PURCHASE AGREEMENT
CITY OF PACIFICA – WASTEWATER DIVISION
PURCHASE ORDER NO.
Seller (Vendor): Buyer:
Name Thermal Process Systems Name: City of Pacifica
Address 627 E 110th Ave. Address: 540 Crespi Drive
City, State Zip: Crown Point, IN 46307 City, State, ZIP: Pacifica, CA 94044 Attn: Nathan Cook Louis Sun
Phone: (219)765-7250 Fax: Phone: (650)738-4662 Fax: (650) 355-7256 E-mail: [email protected] Fed. Tax I.D.: E-mail: [email protected] Project Information (If Applicable): Ship To:
Charge to Calera Creek Water Recycling Plant
Acct#: 34.900000.52800.P002.000 – Digester 700 Pacific Coast Highway Pacifica, CA 94044
Order Date Ship Via Payment Terms
July 8, 2024 Freight Net 30 days of invoice Upon Receipt of Equipment Delivery
Buyer and Seller agree as follows:
MATERIAL AND/OR EQUIPMENT TO BE PROVIDED: Vendor shall furnish the materials or equipment described below in strict compliance with the Quotation from Thermal Process Systems dated 5-31-2024 (Attachment 1) at the price or prices set forth opposite each item and within the times stated below in accordance with the terms and provisions of this Purchase Agreement, including the attached Terms and Conditions, which are incorporated into and made a part of this Agreement:
Item
No.
Item Description Budget
Acct No.
Quantity Unit Price Extension Delivery
Date
1 Fabrication of jet header and
replacement for Tank 3 & 4
34.900000.52800.P002.000 1 $ 179,647 $ 179,647 12-16 wks TOTAL $ 179,647
Sales Tax : $ TBD
Shipping: $ 0
P.O. Total: $ 179,647.00
PURCHASE AGREEMENT
Project Title: Thermal Process Systems ATAD Phase 3
Special Terms and Conditions
Shipping: Show Purchase Order number on all packages and invoices.
All purchases are F.O.B Pacifica unless otherwise specified on Purchase Order.
Charges: All transportation charges must be prepaid and shown separately on all invoices.
City of Pacifica is exempt from Federal Excise Tax.
Purchase up to $10,000 (must be approved
by Department Head or authorized signator)
Approved: _______________________
Name: LISA PETERSEN
Title: Director of Public Works
Purchase between $10,000.01 and $25,000
(must be approved by the Assistant City
Manager)
Approved: _______________________
Name: YULIA CARTER
Title: Assistant City Manager
Purchase between $25,000.01 and $75,000
(must be approved by the City Manager)
Approved: _______________________
Name: KEVIN WOODHOUSE
City Manager
Purchase above $75,000
(must be approved by the City Council)
Date City Council Approved: __July 8, 2024_______
Buyer: CITY OF PACIFICA
Authorized Signature: _______________________
Name: KEVIN WOODHOUSE
Title: City Manager
Vendor: THERMAL PROCESS SYSTEMS
Authorized Signature: _______________________
Name:
Title:
If Seller is located in the City of Pacifica, does Seller have a current business license? Yes No
Robert J Fischer
President-Thermal Process Systems, Inc.
PURCHASE AGREEMENT
Project Title: Thermal Process Systems ATAD Phase 3
PURCHASE ORDER TERMS AND CONDITIONS
DEFINITIONS: The term "Buyer" as used in this Purchase Order means the City of Pacifica, and the term "Seller" means the person, firm, or corporation from whom the material or equipment described in the purchase order is ordered.
ACCEPTANCE: The attached Acceptance Copy shall be signed and returned by the Seller within ten (10) calendar days after it is received by the Seller. The receipt by the Buyer of the signed Acceptance Copy or the initiation of performance under this Purchase Order by the Seller shall constitute acceptance of the Purchase Order by the Seller, including all of the terms and conditions herein. Acceptance is limited to the terms stated herein. Any additional or different terms and conditions proposed by the Seller are rejected unless expressly agreed to in writing by City Purchasing Agent or authorized agent.
COMPLETE AGREEMENT: This Purchase Order, including all applicable terms, conditions and specifications, shall constitute the sole and exclusive agreement between the parties. This Purchase Order supersedes all other writings and negotiations, written or oral. The City of Pacifica will not be responsible for goods delivered without a Purchase Order properly signed by the City Purchasing Agent or authorized agent. When this Purchase Order covers a purchase rendered over a stated period of time, Seller must obtain a new order upon expiration of the time period to authorize the purchase for an additional period of time.
DEFAULT: The Buyer may terminate the whole or any part of the purchase in any one of the following circumstances: (1) If the Seller fails to make delivery or fails to perform within the time specified herein or any extension thereof; or (2) If Seller delivers nonconforming goods; or (3) If Seller fails to perform in accordance with the material provisions of this agreement, or so fails to make progress as to endanger performance of this Purchase Order in accordance with its terms. In the event of any such failure Buyer will provide Seller with written notice of the default and Buyer's intention to terminate for default if Seller fails to cure the default to Buyer's satisfaction within seven (7) calendar days of Buyer' notice. If Seller fails to cure or correct the default within seven days, the Buyer may, without further notice to Seller, procure upon such terms and in such manner as the Buyer may deem appropriate, items similar to those terminated, and the Seller shall be liable to the Buyer for any excess costs of such similar items; however, the Seller shall continue the performance of this Purchase Order to the extent not terminated.
The rights and remedies of the Buyer provided in this clause shall not be exclusive, and are in addition to any other rights and remedies provided by law or under this Purchase Order.
CHANGES: Buyer may direct in writing changes, including additions to or deletions from the quantities originally ordered, or in the specifications or drawings. If any such change causes a material increase or decrease in the cost of, or the time required for, performance hereunder, an equitable adjustment shall be made in the price or schedule. Any claims for adjustment which Seller believes result from any change directed by Buyer shall be asserted in writing by Seller no later than ten (10) days from the date of Seller's receipt of any such direction. Equitable adjustments for any claims or changes under this agreement, including claims arising from terminations or suspensions directed under DEFAULT above, of this agreement, will be made by
PURCHASE AGREEMENT
Project Title: Thermal Process Systems ATAD Phase 3
written Change Order. Nothing contained herein shall excuse Seller from proceeding with the change as directed prior to negotiation of any adjustment. Whether made pursuant to this clause or by mutual agreement, changes shall not be binding upon the Buyer, except when confirmed in writing by a member of the Buyer’s Purchasing Department.
INVOICES: Seller shall send Buyer a separate invoice for each shipment. Invoices shall not be issued prior to delivery of items. Payment shall not be made prior to receipt of items and an invoice. Credit and discount periods will be computed from the date of receipt of the invoice to the date the Buyer’s check is mailed. Unless freight and other charges are itemized, the discount will be taken on the full amount of the invoice. Payment will be made within thirty (30) days after approval of the invoice by the Buyer.
TITLE AND RISK OF LOSS: All prices shall be F.O.B. Factory. The Seller shall be responsible for safe and adequate packing of the items, which shall conform to the carriers’ requirements. The Seller shall separately number all cases and packages, showing the corresponding numbers on the invoices. An itemized packing slip bearing this Purchase Order number shall be placed in each container. No extra charge shall be made for packaging or packing materials unless authority therefor is set forth in this Purchase Order. Seller shall assume and pay for any and all loss or damage to the merchandise from any cause whatsoever until delivered to Buyer at the specified destination.
DELIVERY: Timely performance and deliveries are essential to this Purchase Order. The Buyer reserves the right to refuse deliveries made in advance of the delivery schedule.
Overshipment allowances, if authorized, will be applied to the entire order. If the Buyer agrees to accept deliveries after the date of delivery has passed, the Buyer shall have the right to direct the Seller to make shipment to the delivery point set forth in this Purchase Order by the most expeditious means, and the total cost of such expedited shipment and handling shall be borne by the Seller. Acceptance of late deliveries shall not be deemed a waiver of the Buyer’s right to hold the Seller liable for any loss or damage resulting therefrom, nor shall it act as a modification of the Seller’s obligation to make future deliveries in accordance with the delivery schedule.
DELAYS: Seller will not be liable for delays in performing its obligations to the extent the delay is caused by an unforeseeable condition which is beyond Seller’s reasonable control and without Seller's fault or negligence. Acts of God, such as storms or floods, as well as government priorities, acts of civil or military authorities, fires, strikes, epidemics, war or riot are examples of events which will be excusable for being beyond Seller's reasonable control, only upon fulfillment of the following conditions: (a) within seven (7) days of the commencement of any excusable delay, Seller shall provide Buyer with written notice of the cause and extent thereof as well as a request for a schedule extension for the estimated duration thereof, and (b) within seven (7) days of the cessation of the event causing delay Seller shall provide Buyer with written notice of the actual delay incurred, upon receipt of which, the date of promised delivery shall be extended for the time actually lost by reason of an excusable delay.
INSPECTION AND APPROVAL: All items are subject to final inspection and approval after delivery to Buyer. If any items are defective in material or workmanship or otherwise not in conformity with the requirements of this Purchase Order, the Buyer shall have the right to
PURCHASE AGREEMENT
Project Title: Thermal Process Systems ATAD Phase 3
require Seller to correct or replace them. Final acceptance or rejection shall be made by the Buyer as promptly as practicable after delivery. Final acceptance shall be conclusive except with respect to latent defects, fraud or such gross mistakes as amount to fraud, or with respect to the Buyer’s rights under the “Warranty” clause.
WARRANTIES-GUARANTEES: The Seller warrants that the items, at time of delivery, shall conform to the Buyer’s specifications, the requirements of this Purchase Order, approved sample or samples, if any, and are free from defects in design, material and workmanship. Warranty will be as described in the attached Vendor’s Quotation. At the Buyer’s option, the Seller shall promptly either repair or replace defective items after receipt of the Buyer’s written notice of a defect. Transportation charges for the return and redelivery of defective items shall be borne by the Seller. Seller also warrants that said merchandise is free and clear of all liens and encumbrances whatsoever and the Seller has good and marketable title to same, and Seller agrees to indemnify, defend and hold the City of Pacifica, its officers, agents and employees free and harmless against any and all claimants to said merchandise.
SAFETY: All equipment and materials shall comply with all Federal, State and local safety rules and regulations including OSHA. Where applicable, materials must be labeled in accordance with Section 5194, Title 8, of the California Administrative Code. The Seller is required to include a Material Safety Data Sheet prepared in accordance with Section 5194(9) with each shipment of all such materials to the City.
EQUAL OPPORTUNITY EMPLOYER: It is the policy of the City of Pacifica that in connection with all materials furnished or work performed under this Purchase Order, there be no discrimination against employees because of race, religion, color, sex or national origin, and therefore the Seller agrees to comply with applicable Federal and California laws including, but not limited to, the California Fair Employment Practices Act.
TAXES: Unless prohibited by law, Seller shall pay and has included in the prices of this Purchase Order any federal, state or local tax, transportation tax, or other tax which is required to be imposed upon the items ordered hereunder, or by reason of their sale or delivery.
TERMINATION FOR CONVENIENCE: Buyer shall have the right to terminate this Purchase Order in whole or in part at any time, and from time to time, by written notice effective upon receipt by Seller of such notice, even though Seller is not in breach of any obligation hereunder.
Upon receipt of notice of termination, Seller shall immediately discontinue performance and shall comply with Buyer’s instructions concerning disposition of completed and partially completed items, work in progress and materials acquired pursuant to this Purchase Order. In the event of such termination, Seller shall be paid an amount in settlement to be mutually agreed upon by the parties which shall cover Seller’s reasonable costs of performance incurred prior to termination in connection with the items for which this Purchase Order is terminated plus a reasonable profit based upon such costs. However, said payment shall not exceed the price specified herein for such items. Seller shall advise the Buyer, in writing, of Seller’s claim, if any, for termination costs within ten (10) days after receipt of the notice of termination.
Termination in accordance with this article shall not affect Buyer’s obligation to pay for items accepted by Buyer prior to such termination.
PURCHASE AGREEMENT
Project Title: Thermal Process Systems ATAD Phase 3
ATTACHMENT 1
Quotation
Date
5/31/2024
Quote #
P240660 A
Name / Address
City of Pacifica
Accounts Payable
170 Santa Maria Avenue
Pacifica, CA 94044
650-738-4663 FAX: 650-355-7256
Ship To
CALERA CREEK WATER RECYCLING PLANT
700 Coast Highway
Pacifica, CA 94044
THERMAL PROCESS SYSTEMS
Terms
Net 30
Project
84024P
Total
627 E 110th Ave
Crown Point, IN 46307
219-663-1034 x 100
[email protected]
TPS accepts ACH Payments, please contact Brittney Fischer for the instructions, 219-663-1034 x 100.
TPS accepts Credit Card Payments under $5,000.00.
All shipping charges will be added to your invoice, unless noted.
Work, installation, and materials not included, unless noted.
Quotation is valid for Thirty (30) days from quotation date.
Condition of Sale: See Thermal Process Systems "Terms and Conditions".
Thermal Process Systems is pleased to provide the following offering per your conversation with one of employees. Please contact us with any questions.
Thank you for your continued bussiness!
Description Cost Qty Lead time Total
Jet Header Replacement for Tank 3 and 4 179,647.00 1 12-16 Weeks 179,647.00 Pacifica will provide the following:
• Ladder, access to tank
• Fresh air fan
• Bobcat and operator to raise and lower the bucket to remove material
• Hydraulic Pump
Fibermass needs to account for the following:
• All laborers and watch person. Aside from Dave to operate the bucket/hoist,
you will need to bring 2-3 guys.
• Gas monitor
• Harness
• Pacifica would like to do both tanks in one trip again, which means you may
have 3-4 days downtime between tanks.
• All extra material shall be removed after job is complete, including unused
supports.
$179,647.00
THERMAL PROCESS SYSTEMS TERMS AND CONDITIONS
FOR PARTS PROPOSALS
DEFINITIONS
TPS-Thermal Process Systems
Purchaser - Party issuing purchase order
Owner - Party ultimately owning equipment
Offering - Offer to sell by TPS
Purchase Order - Acceptance of order
Acknowledgment - Confirmation by TPS of terms of agreement
CONTROLLING PROVISIONS
The terms and conditions set forth herein constitute the entire agreement between the parties. The selling price is based on the terms and equipment in the TPS Offering. The TPS acknowledgment of purchase order confirms the offered price, terms and equipment. The acknowledgment does not recognize any other price, terms or equipment contained in the purchase order which conflict with the TPS offering, unless specifically noted in the acknowledgment or otherwise confirmed in writing.
1. ACCEPTANCE - Acceptance of purchase order is indicated only by the acknowledgment of purchase order.
Commencement of performance by TPS does not constitute acceptance.
2. OFFERING - Unless otherwise stated by TPS the price contained herein is firm, subject to acceptance within 30 days.
Typographical or clerical errors in quotations are subject to correction by TPS.
3. TERMS OF PAYMENT –All invoices will be dated day of shipment. Unless otherwise stated by TPS, payment terms are net 30 days from date of each invoice. Interest at the lawful maximum rate on sums past due and related collection fees will be added to the delinquent amount and paid by Purchaser. If at any time in the judgment of TPS the financial condition of the Purchaser does not justify continuance of production or shipment, TPS may require adequate assurance of performance.
4. TAXES - Prices on the products specified herein are exclusive of any city, state, federal and foreign excise taxes, duties and customs, including, but not necessarily limited to taxes on manufacture, sales, receipts, gross income, occupation, use, and similar taxes. If any are imposed they are to be paid by the Purchaser. Whenever applicable, Purchaser shall provide TPS with tax exemption documentation acceptable to the taxing authorities.
5. SHIPMENT – Unless otherwise stated, all prices are F.O.B. TPS shipping point. Method and route of shipment are at the discretion of TPS, unless purchaser supplies explicit instructions. Identification of the goods to the contract shall occur as each shipment is placed in the hands of the carrier.
Cost of unloading equipment and any demurrage charges on shipments to Purchaser are to be borne by Purchaser. In order to maintain scheduled shipment dates TPS reserves the right to ship equipment less certain "buy-out" items. These items, when available from the manufacturer, will be shipped to the job site for installation by Purchaser. The installation and fit up, if necessary, will be for the account of Purchaser.
6. DELIVERIES - Statements as to expected dates of shipment from factory represent the best judgment of TPS and are based upon prompt receipt of all necessary information, including but not limited to, the return of approved drawings.
7. DELAYS - TPS will not be liable for any delay in the performance of order or contracts or in the delivery or shipment of goods, or for any damages suffered by Purchaser by reason of such delay nor shall the order be subject to cancellation, when such delay is directly or indirectly caused by, or in any manner arises from, fires, floods, accidents, riots, acts of God, war, governmental interference or embargoes, strikes, labor difficulties, shortage of labor, fuel, power, materials or supplies, transportation delays, or any other cause or causes (whether or not similar in nature to any of these hereinbefore specified) beyond the control of TPS.
It is not feasible for TPS to hold equipment within its facilities beyond the scheduled completion date. If Purchaser cannot accept delivery on the scheduled delivery date, TPS will, if circumstances permit, arrange for storage of the equipment for a reasonably limited period of time provided that Purchaser remits full payment for the equipment plus Purchaser shall assume cost of storage risks incident to storage.
8. GUARANTEE - TPS warrants that the material and workmanship going into the TPS Product is of good quality and in conformity with the best commercial practice.
Unless otherwise stated parts found to be defective in material or workmanship under normal use and service within one (1) year after shipment will be repaired or replaced without charge F.O.B. original point of shipment, the responsibility of TPS being limited to the cost of the defective parts. Decomposition by chemical action and wear caused by the presence of abrasive materials shall not constitute defects. In no event shall TPS be liable for consequential or special damages, or for transportation, installation, adjustment, or other expenses which may arise in connection with such replacement or repair.
ORP and pH Probes will be covered under warranty for three (3) months after shipment. All pump replacement parts will be covered under warranty for six (6) months after shipment.
Thermal Process Systems Terms & Conditions Page 2 of 2
THIS WARRANTY IS EXPRESSLY MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS.
Equipment may be returned for credit or replacement only after written TPS authorization and shipping instructions.
9. PATENTS - TPS agrees to defend, at its own expense, any suit brought against Owner on a complaint that any product furnished on this order constitutes an infringement of a patent, provided that TPS is notified in writing of such suit within 10 days after service of process therein on Owner, and all papers therein are delivered to TPS and TPS is given the authority, information and assistance to defend against the suit. TPS agrees to pay all damages and costs awarded therein against Owner. The foregoing states the entire liability of TPS for patent infringement. Purchaser and/or Owner shall hold TPS harmless for any expense or loss resulting from infringement of patents or trademarks arising from compliance with Purchaser's and/or Owner's designs or specifications.
10. SERVICE - The price quoted is for machinery and equipment. Service, if included in the quotation is an obligation to the Owner and will be rendered only after full payment of purchase price by the Purchaser.
11. CANCELLATION - Cancellation or suspension of order will be accepted only upon terms which reimburse TPS for costs incurred plus normal mark-up, and must be agreed to in writing by an officer of TPS.
12. EQUIPMENT CHANGES - Changes in equipment design or specifications quoted by TPS will be made only with the consent of TPS and on terms acceptable to TPS.
13. CLAIMS - After TPS has delivered the equipment to the carrier, the carrier is responsible for its safe and complete delivery to the Purchaser or Owner. It is consignee's responsibility to inspect and accept these goods and promptly report to the carrier and TPS any shortages, damages or other problems that might arise that will unfavorably influence the installation and/or operation of this equipment. Any of these conditions must also be noted on the carriers receipt.
14. CODES - TPS equipment and accessories are all designed in good faith with the intent of complying with all applicable codes existing at time of quotation. TPS shall not be responsible for any failure to comply with such codes which results from non-conforming location, operation, use or maintenance of the equipment or from alteration of the equipment not authorized by TPS, or from any option or accessory to the equipment which was available to the Purchaser or Owner but omitted at his direction, or from any design or instructions furnished by Purchaser or by Owner. Any liability to TPS for violations of codes shall be limited to modifications or replacement of the equipment so that it complies with the codes. TPS shall not be liable for any fines, penalties, or consequential damages. The TPS price does not include the cost of inspection, permits or fees related to verifying compliance with codes, regulations, standards or specifications.
15. BACK CHARGES - Back charges will not be accepted by TPS unless an officer of TPS has approved them in advance in writing.
16. INDEMNIFICATION - Purchaser shall indemnify and hold TPS harmless from all damages, liability and expense (including reasonable attorney's fees) arising out of claims or law suits of third parties based on or involving the equipment or its use, handling or operation.
17. LIMITATION OF LIABILITY - TPS's liability, howsoever arising with respect to any of the obligations which it may have assumed by reason of its performance of the work, is specifically limited as provided herein, and in no event shall TPS, its employees, agents and/or subcontractors be liable for any special, indirect or consequential damages whatsoever, including without limitation, any delays or loss of time in putting the system into operation, or any delays or loss of time to other parts of OWNER'S plant, or loss of production, profits, products, chemicals, utilities, etc. Under no circumstances shall TPS's total liability for any cause including without limitation tort, performance guarantee, contract warranty (expressed or implied), strict liability or otherwise arising out of this Agreement, exceed the lesser of the actual loss, harm or damage or the original purchase price of the involved equipment or system sold by TPS to this purchaser.
18. ARBITRATION - Any controversy or claim arising out of or relating to this agreement or the performance or breach thereof that cannot be settled by the officers of each party shall be settled by arbitration in the city of Crown Point – Lake County, Indiana, in accordance with the then current rules and procedures of the American Arbitration Association.