ -D W/ TRAILER) FOR SD400 140 1 LED TRAILER LIGHT PACKAGE EA 285.00 285.00 W/ SIDE MARKERS AND 4 PRONG FLAT WIRE HARNESS 170 1 BEARING BUDDIES FOR SPIN DR EA 120.00 120.00 TRIALER PRICES DO NOT INCLUDE TAX FREIGHT TO OTSEGO IS INCLUDED Bid Totals Date Printed: 3/13/14 Sub Total $16,175.00 Bid Total $16,175.00 Page No. 2