Signed Contracts, Agreements_Morton International Salt StorageMORTON SALT
A K +S Group Company
August 19, 2010
Mr. Michael C. Van Milligen
City Manager
The City of Dubuque, Iowa
50 West 13 Street
Dubuque, Iowa 52001
Dear Sir:
Please find enclosed herewith two Salt Storage and Handling Agreements between The
City of Dubuque, Iowa and Morton International, Inc., effective August 1, 2010.
Please sign one copy of the Agreements and return to my attention.
If we can be of any further assistance, please do not hesitate to contact me.
Thanking you in advance.
Veronica Ziemba
Manager, Stockpiles
Morton Salt
VZ/jt
Enclosure:
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123 North Wacker Drive • Chicago, IL 60606 -1743 • 312/807 -2000
SALT STORAGE AND HANDLING AGREEMENT
BETWEEN
THE CITY OF DUBUQUE, IOWA
AND
MORTON SALT INTERNATIONAL, LLC
THIS AGREEMENT is made and entered into as of August 1, 2010 by and
between the City of Dubuque ( "City ") with a place of business at 50 West 13th Street,
Dubuque, Iowa, 52001, and Morton International, LLC with is principal office and place
of business at 123 N. Wacker, Chicago, IL 60606 ( "Salt Company ").
Product to be stored and handled: Bulk Deicing Salt with anti - caking agent ( "Salt ")
Location of storage and handling facility: Purina Drive, Dubuque, Iowa ( "the
Facility ")
Term: This Agreement shall be in effect commencing on August 1, 2010, through and
including April 30, 2011.
Storage and Handling fees: Salt Company shall pay to City the following storage and
handling fee(s):
1. $2.00 per ton for Salt storage with a minimum of 30,000 tons. Payment for
the minimum shall be due and payable upon Salt Company's signing of this
Agreement. Payment for additional amounts shall be due and payable within 30
days of receipt of invoice.
2. $2.75 per ton for Salt off - loaded at the Facility with a minimum of 30,000
tons. Payment for handling shall be due and payable within 30 days of receipt of
invoice. Payment for the balance of storage and handling for the minimum
tonnage shall be due and payable by no later than December 1, 2010.
3. $2.25 per ton for Salt truck loaded at the Facility with a minimum of 30,000
tons. Payment for handling shall be due and payable within 30 days of receipt of
invoice. Payment for the balance of storage and handling for the minimum
tonnage shall be due and payable by no later than April 30, 2011.
4. Any Salt remaining at the Facility after April 30, 2011 shall be disposed of
as follows:
City shall purchase the remaining Salt but not to exceed 10,000 tons at $42.98
per ton, due and payable within 30 days of receipt of invoice.
For any Salt remaining in excess of 10,000 tons after April 30, 2011, Salt Company
shall pay on May 1, 2011, in addition to the fees paid under 1, 2, and 3, $5.00 per ton
081910ba1 Final
for storage costs and ultimate loading costs. Any Salt remaining after December 31,
2011 shall become the property of City.
City or City's subcontractor shall:
* Provide a non - permeable bulk storage pad at the Facility suitable for storing a
minimum of 30,000 tons of Salt.
* Receive and promptly unload barges for immediate delivery to Salt
Company's customers or move Salt to storage pad at the Facility. Unloading of
the barges shall involve removing and replacing barge lids, unloading promptly
and blade cleaning.
* Receive orders from Salt Company and load trucks, as directed by Salt
Company, to complete the orders.
* Ensure that each and every truck that arrives at the Facility for loading is
weighed empty, to obtain the tare weight. Trucks will be loaded and weighed to
obtain the gross weight.
* Maintain a scale certification log to verify compliance with scale certification
rules and regulations. Said log will include documented date of scale certification
and the corresponding seal number, and will, at all times, be available at the
Facility for review by Salt Company representatives.
* Ensure that the operator of the scale is properly trained and is familiar with
current and appropriate weight laws. If applicable, ensure that the operator of the
scale shall be certified by the appropriate local or state agency, with a copy of
said certificate at the Facility.
* Load all trucks within the legal load limits.
* Prepare shipping documents, barge receipts, and inventory reports in
accordance with Salt Company specifications.
* Unload barges in the order they are received (first -in, first -out), using best
efforts to unload one (1) barge per day, but in no event shall Handler be required
to unload more than six (6) total barges in any work week (i.e., Monday — Friday).
Salt Company shall:
* Pay storage and handling fees within thirty (30) days of receipt of invoice.
* Provide City with shipping documents, recaps and inbound barge schedules
and barge weights.
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In addition, the parties agree to the following terms and conditions:
1. Services. Salt Company shall from time to time during the term hereof
deliver or cause to be delivered to the Facility by barge quantities of Salt. Salt
Company shall deliver to the Facility not Tess than 30,000 tons during the term
hereof.
City shall provide all of the necessary labor and equipment, including
stevedoring, trucking to stockpile, stacking, and blade cleaning of barge, to
unload the Salt from the barges onto trucks for delivery to Salt Company's
customers or to store and stack the Salt on the storage pad. When unloading the
barges, City agrees to inspect each barge and the Salt for damage or
contamination and report any such damage or contamination to Salt Company. In
the event the Salt is damaged or contaminated, City shall suspend unloading
immediately and notify Salt Company of such damage or contamination. Salt
Company will instruct City how to proceed.
Salt Company shall, at its own expense cover the salt and provide the covering
material and proper disposal of the covering material. City shall properly stack
and shape the Salt and do all the things necessary for a third party to cover the
Salt. City shall inspect the cover on at least a weekly basis and notify Salt
Company if repairs to the cover are necessary. Repairs shall be made to the
cover at Salt Company's expense, unless the cover was damaged due to City's
negligence, in which case City shall pay for said repairs.
City shall have no responsibility for screening Salt received at the Facility, but will
use reasonable efforts to break up small lumps with City's end loaders, provided
that City determines in its sole discretion that such activities will not damage
City's equipment. When requested by Salt Company, City shall, at Salt
Company's expense, remove, reduce or crush larger lumps of salt and any
equipment required for such purpose shall be furnished at Salt Company's
expense.
2. Taxes. All taxes and assessments levied against the Facility shall be for
City's account and City agrees to indemnify and hold Salt Company harmless
from and against any liability for same. All taxes levied against the Salt, while in
store at the Facility, shall be for Salt Company's account, and Salt Company
agrees to indemnify and save City harmless from and against any liability for
same.
3. Insurance. During the term of this Agreement, City shall, at its own
expense, carry in full force and effect those insurance policies more fully
described herein:
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(a) Commercial General Liability Insurance ( "CGL "), including personal
injury, contractual liability and coverage for the property of others in City's
care, custody and control, with limits of $1,000,000.00 per occurrence.
(b) City shall either (i) delete the marine operations exclusion and the
care, custody, and control exclusion in City's CGL policy, or (ii) obtain
Wharfinger's Liability Insurance (to insure City's warranty of a safe berth
and City's obligations as bailee of Salt Company owned or leased
property) and Terminal Operator's Liability Insurance (to insure City
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 $1,000,000.00.
(c) Workers Compensation Insurance with statutory limits.
(d) Employer's Liability Insurance with limits of $1,000,000.00 per
occurrence.
(e) U.S. Longshore and Harbor Workers' Act coverage with statutory
limits.
If any work is subcontracted, City shall require each subcontractor to maintain
the insurance described above. City shall provide Certificates of Insurance
evidencing the above coverages prior to commencement of this Agreement. All
policies except Workers Compensation and Employer's Liability shall name Salt
Company, Incorporated as an additional insured. Said policies shall provide Salt
Company with thirty (30) days written notice of cancellation or material change
and shall be obtained from companies reasonably satisfactory to Salt Company.
4. Indemnity. City agrees that it shall be fully responsible for, and shall
indemnify and hold Salt Company harmless from and against, any and all losses
and damages, any and all injuries to or death of any person(s) and any and all
damage to or destruction of any property or properties caused by or arising out of
the acts or omissions of City in the performance of or failure to perform under this
Agreement and for any breach of any term of this Agreement. In addition, City
shall be fully responsible for, and shall indemnify and hold Salt Company
harmless from and against, all wages, unemployment compensation, and
workers' compensation for City employees, agents, and independent contractors.
5. Salt Quality. Any shortages of the Salt in excess of an allowed shrinkage
of 2 percent shall be City's sole liability, and City shall reimburse Salt Company
for such shortages at the then prevailing market price for the Salt; provided,
however, that City shall not be liable for loss due to an event of force majeure as
defined in Section 13 or theft, unless such losses are the result of City
negligence.
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The amount of shrink shall be the difference between the tonnage shipped in,
unloaded and stored (as verified by the barge freight bills) and the tonnage
reloaded and shipped out (as verified by the truck scale tickets).
If either party protests the weights designated on the barge fright bills or on the
truck scale tickets, the protesting party shall have the right and duty to check
such weights by weighing such inbound or outbound shipments itself and shall
inform the other party of any discrepancies. In the event the parties are unable to
resolve a dispute concerning weights, they shall have a mutually agreed upon
third party determine the weights, whose determination shall be final and binding.
6. Independent Contractors. Nothing contained herein shall be construed in
such a manner as to deem the relationship between the parties as that of
principal- agent, master - servant, partners, or joint venturers. Rather, City is an
independent contractor and has no authority to make binding commitments for or
on behalf of Salt Company, and each party shall be solely responsible for the
acts and omissions of its own employees and agents and shall further be
responsible for all wages, salaries, social security, unemployment insurance, and
all other obligations, whether compulsory or in the nature of fringe benefits, due
its own employees and agents.
7. Breach. If either party breaches of any of its obligations under this
Agreement, the non - breaching party may give thirty (30) days notice of
termination, and if the breach has not been cured during the said 30 -day period,
either party may terminate this Agreement. In addition, if there are more than
three or more material breaches in any consecutive twelve -month period, even if
cured in a 30 -day period, then this Agreement shall terminate.
In the event City (i) files a voluntary petition in bankruptcy; (ii) makes an
assignment for the benefit of creditors; (iii) is adjudicated as bankrupt; (iv)
becomes insolvent; (v) abandons the Facility; or (vi) breaches Section 11 herein,
Salt Company may terminate this Agreement effective immediately and remove
all Salt from Facility.
Termination, pursuant to this Section, while being in itself a remedy for breach,
shall not preclude any other legal or equitable remedy which is available to the
terminating party.
8. Assignment. This Agreement shall not be assigned, in whole or in part, by
either party hereto without the prior written consent of the other consent not to be
unreasonably withheld. Any purported assignment not so consented to shall not
relieve the assigning party from its obligations herein. Subject to this limitation,
this Agreement shall be binding upon the parties hereto and their respective
successors and permitted assigns. Notice of a request for assignment shall be
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given to the other party not less than 30 days prior to the proposed effective date
of assignment.
9. Access to Facility. Salt Company shall have access to the Facility at all
reasonable times for the purpose of verifying records, taking inventories,
removing the Salt or other purposes related to the operations contemplated
herein.
10. Title. Title to all of Salt Company's Salt stored at the Facility shall remain
in Salt Company. City agrees to indemnify and hold Salt Company harmless and
protect the Salt from all liens or claims arising out of transactions or litigation
between City and third parties.
11. Compliance with Laws. City shall comply with all present and future
federal, state, and municipal laws, regulations, and ordinances, including without
limitation those relating to the environment, covering facilities, equipment, and
the services contemplated under this Agreement. City represents and warrants
that it has (and will maintain throughout the term of this Agreement) all permits
from the governing local, state, and federal authorities necessary to perform the
services contemplated herein.
12. Dispute Resolution. The parties shall submit any dispute, controversy or
claim arising out of, relating to, or having any connection with this Agreement to
arbitration in Dubuque, Iowa in accordance with the commercial arbitration rules,
then obtaining, of the American Arbitration Association ( "AAA "), except to the
extent modified herein, and agree to abide by the arbitral decision and award.
Judgment upon the award shall be final and binding and may be entered by any
court of competent jurisdiction. This Agreement shall be construed in accordance
with the laws of the State of Iowa.
The arbitrators shall be appointed as follows: each party shall appoint an
arbitrator from a list to be prepared by the AAA. The arbitrator appointed by each
party must be either (a) actively engaged in the buying or selling of industrial
products and have been so engaged for a minimum of five years, or (b) retired
after at least five years of active engagement in the buying or selling of industrial
products. The party - appointed arbitrators shall select from the AAA's list a third
arbitrator who meets the above requirement. If the party- appointed arbitrators fail
to agree on a third arbitrator, the AAA shall appoint a third arbitrator who meets
the above requirement.
13. Force Maieure. If City or Salt Company is unable to perform an obligation
under this Agreement by reason of a force majeure event, the time for
performance of this obligation shall be extended until the force majeure event
ceases. However, if the force majeure event lasts for more than ninety (90) days,
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Its:
the non - affected party may terminate this Agreement immediately by giving the
other party written notice of such termination.
"Force majeure" shall mean any cause beyond the reasonable control of the
affected party preventing said affected party in whole or in part from performing
its obligations hereunder. Force majeure shall include, but is not limited to, the
following: acts of God, acts of any governmental body, whether civil or military of
foreign or domestic, acts of public enemy, riots, strikes, labor disputes, all perils
and accidents of the seas or other waters, fires, explosions, floods, winds, and
embargoes and major mechanical breakdown.
Upon occurrence of a force majeure event, the affected party shall promptly
notify the other party giving a description of the nature, cause, and probable
duration of the force majeure event. Said affected party shall exercise due
diligence to remedy and overcome the force majeure event.
14. Entire Agreement; Amendment. This Agreement constitutes the entire
agreement between the parties. There are no terms or conditions other than
those stated herein, and no agreements, understandings, representations, or
warranties, oral or written, of any kind, except those expressly set forth herein.
This Agreement shall supersede any other storage and handling agreement
previously executed by the parties, or any amendment thereto, and all such
previous agreements shall have no force and effect.
15. Notices. All notices which either party is required to give to the other party
hereunder shall be deemed to have been given if sent by U.S. mail, postage
prepaid or by overnight courier and addressed to the other party at its respective
principal address as set forth above, or at such address as the parties may later
advise.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day, month, and year first above written.
MORTON INTERNATIONAL, LLC,
MORTON SALT DIVISION
By: 7v-e.-e.
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CITY OF DUBUQUE, IOWA
By:
Michael C. Van Milligen
City Manager