HomeMy WebLinkAboutZenner USA Inc; 2021-04-20; MPA21-1463UTILDocuSign Envelope ID: 4C3A3E8C-FB91-4E4C-BFF9-9B8F680A7BEC
MPA21-1463UTIL
MASTER PURCHASE AGREEMENT FOR
DOMESTIC SERVICE COLD WATER METERS
ZENNER USA, INC.
THIS AGREEMENT is made and entered into as of the 20th day of
April , 2021, by and between the Carlsbad Municipal Water District, a Public
Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of
Carlsbad, hereinafter referred to as "CMWD", and Zenner USA, Inc., a California Corporation,
hereinafter referred to as "Seller."
RECITALS
A.The parties to this Agreement will purchase from Seller and Seller will sell to
CMWD, domestic service cold water meters during the term of this Agreement.
B.To expedite these contemplated purchases, the parties are willing to enter into this
exclusive Agreement that sets forth the terms and conditions that will govern all such transactions
between them.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, CMWD and Seller agree as follows:
1.Definitions
1.1. Buyer. With respect to purchase orders issued by CMWD, the term "Buyer" means
Carlsbad Municipal Water District.
1.2. Products. The term "Product" means those goods listed in Table 1 for which Buyer
issues to Seller a purchase order during the term of this Agreement. Products and specified terms
are described in Table 1 and Exhibit "A" — Request for Bid, which are attached hereto and
incorporated herein by this reference in accordance with the terms and conditions set forth in this
Agreement. In the event of an inconsistency between the Product description of Table 1 and
Exhibit "A", the inconsistency will be resolved with Exhibit "A" taking precedence.
2.Issuance of Purchase Orders. Buyer may issue purchase orders to Seller from time to
time for the purchase of Products. Each purchase order shall contain a description of the Products
ordered, the quantities and prices, the terms and place of delivery, and will reference Carlsbad
Municipal Water District Bid #RFB21-1371UTIL. Every purchase order issued by Buyer to Seller
following the date of this Agreement and bearing such a notation shall be governed by and be
deemed to include the provisions of this Agreement, Exhibit "A" or the placed purchase order, the
inconsistency will be resolved in the following descending order of precedence: (1) this
Agreement, (2) Exhibit "A", and (3) the purchase order.
CMWD will indicate its specific requirements on its purchase order documents including
but not limited to delivery address and instructions. There will be no minimum order and all items
must be available for the term of this Agreement. All items will be delivered F.O.B. Destination,
Freight Prepaid and Allowed, and at the prices set forth in Table 1.
3.Term. This Agreement will be effective for a period of two (2) years from the date first
above written. The Executive Manager may amend the Agreement to extend it for three (3)
additional one (1) year periods or parts thereof in an amount not to exceed two hundred fifty
thousand dollars ($250,000) per Agreement year. If the City elects to extend the Agreement, the
costs of services may be increased according to the San Diego Region Consumer Price index at
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not-to-exceed 2.5% per agreement year. Extensions will be based upon a satisfactory review of
Contractor's performance, City needs, and appropriation of funds by the City Council. The parties
will prepare a written amendment indicating the effective date and length of the extended
Agreement.
4.Compensation. The total amount for the purchase of domestic service cold water meters
over the two (2) year period shall not exceed five hundred thousand dollars ($500,000). The
amount for all purchases will not exceed two hundred fifty thousand dollars ($250,000) per
Agreement year during the initial two (2) year term. The City reserves the right to withhold a ten
percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A".
5.Termination. CMWD may terminate this Agreement at any time with thirty (30) days
written notice to Seller. Seller may terminate this Agreement at any time with ninety (90) days
written notice to CMWD.
6.Delivery.
6.1. The delivery for purchase orders placed pursuant to this Agreement shall be as
specified in the City's purchase order.
6.2. Time is of the essence on orders and delay in delivery will cause injury to the
Buyer. Should the Seller be obstructed or delayed in the production or delivery of Product(s)
required hereunder by any act or omission of the City or by strikes, and act of God, or by no fault
of the Seller in its ability to obtain materials ("Delaying Event"), then the time for delivery of the
order shall be extended for such period as may be either agreed to between Seller and City or
equal to the period of time of the Delaying Event.
6.3. Notwithstanding any other provision of this Agreement, if delivery cannot be made
within forty-five (45) days after receipt of a purchase order, Buyer may, upon knowledge of the
fact and regardless whether or not the delay would be excusable, terminate the purchase order
by written notice to Seller. The termination shall be without cost to Buyer and shall discharge all
obligations and liabilities of the Buyer/Seller under the purchase order except as to Products
previously delivered and accepted by Buyer.
7.Passage of Title and Risk of Loss. Unless otherwise specified in a particular purchase
order placed pursuant to this Agreement, title to and risk of any loss of or damage to the Products
shall pass from Seller to Buyer when the Products are accepted in writing by the Buyer using a
shipping acknowledgement form submitted by the Seller with each shipment.
8.Inspection of Product. Seller shall inspect and test all Products prior to shipment to
Buyer. In addition, all Products shall be subject to final inspection and acceptance by Buyer at
Buyer's facility. Final inspection and acceptance or rejection will be made by Buyer within thirty
(30) days after receipt of Products, and failure of Buyer to reject any Product within thirty (30)
days after receipt shall constitute acceptance. Should Buyer reject any Product for failure to
conform to the requirements of a purchase order, Buyer shall notify Seller in writing of the
rejection, giving detailed reasons for the rejection. Seller shall then have the option to repair or
replace the nonconforming Product within ten (10) days at Buyer's designated delivery facility. If
Seller fails to act to correct any nonconforming Product within this time period, then Buyer may
return any nonconforming Product(s) to Seller. Rejected items to be returned to Seller shall be
shipped at Seller's risk and expense.
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9.Warranty. Seller warrants to Buyer that all Products delivered under this Agreement shall
be free from defects in materials and workmanship, that all Products will conform to the
requirements of the order including, but not limited to, the applicable descriptions, specifications,
and drawings agreed to by the parties and, to the extent the items are not manufactured pursuant
to detailed designs furnished by Buyer, that all Products will be free from defects in design and
suitable for the intended purposes. In addition, Seller warrants that all Products will, at the time
of deliver, be free from any security interest or other lien or encumbrance.
10.Indemnification. Seller agrees to indemnify and hold harmless CMWD and the City of
Carlsbad and its officers, officials, employees and volunteers from and against all claims,
damages, losses and expenses including attorneys fees arising out of the performance of the
work described herein caused by any willful misconduct or negligent act or omission of the Seller,
any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose
acts any of them may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense CMWD or the
City of Carlsbad incurs or makes to or on behalf of an injured employee under CMWD's self-
administered workers' compensation is included as a loss, expense or cost for the purposes of
this section, and that this section will survive the expiration or early termination of this Agreement.
11.Insurance. Seller will obtain and maintain for the duration of the Agreement and any and
all amendments, insurance against claims for injuries to persons or damage to property which
may arise out of or in connection with performance of the services by Seller or Seller's agents,
representatives, employees or subcontractors. The insurance will be obtained from an insurance
carrier admitted and authorized to do business in the State of California. The insurance carrier is
required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line
insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating in
the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by
the National Association of Insurance Commissioners (NAIC) latest quarterly listings report.
10.1 Coverages and Limits. Seller will maintain the types of coverages and minimum limits
indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum
amounts of coverage will not constitute any limitations or cap on Seller's indemnification
obligations under this Agreement. City, its officers, agents and employees make no representation
that the limits of the insurance specified to be carried by Seller pursuant to this Agreement are
adequate to protect Seller. If Seller believes that any required insurance coverage is inadequate,
Seller will obtain such additional insurance coverage, as Seller deems adequate, at Seller's sole
expense. The full limits available to the named insured shall also be available and applicable to
the City as an additional insured.
10.1.1 Commercial General Liability Insurance. $2,000,000 combined single-limit per
occurrence for bodily injury, personal injury and property damage. If the submitted policies contain
aggregate limits, general aggregate limits will apply separately to the work under this Agreement
or the general aggregate will be twice the required per occurrence limit.
10.2. Additional Provisions. Seller will ensure that the policies of insurance required under this
Agreement contain, or are endorsed to contain, the following provisions:
10.2.1 CMWD will be named as an additional insured on Commercial General Liability
which shall provide primary coverage to the City.
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10.2.2 Seller will obtain occurrence coverage, excluding Professional Liability, which will
be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and any extensions
of it and will not be canceled without thirty (30) days prior written notice to City sent by certified
mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of this
Agreement, Seller will furnish certificates of insurance and endorsements to CMWD.
10.4 Failure to Maintain Coverage. If Seller fails to maintain any of these insurance coverages,
then CMWD will have the option to declare Seller in breach, or may purchase replacement
insurance or pay the premiums that are due on existing policies in order to maintain the required
coverages. Seller is responsible for any payments made by CMWD to obtain or maintain
insurance and CMWS may collect these payments from Seller or deduct the amount paid from
any sums due Seller under this Agreement.
10.5 Submission of Insurance Policies. CMWD reserves the right to require, at anytime,
complete and certified copies of any or all required insurance policies and endorsements.
12. Notices. All notices and other communications require or authorized under this
Agreement shall be given in writing either by personal delivery or by first class mail addressed to
the respective party.
The name of the persons who are authorized to give written notice or to receive written notice on
behalf of City and on behalf of Seller under this Agreement are:
For City:
Name Mario Remillard
For Seller:
Name Rick Sanders
Title President
Address 15280 Addison Road, Suite 240
Addison, TX 75001
Phone 772-285-1035
Email rsandersAzennerusa.com
Title Utilities Supervisor
Dept Utilities
City of Carlsbad
Address 5950 El Camino Real
Carlsbad, CA 92008
Phone 760-603-7343
Each party will notify the other immediately of any changes of address that would require any
notice or delivery to be directed to another address.
13.Compliance with Laws. Seller will comply with all applicable local, state and federal laws
and regulations prohibiting discrimination and harassment and, if required, will obtain and
maintain a City of Carlsbad Business License for the term of this Agreement and any amendments
to the Agreement.
14.Claims and Lawsuits. By signing this Agreement, Seller agrees it may be subject to civil
penalties for the filing of false claims as set forth in the California False Claims Act, Government
Code sections 12650, et seg., and Carlsbad Municipal Code sections 3.32.025 et seq. Seller
further acknowledges that debarment by another jurisdiction is grounds for CMWD to terminate
this Agreement.
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16. Venue and Jurisdiction. Seller agrees and stipulates that the proper venue and
jurisdiction for resolution of any disputes between the parties arising out of this Agreement is the
Superior Court of California, County of San Diego, California.
16.Assignment. Seller may not assign this Agreement or any part of it, nor may it assign any
monies due or that may become due under it, without the prior written consent of CMWD.
17.Amendments. This Agreement may be amended by mutual consent of CMWD and
Contractor. Any amendment will be in writing, signed by both parties, with a statement of
estimated changes in charges or time schedule.
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18. Authority. The individuals executing this Agreement and the instruments referenced in it
on behalf of Seller each represent and warrant that they have the legal power, right and actual
authority to bind Seller to the terms and conditions of this Agreement.
Executed by Contractor this 29
SELLER
ZENNER USA, INC., a California
Corporation
day of April , 2021.
CARLSBAD MUNICIPAL WATER
DISTRICT, a Public Agency organized
under the Municipal Water Act of 1911,
and a Subsidiary District of the City of
Carlsbad
By: By:
Plod S'oilatrS
(sign here)
Rick Sanders, President
(print name/title)
Matt Hall, President
ATTEST:
By:
2 Z),o 7/1a.4,• for
(sign here)
Ron Gallon, Secretary
(print name/title)
Barbara Engleson, Secretary
Proper notarial acknowledgment of execution by Contractor must be attached. If a corporation,
Agreement must be signed by one corporate officer from each of the following two groups:
Group A Group B
Chairman, Secretary,
President, or Assistant Secretary,
Vice-President CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal
Water Act of 1911, and a Subsidiary District of the City of Carlsbad
APPROVED AS TO FORM:
CELIA A. BREWER, General Counsel
BY:
Assistant General Counsel
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EXHIBIT "A"
TABLE 1
COST OF SERVICES
Domestic service cold water meters manufactured and provided by Zenner USA.
ITEM
NO.
UNIT QTY DESCRIPTION UNIT
PRICE
1 EA 1 5/8" x 3/4" x 7 1/2" Ultrasonic Meter $93.25
2 EA 1 3/4" x 3/4" x 9" Ultrasonic Meter $100.45
3 EA 1 3/4" x 3/4" x 7 1/2" Ultrasonic Meter $94.20
4 EA 1 1" x 10 3/4" Ultrasonic Meter $112.00
5 EA 1 1 1/2" x 13" Ultrasonic Meter $179.28
6 EA 1 2" x 17" Ultrasonic Meter $294.49
7 EA 1 1 1/2" x 13" Turbine Meter $310.48
8 EA 1 2" x 17" Turbine Meter $509.00
TOTAL NOT TO EXCEED COST PER AGREEMENT YEAR IS $260,000
Bidder's Stated Delivery Time
Delivery: 20 business days after receipt of order.
Specifications and General Provisions
Specifications and general provisions as published in the Request for Bid Number RFB21-
1371UTIL dated February 12, 2021, titled "Domestic Service Cold Water Meters", and the
Contractor's bid submitted are incorporated herein by this reference.
TABLE 2
Spending authority will not exceed $500,000 over a 2 year period.
Year Spending Authority
1 $250,000
2 $250,000
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