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Signed Contract_Gavilon Grain, LLC for Salt Transfer and HandlingCity of Dubuque City Council Meeting Consent Items # 010. Copyrighted October 3, 2022 ITEM TITLE: Signed Contract(s) SUMMARY: Dubuque Community School District for School Resource Officers for School Year 2022-2023; Dubuque Community School District for Drug Abuse Resistance Education Cooperative Program from School Year 2022-2023; Experienced Roofing for the Municipal Services Center Roof Repair; Gavilon Grain, LLC for salt transfer and handling services; Graymont Western Lime, Inc. for the Eagle Point Water Plant High Calcium Quicklime; Hawkins Inc. for the Eagle Point Water Plant Sodium Hypochlorite; James Orr Coating I nspection, LLC for multiple water tank inspections; MSA Professional Services, Inc. for the Briarwood Subdivision Water Connection; W/K Construction for the 2022 Asphalt Milling Project - Project Number 2022-6. SUGGESTED Suggested Disposition: Receive and File DISPOSITION: ATTACHMENTS: Description Type Drug Abuse Resistance Education Cooperative Supporting Documentation Program from School Year 2022-2023 Contract School Resource Officers for School Year 2022-2023 Supporting Documentation Contract Municipal Services Center Roof Repair Contract Supporting Documentation Salt Transfer and Handling Services Contract Supporting Documentation Eagle Point Water Plant High Calcium Quicklime Supporting Documentation Project Eagle Point Water Plant Sodium Hypochlorite Contract Supporting Documentation Multiple Water Tank Inspections Contract Supporting Documentation Briarwood Subdivision Water Connection Contract Supporting Documentation 2022 Asphalt Milling Project Contract Supporting Documentation TRANSFER AND HANDLING AGREEMENT BY AND BETWEEN THE CITY OF DUBUQUE, IOWA AND GAVILON GRAIN, LLC This Transfer and Handling Agreement ("Agreement") dated for reference purposes that 1st day of September, 2022 by and between Gavilon Grain, LLC, a Delaware limited liability company, and its affiliates ("Gavilon") and City of Dubuque, an Iowa municipal corporation ("City"). WHEREAS, City desires handling and transfer services for salt ("Product") at its property located next to Gavilon's facility at Purina Drive in Dubuque, IA (as shown on Exhibit A, the "Facility"), and Gavilon desires to furnish such services to City. NOW, THEREFORE, in consideration of the mutual covenants made herein, the parties hereto agree as follows: SECTION 1. TERM. The initial term of this Agreement shall commence on September 1, 2022 through August 31, 2023. This Agreement shall renew thereafter for successive one-year terms until terminated by either party for any reason with or without cause by written notice, such notice to be delivered to the other party not less than thirty (30) days' prior to the end of the then -current term. SECTION 2. SERVICES. Gavilon shall provide and furnish to City all labor, services, and equipment, as outlined on Exhibit B, necessary to transload Product; that is, unload Product from inbound barges, and transfer product to City's storage location and load Product onto City's outbound trucks. Gavilon shall make such transloading services available at the Facility between the hours of 7:OOam to 3:OOpm, Monday through Friday (excluding legal holidays). Gavilon will provide City truck loading services outside those hours as may be reasonably requested by City from time to time for orders of no less than four hundred (400) tons, at overtime rates of $45.00/person-hour on weekdays and non - holidays and $70.00/person-hour on weekends and holidays. SECTION 3. COMPLIANCE WITH LAWS. Gavilon shall comply with all federal, state and local laws, ordinances, regulations, orders, licenses and permits relating to the services it is providing for City. SECTION 4. FEES; PAYMENT. During the term of this Agreement, City shall pay Gavilon a total of Six Dollars and Sixty -Five Cents ($6.65) per each ton of Product transloaded hereunder which is the total of Four Dollars ($4.00) per each inbound ton and Two Dollars and Sixty -Five Cents ($2.65) per each outbound ton. All payments shall be due upon receipt of commercial invoice and supporting documentation. Payment shall be made via wire transfer. Fee Adjustments during the term of this Agreement shall begin on the first anniversary date of the term and continuing on each subsequent anniversary date thereof and shall be determined by multiplying the fee in effect immediately prior to the applicable anniversary by the CPI Adjustment (as hereinafter defined) and then adding the resulting product, if positive ("CPI Increase"), to the fees in effect immediately prior to the applicable anniversary date; provided, however, in no event shall the CPI Increase exceed three percent (3%) of the then -current fees and provided, further, that in no event shall the fees for any year be less than the fees for the immediately preceding year. The "CPI Adjustment" shall be a fraction expressed as a decimal, the numerator of which shall be the Current CPI minus the Prior CPI and the denominator of which is the Prior CPI, or three percent (3%) whichever amount is less. The "Current CPI" is the latest CPI published prior to the anniversary date of the lease term. The "Prior CPI" is the CPI published in the immediately preceding calendar year for the same month as the Current CPI. The term "CPI" shall mean the "Consumer Price Index for All Urban Consumers (CPI-U)" published by the Bureau of Labor Statistics of the U.S. Department of Labor, All Items (1982-84=100), U.S. City Average, or any successor index thereto, appropriately adjusted. If the CPI ceases to be published and there is no successor thereto, such other government or nonpartisan index or computation shall be used which would obtain a substantially similar result as if the CPI had not been discontinued. SECTION 5. WEIGHTS AND SHRINKAGE. Inbound (origin) weights, or the barge lading, shall be used to substantiate Product weights for purposes of calculating inbound quantities. Gavilon shall provide certified outbound weights for containers which will be utilized to calculate fees payable to Gavilon under this Agreement. Maximum allowable shrink shall be two percent (2%); however, Gavilon shall not be entitled to retain Product up to the allowable shrinkage. SECTION 6. INSPECTIONS OF PRODUCT AND EQUIPMENT. Gavilon shall inspect each inbound shipment of Product to determine whether there appears to be any condition existing as to quality or quantity of the Product or any condition of the transport equipment which, in Gavilon's judgment, renders such shipment unsatisfactory for unloading. In the event Gavilon determines that such shipment is not satisfactory, Gavilon will not unload such shipment pending inspection and instructions from City. Gavilon shall also inspect all outbound transport equipment before loading to ensure non - contamination. If Gavilon knows or suspects of any contamination in trucks to be loaded, Gavilon shall promptly notify City so that arrangements for replacement trucks can be made by City. SECTION 7. RECORDKEEPING. Gavilon shall maintain records of inbound barges containing Product and maintain similar records on all outbound shipments of Product, including shipment date, consignee, quantity of product shipped, load numbers, weight tickets, carrier's name and identifying numbers. These records will be furnished to City either by electronic transfer or telephone daily, with written documentation sent to City within one (1) week. At the end of each month, Gavilon shall also send statements to City showing inbound shipments of Product and outbound shipments of Product for such month. SECTION 8. AUDIT OF RECORDS. Upon five (5) business days' notice and during normal business hours, each party or its designated auditor has the right to inspect or 2 audit the books, records and accounts of the other relating solely to the transactions in this Agreement, provided the right to inspect or audit shall be limited to two calendar years following the completion of any delivery of Product. Any error or discrepancy detected that has led to an overpayment or an underpayment between the parties will be promptly corrected by an appropriate balancing payment to the underpaid party or a refund by the overpaid party. SECTION 9. TITLE TO PRODUCT; LIEN RIGHTS. Title to Product stored hereunder shall at all times remain with City, and such Product shall not be subject to liens or other claims of third parties against Gavilon. Notwithstanding the above, City hereby grants Gavilon a lien against any and all Product stored hereunder for any amounts which may become due and owing by City. Gavilon may foreclose on such lien, in the manner provided below, in the event that: (i) City fails to either pay when due or dispute (in good faith) any amounts owed pursuant to this Agreement on or before the applicable due date; and (ii) such failure has not been cured within two (2) business days following receipt of written notice to City by Gavilon of its intent to sell a portion of Product pursuant to Gavilon's lien rights granted herein. Without prejudice to any other legal or equitable remedies that may be available, Gavilon may enforce the lien granted herein by public or private sale of any or all Product remaining in Gavilon's possession at any time or place and on any terms which Gavilon, in its sole discretion, deems commercially reasonable, three (3) or more business days after delivery to City of the above -referenced notice (provided City has not paid the amount in question prior thereto). SECTION 10. GAVILON'S STANDARD OF CARE. Gavilon shall not be liable to City for any loss of or damage to Product stored hereunder, however caused, unless such loss or damage directly results from the failure of Gavilon to exercise that degree of care as would be exercised by a reasonably careful person under like circumstances. In no event shall Gavilon be responsible for any loss or damage to Product in excess of the per ton value of the volume of Product. City shall be solely responsible for insuring or, at its own risk, not insuring against the risk of loss of or injury or damage to Product stored hereunder. SECTION 11. EVENTS OF DEFAULT; REMEDIES. The following shall be "events of default" under this Agreement. 11.1 Failure of either party to perform any of its respective covenants or obligations under this Agreement after having received twenty (20) days' written notice of such failure, or in the case of failure to make payment, five (5) days' written notice. 11.2 With respect to either party, (i) becomes insolvent or generally fails to pay its debts as they become due; (ii) an assignment for the benefit of creditors which is not dismissed within thirty (30) days; or (iii) any proceeding relating to bankruptcy, insolvency or debtor's relief being initiated by or against such party unless dismissed or this Agreement is assumed in such proceeding within sixty (60) days. 3 Whenever any event of default referred to in Section 11.1 or 11.2 above shall happen, the other party may immediately terminate this Agreement without prior notice and take whatever action may otherwise be available to it at law or in equity. SECTION 12. INDEMNIFICATION. Each party agrees to indemnify and hold the other party, its officers and employees harmless from any and all damages, liability and expenses, including but not limited to reasonable attorneys' fees, that arise out of damage, injury, losses or claims resulting from the negligent acts or omissions of the indemnifying party (including its employees, agents or contractors). A party seeking indemnification hereunder shall promptly notify the indemnifying party of any claim, and the indemnifying party shall have the right to select legal counsel to defend any third -party claim. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR INDIRECT OR CONSEQUENTIAL DAMAGES RESULTING FROM OR ARISING OUT OF THIS AGREEMENT INCLUDING LOSS OF USE, INCREASED COST OF OPERATIONS, LOSS OF PROFIT OR REVENUE, OR BUSINESS INTERRUPTIONS CAUSED BY THE OTHER PARTY'S ACTS OR OMISSIONS. SECTION 13. INSURANCE. Gavilon shall at all times during the performance of this Agreement provide insurance as described in the attached Insurance Schedule as such schedule may from time to time be revised upon notice to Gavilon. SECTION 14. FORCE MAJEURE. A party shall be excused from its obligations under this Agreement if and to the extent and during such time as the party is prevented, impeded, or hindered, unable to perform its obligations or is delayed in doing so due to events or conditions outside of the party's reasonable control and after the party has taken reasonable steps to avoid or mitigate such event or its consequences (each a "Force Majeure Event") including, without limitation in any way, as the result of any acts of God, war, fire, or other casualty, riot, civil unrest, extreme weather conditions, terrorism, strikes and/or labor disputes, pandemic, epidemic, quarantines, government stay-at-home orders, municipal and other government orders, or other matter beyond the control of such party. Upon the occurrence of a Force Majeure Event, the party incurring such Force Majeure Event will promptly give notice to the other party identifying the Force Majeure Event, explaining how it impacts performance and the estimated duration, identifying the relief requested, agreeing to limit damages to the other party and to immediately resume performance upon termination of the Force Majeure Event, and agreeing to supplement the notice as more information becomes available, and thereafter the parties shall meet and confer in good faith in order to identify a cure of the condition affecting its performance as expeditiously as possible. No obligation to make a payment required by this Agreement is excused by a Force Majeure Event. The nonperforming party shall not be entitled to any damages or additional payments of any kind for any such delay. SECTION 15. INDEPENDENT CONTRACTORS. It is understood and agreed that the parties shall for all purposes be considered independent contractors. Each party shall be fully and exclusively liable for (i) the payment of any and all taxes now or hereafter imposed by any governmental authority which are measured by wages, salaries, commissions or otherwise paid to persons in its employ; and (ii) any accident to persons 4 or property that may occur from any act, omission, or negligence on the part of such party, its licensees, agents, contractors or employees for any cause whatsoever. SECTION 16. NOTICES. All notices given under this Agreement shall be deemed to be properly served if delivered in writing personally, sent via facsimile to the number provided herein with confirmation of such transmission, or sent by regular United States Mail, postage prepaid, to the following address, provided, however, either party may by written notice given as aforesaid change its address for subsequent notices to be given hereunder: If to Gavilon: Gavilon Grain, LLC 505 East 7th Street Dubuque, ]A 52001 Attn: Mitchell Montag Fax: 402-942-3167 Email: Mitchell. Montag@gavilon.com With a copy to: Gavilon Grain, LLC Attn: Legal Department Fax: (402) 221-0700 Email: legaldepartment@gavilon.com If to City: City of Dubuque City Hall 50 West 13th Street Dubuque, IA 52001 Attn: City Manager Fax: 319-589-4149 Email: SECTION 17. APPLICABLE LAW. This Agreement and the legal relations among the parties hereto shall be governed by and construed in accordance with the substantive laws of the State of Iowa. The parties hereto agree that the Iowa District Court for Dubuque County, Iowa shall have sole and exclusive jurisdiction over any dispute, claim or controversy which may arise involving this Agreement. The parties hereby irrevocably submit and consent to such jurisdiction and waive any right they may have to seek any change of venue. THE PARTIES HERETO WAIVE THEIR RIGHT TO A JURY TRIAL IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING COUNTERCLAIMS AND TORT CLAIMS. SECTION 18. CUMULATIVE REMEDIES. Unless otherwise specifically provided in this Agreement, the rights, powers, and remedies of each of the parties provided in this Agreement are cumulative and the exercise of any right, power or remedy under this Agreement does not affect any other right, power or remedy that may be available to either party under this Agreement or otherwise at law or in equity. SECTION 19. WAIVER. No delay or omission by either party in the exercise of any right, power, or remedy hereunder will impair such right, power, or remedy or be construed to be a waiver of any default or acquiescence therein. SECTION 20. SEVERABILITY. Any term or provision of this Agreement that is invalid or unenforceable by a court of competent jurisdiction will be ineffective only to the extent 5 that such invalidity will not: (a) render invalid or unenforceable the remaining terms and provisions of this Agreement, or (b) affect the validity or enforceability of any of the terms or other provisions of this Agreement. SECTION 21. ENTIRE AGREEMENT. This writing is intended by the parties to be a final expression of their agreement and all negotiations and representations between the parties hereto are incorporated herein. This Agreement replaces and supersedes all prior agreements and contains a complete and exclusive statement of the terms of the Agreement between City and Gavilon with respect to the subject matter hereof. SECTION 22. AMENDMENT. This Agreement may only be amended, changed, or modified by a writing signed by all the parties and no course of dealing, course of performance or usage of trade shall be admissible to supplement or explain any of its provisions. SECTION 23. ASSIGNMENT. This Agreement may not be assigned or delegated by either party without prior written consent of the other party. SECTION 24. DISPUTE RESOLUTION. City and Gavilon agree that prior to the commencement of any judicial proceeding for any controversy arising out of or relating to the construction or interpretation of this Agreement, the parties will engage in mediation in accordance with the Commercial Arbitration Rules of the U. S. Arbitration & Mediation, Midwest ("USAW') or the American Arbitration Association ("AAA"). The parties shall divide equally all costs of mediation which shall be paid immediately upon billing by the mediation service. SECTION 25. SUCCESSORS AND ASSIGNS. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. Nothing in this Agreement, expressed or implied, is intended to confer on any person other than the parties hereto or their respective successors and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement. SECTION 26. COUNTERPARTS. This Agreement may be executed in counterparts, including by means of facsimile or electronic (.pdf) signature pages, any of which need not contain the signature of more than one party and each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Il GAVILON GRAIN, LLC By- Name:4_ Title: CITY OF DUBUQUE .La�.�►.� WW7,fi �A-- Name: Michael Van Milligen Title: City Manager EXHIBIT A EXHIBIT B Equipment provided by Gavilon Excavator Portable Conveyors - 480 ft 1 - Salt Stacker Conveyor 1 - Endloader 1 - Skidsteer 1 - Bulk Hopper INSURANCE SCHEDULE G 1. Gavilon (Vendor0 shall furnish a signed certificate of insurance to the City of Dubuque, Iowa for the coverage required in Exhibit I prior to the contract commencement. Each certificate shall be prepared on the most current ACORD form approved by the Iowa Insurance Division or an equivalent. Each certificate shall include a statement under Description of Operations as to why the certificate was issued. Transfer and Handling Agreement dated 2. All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa and all insurers shall have a rating of A or better in the current A.M. Best's Rating Guide. 3. Each certificate shall be furnished to the Finance Department of the City of Dubuque. 4. The service provider shall be required to carry the minimum coverage/limits, or greater if required by law or other legal agreement, in Exhibit I. Failure to provide the required minimum coverage shall not be deemed a waiver of such requirements by the City of Dubuque. 5. Failure to obtain or maintain the required insurance shall be considered a material breach of this agreement. 6. All required endorsements shall be attached to certificate. 7. Whenever a specific ISO form is referenced the current edition of the form must be used unless an equivalent form is approved by the Director of Finance and Budget. The service provider must identify or list in writing all deviations and exclusions from the ISO form. 8. [Reserved] 9. Vendor shall require all subcontractors and sub -subcontractors to obtain and maintain during the performance of work insurance for the coverages described in this Insurance Schedule and shall obtain certificates of insurance from all such subcontractors and sub -subcontractors. Vendor agrees that it shall be liable for the failure of a subcontractor and sub -subcontractor to obtain and maintain such coverage. The City may request a copy of such certificates from the Vendor. 10. Vendor shall be responsible for deductibles/self-insured retention for payment of all policy premiums and other costs associated with the insurance policies required below. 11. All certificates of insurance must include agents name, phone number, and email address. 12. The City of Dubuque reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by this Schedule at any time. 13. The City of Dubuque reserves the right to modify these requirements, including limits, based on changes in the risk or other special circumstances during the term of the agreement, subject to mutual agreement of the parties. 10 A) B) INSURANCE SCHEDULE G (continued) EXHIBIT I COMMERCIAL GENERAL LIABILITY General Aggregate Limit $2,000,000 Products -Completed Operations Aggregate Limit $1,000,000 Personal and Advertising Injury Limit $1,000,000 Each Occurrence $1,000,000 Fire Damage Limit (any one occurrence) $50,000 Medical Payments $5,000 1) Coverage shall be written on an occurrence, not claims made, form. The general liability coverage shall be written in accord with ISO form CG 00 01 or business owners form BP 00 02. All deviations from the standard ISO commercial general liability form CG 00 01, or Business owners form BP 00 02, shall be clearly identified. 2) Include ISO endorsement form CG 25 04 "Designated Location(s) General Aggregate Limit." 3) Include endorsement indicating that coverage is primary and non-contributory. 4) Include Preservation of Governmental Immunities Endorsement (Sample attached). 5) Include additional insured endorsement for: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers. Use ISO form CG 20 10 (Ongoing operations) or its equivalent. 6) Policy shall include Waiver of Right to Recover from Others endorsement. 7) Include personal injury, contractual liability and coverage for property of other's in Vendor's care, custody and control. 8) Either (a) delete the marine operation's exclusion and the care, custody and control exclusion or (a) obtain Wharfinger's Liability Insurance (to insure Vendor's warranty of safe berth and Vendor's obligations as bailee of City owner property and Terminal Operator's Liability Insurance to insure Vendor against liability arising from its acts or omissions which cause personal injury or property damage to third parties and Stevedore's Liability Insurance, with limits of $1,000,000. WORKERS' COMPENSATION & EMPLOYERS LIABILITY Statutory Benefits covering all employees injured on the job by accident or disease as prescribed by Iowa Code Chapter 85. Coverage A Statutory —State of Iowa Coverage B Employers Liability Each Accident $100,000 Each Employee -Disease $100,000 Policy Limit -Disease $500,000 Policy shall include Waiver of Right to Recover from Others endorsement. Coverage B limits shall be greater if required by the umbrella/excess insurer. OR 11 C) C) D) E) F) If, by Iowa Code Section 85.1A, the Vendor is not required to purchase Workers' Compensation Insurance, the Vendor shall have a copy of the State's Nonelection of Workers' Compensation or Employers' Liability Coverage form on file with the Iowa Workers' Compensation Insurance Commissioner, as required by Iowa Code Section 87.22. Completed form must be attached. U.S. LONGSHORE AND HARBOR WORKERS' ACT Coverage with statutory limits POLLUTION LIABILITY Coverage required: _*_ Yes _ No Pollution liability coverage shall be required if the lessee, contracting party, or permittee has any pollution exposure for abatement of hazardous or contaminated materials including, but not limited to, petroleum products, the removal of lead, asbestos, or PCBs. Pollution product and completed operations coverage shall also be covered. Each Occurrence $2,000,000 Policy Aggregate $4,000,000 1) Policy to include job site and transportation coverage. 2) Include additional insured for: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers. Use ISO form CG 20 10. (Ongoing operations) or its equivalent and CG 20 37(competed operations). 3) Include Preservation of Governmental Immunities Endorsement. 4) Provide evidence of coverage for 5 years after completion of project. PROFESSIONAL LIABILITY $1,000,000 Coverage required: Yes X_ No If the required policy provides claims -made coverage: 1) The Retroactive Date must be shown and must be before the date of the agreement. 2) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the work or services. 3) If coverage is canceled or non -renewed and not replaced with another claims - made policy form with a Retroactive Date prior to the date of the agreement, the contractor must provide "extended reporting" coverage for a minimum of five (5) years after completion of the work or services. CYBER LIABILITY/BREACH $1,000,000 Coverage required: _ Yes _*_ No Coverage for First and Third Party liability including but not limited to lost data and restoration, loss of income and cyber breach of information. UMBRELLA/EXCESS $1,000,000 Coverage required: _*_ Yes _ No 12 The General Liability, Automobile Liability and Workers Compensation Insurance requirements may be satisfied with a combination of primary and Umbrella or Excess Liability Insurance. If the Umbrella or Excess Insurance policy does not follow the form of the primary policies, it shall include the same endorsements as required of the primary policies including Waiver of Subrogation and Primary and Non-contributory in favor of the City. Please be aware that naming the City of Dubuque as an additional insured as is required by this Insurance Schedule may result in the waiver of the City's governmental immunities provided in Iowa Code sec. 670.4. If you would like to preserve those immunities, please use this endorsement or an equivalent form. PRESERVATION OF GOVERNMENTAL IMMUNITIES ENDORSEMENT 1. Nonwaiver of Governmental Immunity. The insurer expressly agrees and states that the purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time. 2. Claims Coverage. The insurer further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists and as it may be amended from time to time. Those claims not subject to Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. 3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurer. 4. Non -Denial of Coverage. The insurer shall not deny coverage under this policy and the insurer shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa. No Other Change in Policy. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. SPECIMEN 13