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HomeMy WebLinkAboutACCO Unlimited Corporation-12/9/2013CITY OF WATERLOO Council Communication City Council Meeting: December 9, 2013 Prepared: November 27, 2013 Dept. Head Signature: PH # of Attachments: 1 SUBJECT: ACCO BULK SYSTEM USAGE AGREEMENT Submitted by: Mark Gallagher, Recreation Services Manager Recommended City Council Action: Request Council approve and authorize the Mayor to sign ACCO Bulk System Usage Agreement #11713 for SportsPlex swimming pool chemicals and equipment. Summary Statement: This 3 -year Agreement is for the provision of swimming pool water treatment chemicals and necessary bulk handling equipment for the SportsPlex. Expenditure Required: Minimum $2,200.00 per year expenditure for water treatment chemicals. Source of Funds: Funded through Leisure Services SportsPlex operating budget. Policy Issue: NA Alternative: NA Background Information: ACCO is our current supplier for Byrnes and Gates pools. , ACCO i/ Unlimited Corporation 5300 NW 55`h Avenue Johnston, IA 50131 (515) 278-0487 ACCO BULK SYSTEM USAGE AGREEMENT #11713 ACCO Unlimited Corporation ("ACCO") and Cedar Valley SportsPlex ("Customer") agree as follows: 1. In accordance with the terms of this Agreement, ACCO shall provide to Customer ACCO's Bulk Handling System Program consisting of the equipment elections described in Exhibit A ("Equipment") and the chemicals and other products to be supplied by ACCO to Customer. The Equipment shall be located at 300 Jefferson Street, Waterloo, Iowa 50701 and shall not be moved from there without ACCO's prior written consent. The Equipment shall be operated only by Customer and its employees who are authorized to operate the Equipment. 2. The term of this Agreement shall be for a period of 36 months commencing on November 15, 2013. So long as no Event of Default (as defined in Section 10) has occurred, this Agreement shall automatically continue for successive one-year terms unless this Agreement is terminated by either party, in writing, at least ninety days prior to the expiration of the initial term, or any annual extension. 3. Customer agrees to purchase its total requirements of: ACCO Liquid Chlorinating Solution -L ("Product") (880 gallon minimum per year) for a $1.68/gallon; and ACCO 07-L ("Product") (330 gallon minimum per year) for a $1.98/gallon. ACCO reserves the right, on written notice to Customer, to adjust the prices due to changes in the chemical industry supply, transportation, taxes, insurance, and govemment regulations, not to exceed 15% increase/decrease per each twelve-month term. Products will be delivered to Customer by ACCO in accordance with ACCO's regular truck route schedule. 4. Customer will: (a) have no right, title, or interest in the Equipment except as expressly set forth in this Agreement. The Equipment is the sole and exclusive property of ACCO; (b) keep the Equipment free and dear of all liens and encumbrances; (c) use the Equipment in a careful and proper manner and shall not use or deal with the Equipment in any manner which is inconsistent with its intended use; (d) comply with and conform to all national, state, municipal, and other laws, ordinances, and regulations in any way relating to the possession, use or maintenance of the Equipment; (e) provide and maintain during the term of this Agreement, comprehensive general public liability insurance and insurance against loss, fire, theft, damage or destruction of the Equipment and ACCO shall be named as additional insured; and (f) permit ACCO to remove the Equipment following termination of the Agreement. 5. Customer agrees to pay and discharge, when due, all license fees, permit fees, assessments, and sales, use, property, and other taxes or fees however designated now or hereafter imposed by any state, federal, or local government upon or with respect to the Equipment or measured by the sale, production, or transportation of any of the Product. Customer's obligations with regard to such taxes shall be deemed additional payment as required under the terms of this Agreement. 6. Customer shall not contract with, assign, transfer, or enter into any agreement with any third party regarding the Equipment without the express prior written consent of ACCO. 7. Customer shall bear all risks of loss, loss of use, direct, indirect, special, incidental, or consequential damages including theft, damage or destruction, partial or complete, of the Equipment. 8. ACCO warrants that the Product meets ACCO's standard quality. ACCO MAKES NO OTHER EXPRESS WARRANTIES AND DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ASSUMES ALL RISKS AND LIABILITY FOR ALL LOSS, DAMAGE, OR INJURY TO PERSON OR PROPERTY RESULTING FROM THE USE OF THE PRODUCTS AND EQUIPMENT. 9. Provided no Event of Default (as defined in Section 10) has occurred, this Agreement may be terminated by: (a) Customer who has (I) given 120 days prior notice to ACCO; (ii) paid ACCO an amount equal to $2,500.00 for each year or portion thereof of the un -expired term of the Agreement; and (iii) provided ACCO with the reasonable opportunity to remove the Equipment; or (b) ACCO, following written notice to Customer, if ACCO reasonably determines that it is unable to fulfill its obligations under this Agreement while eaming a reasonable profit. 10. An "Event of Default" means any of the following: (a) failure by Customer to make any payment when due under this Agreement; (b) material breach of the terms of this Agreement by Customer; or (c) a material breach of any material term of this Agreement by ACCO. 11. Upon the occurrence of an Event of Default, the party not causing the Event of Default may terminate this Agreement. Moreover, the occurrence of Event of Default under Subsection 1O(a) or (b), ACCO shall have the rights to exercise any one or more of the following rights and remedies: (a) terminate this Agreement in whole or in part; (b) take possession of the Equipment and the Product, wherever same may be located, without any court order or other process of law; (c) pursue any other remedies at law or in equity. On the occurrence of an Event of Default, the defaulting party pays all the other party's costs and expenses including reasonable attorneys' fees incurred in exercising any of its rights or remedies under this Agreement. 12. Customer and ACCO agree that: a. This Agreement shall be governed by and construed in accordance with the laws of the State of Iowa; b. Customer may not assign this Agreement or its rights hereunder without ACCO's prior written consent; c. This Agreement and the attachments hereto constitute the entire Agreement between ACCO and Customer with respect to the subject matters thereof, and supersede all prior communications, including all oral and written proposals; d. This Agreement may not be modified, amended, altered, or changed except in writing signed by both ACCO and Customer; e. Any provision of this Agreement prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remaining provisions of this Agreement; and f. If Customer uses a purchase order form to request Product, no terms of the purchase order shall apply except to identify the Product and the quantity desired. In witness whereof, the parties have executed this Agreement on the day of 4-eaem4/4.6.- , 20 l3, in accordance with the acknowledgment, consent or approval by the Council for the Cedar Valley SportsPlex. This undersigned has full authority to bind this Agreement and does so upon its direction. ACCO Unlimited Co .. oration CedIley SportsPlex EXHIBIT A ACCO BULK SYSTEM AGREEMENT EQUIPMENT 1. The Equipment (as defined in the Agreement) consists of chemical -resistant tank(s) with berm tank(s) or day tank(s) if applicable, assorted piping with cam lock fill connection and feed pump supply connection. 2. ACCO will (a) install the Equipment at Customer's site; (b) remove the Equipment, at ACCO's option, at the termination of this Agreement; and (c) carry out material repairs, as determined by ACCO, of the Equipment. 3. Customer shall be responsible for: operation of the bulk system; notification to ACCO of material malfunctions or repairs of the Equipment; access to the premises upon which the Equipment is to be installed by ACCO; and provide concrete block or other elected tank supports if applicable, fencing or other security measures, drain facilities, flushdown hose, and fire extinguisher.