Item 10 Approval of Assignment and Assumption Agreement with Eurofins Flowers`` zwofor
ocoee
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AGENDA ITEM COVER SHEET
Meeting Date
\Item #
Contact Name:Trent Ho
Contact Phone:407-554-7241
1 19, 2022
10
Reviewed by:
Department Assistant Director:Jen Bolli
City Manager:
Subject: Approval of Assignment and Assumption Agreement with Eurofins EnVAIMU T6sting
Southeast LLC d/b/a Eurofins Flowers
Background Summary:
On December 15, 2020, the City of Ocoee entered into an agreement with Flowers Chemical
Laboratories to provide laboratory analytical services for the City Water and Wastewater Facilities. On
February 9, 2022, Eurofins Environment Testing Southeast, LLC entered into an agreement to
purchase Flowers Chemical Laboratories. The company is now operating under the d/b/a Eurofins
Flowers and wishes to assume the agreement with the City of Ocoee, with no changes being made to
the obligations, duties, liabilities and commitments of the original agreement.
Issue:
Should the Honorable Mayor and City Commission approve the Assignment and Assumption
Agreement with Eurofins Environment Testing Southeast LLC d/b/a Eurofins Flowers?
Recommendations:
Staff recommends approval of the Assignment and Assumption Agreement with Eurofins Environment
Testing Southeast LLC d/b/a Eurofins Flowers.
Attachments:
Original Signed Agreement with Flowers Chemical Laboratories
Assignment and Assumption Agreement with Eurofins Environment Testing Southeast LLC d/b/a
Eurofins Flowers
Financial Impact:
There is no Financial Impact to the budget with approval of the Assignment and Assumption
Agreement.
Type of Item: (please mark with an 'k )
Public Hearing
Ordinance First Reading
Ordinance Second Reading
Resolution
X Commission Approval
Discussion & Direction
For Clerk's Dept Use:
Original Document/Contract Attached for Execution by City Clerk
Original Document/Contract Held by Department for Execution
Consent Agenda
Public Hearing
Regular Agenda
Reviewed by City Attorney N/A
Reviewed by Finance Dept ( N/A
Reviewed by ( ) N/A
tiff eurofins
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement is made effective March 1, 2022 (the "Effective
Date") by and among the City of Ocoee ("Client"); Flowers Chemical Laboratories, Inc.
("Assignor" or "FCL"); and Eurofins Environment Testing Southeast, LLC d/b/a Eurofins Flowers
("Assignee" or "EETSE").
WHEREAS, Client and FCL entered into an agreement for laboratory analytical services dated
December 15, 2020, (hereinafter, the "Agreement"); and
WHEREAS, FCL entered into an agreement with EETSE dated February 9, 2022 pursuant to
which EETSE has agreed to purchase the assets of FCL with anticipated closing date of March
1, 2022; and
WHEREAS, FCL now desires to transfer and assign all of its rights and interests in and to, and
obligations under, the Agreement to Assignee effective as of the Effective Date listed above;
and
WHEREAS, Assignee desires to accept all such rights, interests and obligations as the
assignee and transferee; and
NOW, THEREFORE, in consideration of the mutual covenants and promises made by the
parties to this Assignment and Assumption Agreement, Client, Assignor and Assignee hereby
covenant and agree as follows:
1. Assignment and Assumption. Effective as of the Effective Date, Assignor hereby
transfers and assigns the Agreement to Assignee, and Assignee hereby accepts the
assignment of the Agreement by Assignor and acquires all of the rights, interests and
obligations in and to the Agreement. Assignee hereby assumes the Agreement and
agrees to perform all obligations, duties, liabilities and commitments of the Assignor
under the Agreement, of whatever kind or nature. Client hereby consents to the
assignment of the Agreement to Assignee.
2. No Fee. There shall be no fee payable to or by Assignor, Assignee, or Client with
respect to the assignment of the Agreement.
3. Governing Law. This Assignment Agreement shall be governed by the laws of the
State of Florida applicable to contracts made and performed in that State without
giving effect to that State's choice of law principles.
4. Counterparts. This Assignment Agreement may be executed in one or more
counterparts, including electronic counterparts, each of which shall be deemed to be
an original copy of this Assignment Agreement, and all of which, when taken
together, shall be deemed to constitute one and the same agreement. Delivery of
such counterparts by electronic means (in PDF or tiff format) shall be deemed
effective as manual delivery.
[SIGNATURE PAGE FOLLOWS]
tiff e u rof i n s
IN WITNESS WHEREOF, each of the Parties has executed this Assignment and Assumption
Agreement by its respective duly authorized officer as of the Effective Date set forth in the first
paragraph above.
CLIENT:
City of Ocoee
Signature
By:
Title:
Date:
ASSIGNOR:
FLOWERS CHEMICAL LABORATORIES, INC.
Signature
By: Jeff Flowers
Title: President
Date:
ASSIGNEE:
Eurofins Environment Testing Southeast LLC d/b/a Eurofins Flowers
Signature
By: Alex Montoya
Title: President
Date:
oil
CITY OF OCOEE SIGNATURE PAGE
FOR ASSIGNMENT AND ASSUMPTION AGREEMENT
FLOWERS CHEMICAL LABORATORIES TO EUROFINS ENVIRONMENT TESTING
SOUTHEAST LLC d/b/a EUROFINS FLOWERS
ATTEST:
Melanie Sibbitt, City Clerk
(SEAL)
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA
APPROVED AS TO FORM AND LEGALITY
THIS DAY OF , 2022.
SHUFFIELD, LOWMAN & WILSON, P.A.
Scott A. Cookson, City Attorney
APPROVED:
CITY OF OCOEE, FLORIDA
Rusty Johnson, Mayor
DATE:
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING HELD
ON , 2022
UNDER AGENDA ITEM NO.
AGREEMENTFOR
LABORATORY SERVICES FOR CITY WATER & WASTEWATER FACILITIES
THIS AGREEMENT FOR LABORATORY SERVICES FOR CITY WATER &
WASTEWATER FACILITIES (this "Agreement") is made this -9 Oday of Okarr 2020,
by and between the CITY OF OCOEE, a Florida municipal corporation, whose mailing address
is 150 North Lakeshore Drive, Ocoee, Florida 34761 (hereinafter referred to as the "City") and
FLOWERS CHEMICAL LABORATORIES INC., a Florida corporation, whose mailing
address is 481 Newburyport Avenue, Altamonte Springs, Florida 32701(hereinafter referred to as
the "Contractor").
WITNESSETH:
WHEREAS, the City desires to enter into an Agreement with the Contractor to perform the
work set forth in that certain Invitation to Bid ITB 421-001 (the "Work"), and any amendments
thereto being attached hereto as Exhibit "A"; and
WHEREAS, the Contractor is capable of performing the Work and agrees to perform the Work
pursuant to the terms of this Agreement, and for the amounts specified in the Contractor's
Proposal, the Contractor's Proposal and any amendments thereto being attached hereto as
F.xbihit "R".
NOW THEREFORE, in consideration of the premises and other good and valuable
considerations exchanged between the parties hereto, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
Section 1. Scope of Agreement. The terms and conditions of Exhibit "A attached hereto as well
as the terms and conditions of Exhibit "B" attached hereto are incorporated by reference herein
as fully as if herein set forth. Unless otherwise specified herein, the Contractor is to furnish all
materials, tools, equipment, labor, supervision, and consumables to complete the Work.
Section 2. Term of Agreement. This Agreement shall consist of one (1) initial three (3) year
term beginning on December 15, 2020 (the "Effective Date"), with two (2) separate automatic
one-year extensions, for a total of five (5) years, unless terminated by the City upon the issuance
of written notice by the City to the Contractor provided not later than thirty (30) days prior to the
expiration of any renewal year term. The City shall have the option of extending the term an
additional one (1) year. Each term is renewable with the condition that the City's obligation to
pay under this Agreement for each year is contingent upon the City in its good faith judgment
having sufficient funds to make an annual appropriation for the work to be provided under this
agreement.
Section 3. Compensation. Contractor agrees to provide the services and materials as specified
in Exhibit "A" for the amount specified in Exhibit "B". The amount as specified in Exhibit "B"
may be increased or decreased by the City under the Extra Work provision of this Agreement,
through the issuance of an Addendum, if applicable. Any prices specified in this Agreement,
will remain firm for the initial three (3) year term of this Agreement. After the initial three (3)
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ITB #21-001 Laboratory Services for City Water & Wastewater Facilities
year term of this Agreement, price adjustments will be allowed pursuant to the Price Adjustment
provision of this Agreement.
Section 4. Payment. All invoices received by the City are payable within (30) days from
receipt, provided they have first been approved by the City, and the City has accepted the Work
for which payment is sought. The City reserves the right, with justification, to partially pay any
invoice submitted by the Contractor. All invoices shall be in duplicate and directed to: City of
Ocoee, Accounts Payable, 150 North Lakeshore Drive, Ocoee, Florida 34761-2258. All invoices
must be clearly marked: City Agreement #ITB 21-001 Laboratory Services for City Water
& Wastewater Facilities.
Section 5. General Conditions.
A. Patents and Copyrights. The Contractor shall pay all royalties and assume all costs
arising from the use of any invention, design, process, materials, equipment, product or
device in performance of the Work, which is the subject of patent rights or copyrights.
Contractor shall, at its own expense, hold harmless and defend the City against any claim,
suit or proceeding brought against the City which is based upon a claim, whether rightful
or otherwise, that the Work, or any part thereof, furnished under this Agreement,
constitutes an infringement of any patent or copyright of the United States. The
Contractor shall pay all damages and costs awarded against the City.
B. Termination for Default.
1) The performance of Work under this Agreement may be terminated by the City, in whole
or in part, in writing, whenever the City shall determine that the Contractor has failed to
meet the performance requirements of this Agreement.
2) The City has a right to terminate for default if the Contractor fails to perform the Work,
or if the Contractor fails to perform the Work within the time specified in the Agreement,
or if the Contractor fails to perform any other provisions of the Agreement.
3) Failure of a Contractor to perform the required Work within the time specified, or within
a reasonable time as determined by the City or failure to redo the Work when so
requested, immediately or as directed by the City, shall constitute authority for the City to
hire another contractor to perform the Work. In all such cases, the Contractor or his
surety, shall reimburse the City, within a reasonable time specified by the City, for any
expense incurred in excess of the Agreement prices.
4) Should public necessity demand it, the City reserves the right to utilize services which are
substandard in quality, subject to an adjustment in price to be determined by the City.
The Contractor shall not be liable for any excess costs if acceptable evidence has been
submitted to the City that failure to perform the Work was due to causes beyond the
control and without the fault or negligence of the Contractor.
5) Termination for Convenience. The City may terminate this Agreement at its convenience
with thirty (30) days advance written notice to the Contractor. In the event of such a
termination by the City, the City shall be liable for the payment of all Work properly
performed prior to the effective date of termination and for all portions of materials,
supplies, services, and facility orders which cannot be cancelled and were placed prior to
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ITB #21-001 Laboratory Services for City Water & Wastewater Facilities
the effective date of termination and other reasonable costs associated with the
termination.
C. Warranty. The Contractor warrants that the Work including equipment and materials
provided shall conform to professional standards of care and practice in -effect at the time
the Work is performed, be of the highest quality, and be free from all faults, defects or
errors. If the Contractor is notified in writing of a fault, deficiency or error in the Work
provided within one (1) year from completion of the Work, the Contractor shall, at the
City's option, either redo such portions of the Work to correct such fault, defect or error,
at no additional cost to the City or refund to the City the charge paid by the City which is
attributable to such portions of the faulty, defective or erroneous Work, including the
costs for obtaining another Contractor to redo the Work.
ALL MATERIALS PROVIDED BY THE CONTRACTOR, SHALL BE
MERCHANTABLE AND BE FIT FOR THE PURPOSE INTENDED.
THE CONTRACTOR SHALL BE LIABLE FOR SECONDARY,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE
RESULTING FROM ANY WORK PERFORMED UNDER THIS
AGREEMENT.
D. Time of Completion. The parties understand and agree that time is of the essence in the
performance of this Agreement. The Contractor agrees that all Work shall be performed
regularly, diligently, and uninterrupted within the time specified. The Contractor or City,
respectively, shall not be liable for any loss or damage, resulting from any delay or
failure to perform its contractual obligations within the time specified, due to acts of God,
actions or regulations by any governmental entity or representative, strikes or other labor
trouble, fire, embargoes, or other transportation delays, damage to or destruction in whole
or in part, of equipment or manufacturing plant, lack of or ability to obtain raw materials,
labor, fuel or supplies for any reason including default of suppliers, or any other causes,
contingencies or circumstances not subject to the Contractor's or City's control,
respectively, whether of a similar or dissimilar nature, which prevent or hinder the
performance of the Contractor's or City's contractual obligations, respectively. Any such
causes of delay shall extend the time of the Contractor's or City's performance
respectively, by the length of the delays occasioned thereby, including delays reasonably
incident to the resumption of normal Work schedules. However, under such
circumstances as described herein, the City may at its discretion, cancel this Agreement
for the convenience of the City.
E. Indemnification. To the fullest extent provided by law, Contractor shall indemnify,
defend and hold harmless the City and all of its officers, agents and employees from all
claims, loss, damage, cost, charges or expense including, but not limited to reasonable
attorneys' fees, to the extent caused by the negligence, recklessness or intentional
wrongful misconduct of Contractor, its agents, employees, or subcontractors during the
performance of the Agreement. The City shall use its best efforts to promptly notify the
Contractor in writing of any Claims and shall provide the Contractor with information
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ISB #21-001 Laboratory Services for City Water & Wastewater Facilities
regarding the Claims as the Contractor may reasonably request, but the failure to give
such notice or provide such information shall not diminish the obligations of the
Contractor under this Section. No Claims whatsoever shall be made or asserted against
the City by the Contractor for or on account of anything done or as a result of anything
done or omitted to be done in connection with this Agreement.
F. Correction of Work. The Contractor shall promptly correct all Work rejected by the City
as faulty, defective, or failing to conform to this Agreement whether observed before or
after substantial completion of the Work. The Contractor shall bear all costs of correcting
such rejected Work. In the event that Contractor fails to timely mow or otherwise
maintain a portion of the work, then the City, at its sole discretion and without waiving
any other rights or remedies under this Agreement, may deduct from any amounts due
under this Agreement, the actual cost paid by the City to a third party to perform the
work. If the City performs such work with its own personnel then the City may deduct
from any amounts due under this Agreement such amount equal to what the Contractor
would have charged for doing the work, plus 15% of such amount.
G. Right to Audit Records. The City shall be entitled to audit the books and records of the
Contractor or any sub -contractor to the extent that such books and records relate to the
performance of this Agreement or any sub -contract to this Agreement. Such books and
records shall be maintained by the Contractor for a period of three (3) years from. the date
of final payment under this Agreement and by the sub -contractor for a period of three (3)
years from the date of final payment under the sub -contract unless a shorter period is
otherwise authorized in writing.
H. Information. All information, data, designs, plans, drawings, and specifications furnished
to or developed for the City by the Contractor or its employees, pursuant to this
Agreement, shall be the sole property of the City and all rights therein are reserved by the
City, except that the Contractor may disclose any such information to its corporate
affiliates and their agents.
I. Safety Measures, The Contractor shall take all necessary precautions for the safety of the
City's and Contractor's employees and the general public and shall erect and properly
maintain at all times all necessary vehicular and facility safeguards for the protection of
the workers and public. If necessary, the Contractor shall post signs warning against
hazards in and around the work site.
J. Extra Work. The City, without invalidating this Agreement, may order changes in the
Work within the general scope of this Agreement consisting of additions, deletions, or
other revisions, the Agreement price and time being adjusted accordingly. All such
changes in the Work shall be authorized by a written Addendum to this Agreement, and
shall be executed under the applicable conditions of the Agreement.
K. Price Adjustments. Pricing is firm for the initial three (3) year term of this agreement.
For the renewal terms of this Agreement, if the Contractor proposes to make a price
adjustment, the Contractor shall first give the City written notice thereof, with
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ITB ##21-001 Laboratory Services for City Water & Wastewater Facilities
explanations stated for the price adjustment, and such notice shall be given at least one
hundred -twenty (120) calendar days prior to the one (1) year renewal term for which the
price adjustment is sought. Nothing contained herein shall affect the City's right to
terminate this Agreement for Convenience as provided herein.
L. Familiarity with The Work. The Contractor by executing this Agreement, acknowledges
full understanding of the extent and character of the Work required and the conditions
surrounding the performance thereof. The City will not be responsible for any alleged
misunderstanding of the Work to be furnished or completed, or any misunderstanding of
conditions surrounding the performance thereof. It is understood that the execution of
this Agreement by the Contractor serves as the Contractor's stated commitment to fulfill
all the conditions referred to in this Agreement.
Section 6. Miscellaneous Provisions.
6.1 No assignment by a party hereto of any rights under, or interests in, the Contract
Documents will be binding on another party hereto without the written consent of the
party sought to be bound; and specifically, but without limitation, moneys that may
become due, and moneys that are due, may not be assigned without such consent
(except to the extent that the effect of this restriction may be limited by law), and
unless specifically stated to the contrary in any written consent to an assignment, no
assignment will release or discharge the assignor from any duty or responsibility under
the Contract Documents. Notwithstanding the foregoing, the Owner may assign this
contract to the State of Florida or any political subdivision, municipality, special district
or authority thereof without Contractor's consent and without recourse.
6.2 Owner and Contractor each binds himself, his partners, successors, assigns and legal
representatives to the other party hereto, his partners, successors, assigns, and legal
representatives in respect to all covenants, agreements, and obligations contained in
the Contract Documents.
6.3 Chapter 558, Florida Statutes: The parties agree that the provisions of Chapter 558,
Florida Statutes are not applicable to this Agreement.
6.4 Waiver of Jury Trial; Legal Costs. It is mutually agreed by and between the Contractor
and Owner that each of the parties do hereby waive trial by jury in any action,
proceeding or claim which may be brought by either of the parties'hereto against the
other on any matters concerning or arising out of this Agreement. The parties further
agree that the sole and exclusive venue for any action to enforce this agreement shall
be in The Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida.
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ITB #21-001 Laboratory Services for City Water & Wastewater Facilities
6.5 Any provision or part of the Contract Documents held to be void or unenforceable under
any Law or Regulation shall be deemed stricken, and all remaining provisions shall
continue to be valid and binding upon Owner and Contractor, who agree that the
Contract Documents shall be reformed to replace such stricken provision or part thereof
with a valid and enforceable provision that comes as close as possible to expressing the
intention of the stricken provision.
6.6 SCRUTINIZED COMPANIES: The Respondent certifies that the company is not
participating in a boycott of Israel. The Respondent certifies that the Respondent is not
on the Scrutinized Companies that Boycott Israel List, not on the Scrutinized Companies
with Activities in Sudan List, not on the Scrutinized Companies with activities In the Iran
Petroleum Energy Sector List, or has been engaged in business operations in Cuba or
Syria, as those terms are used and defined in sections 287.135 and 215.473 of the
Florida Statutes. In the event that the Respondent is unable to provide such certification
but still seeks to be considered for award of this solicitation, the Respondent shall, on a
separate piece of paper, clearly state that it is on one or both of the Scrutinized
Companies lists and shall furnish together with its proposal a duly executed written
explanation of the facts supporting any exception to the requirement for certification
that it claims under Section 287.135 of the Florida Statutes. The Respondent agrees to
cooperate fully with the City in any Investigation undertaken by the City to determine
whether the claimed exception would be applicable. The City shall have the right to
terminate any contract resulting from this solicitation for default if the Respondent Is
found to have submitted a false certification, or to have been placed on the Scrutinized
Companies that Boycott Israel List, or to have been placed on the Scrutinized Companies
for Activities in Sudan List, or the Scrutinized Companies with Activities in the Iran
Petroleum Energy Sector List, or has been engaged in business operations in Cuba or
Syria.
6.7 To the degree records are not exempt or confidential under Florida's Public Records law,
Contractor agrees to comply with Chapter 119, Florida Statutes, and particularly Section
119.0701, Florida Statutes, relating to a contractor's obligation with regard to public
records.
6.8 PUBLIC RECORDS COMPLIANCE
The City of Ocoee (City) is a public agency subject to Chapter 119, Florida Statutes. The
Contractor agrees to comply with Florida's Public Records Law. Specifically, the Contractor
shall:
1. Keep and maintain public records required by the City to perform the service.
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ITB #21-001 Laboratory Services for City Water & Wastewater Facilities
2. Upon request from the City's custodian of public records, provide the City with a copy of the
requested records or allow the records to be inspected or copied within a reasonable time at a
cost that does not exceed the cost provided in chapter 119, Florida Statutes, or as otherwise
provided by law.
3. Ensure that public records that are exempt or confidential and exempt from the public
records disclosure requirements are not disclosed except as authorized by law for the duration
of the contract term and following completion of the contract if the Contractor does not
transfer the records to the City.
4, Upon completion of the contract, Contractor agrees to transfer at no cost to the City all
public records in possession of the Contractor or keep and maintain public records required by
the City to perform the service. If the Contractor transfers all public record to the City upon
completion of the contract, the Contractor shall destroy any duplicate public records that are
exempt or confidential and exempt from public records disclosure requirements. If the
Contractor keeps and maintains public records upon completion of the contract, the Contractor
shall meet all applicable requirements for retaining public records. All records stored
electronically must be provided to the City, upon request from the City's custodian of public
records, in a format that is compatible with the information technology systems of the City.
5. A Contractor who falls to provide the public records to City within a reasonable time may be
subject to penalties under section 119.10, Florida Statutes.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF
PUBLIC RECORDS AT 407-905-3100, EXTENSION 1022, CCDL@ci.ocoee.fl.us,
WITH AN OFFICE LOCATED AT 150 NORTH LAKESHORE DRIVE, OCOEE, FLORIDA
34761.
(Signature Page Follows)
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ITB #21-001 Laboratory Services for City Water & Wastewater Facilities
IN WITNESS WHEREOF, Contractor and the City have caused this Agreement for Laboratory
Services for City Water & Wastewater Facilities to be executed by their duly authorized officers
as of the day and year first above written.
CONTRnO MI AL LABORATORIES INC.
BY:
PRINT NAME;
TITLE:
WITNESSES:
NAME, Same. Coo eln'CC--.
TITLE:
OWNER: CITY OF OCOEE, FLORIDA
TITLE: ec e p�
ATTEST: APPROVED:
�fA BY:
BY:
Melanie Si bitt, City Clerk Rusty Johr��on Mayor
(SEAL)
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA
APPROVED AS TO FORM AND LEGALITY
this��day of(','�y , 2020
SHUFFIELD, LOWMAN & LSON, P.A.
BY: ��...
Scott A. CpoTc`sbn id Attorney
APPROVED BY CITY OF OCOEE
COMMISSION AT A MEETING HELD
on December 1, 2020, under Agenda Item F_8.
OF SECTION
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ITB #21-001 Laboratory Services for City Water & Wastewater Facilities