HomeMy WebLinkAboutContracts & Agreements_217-2020AGREEMENT TO PERFORM NON-PROFESSIONAL SERVICES
FOR EQUIPMENT AND SUPPLIES
This agreement for the provision of automated refuse bin containers and associated
services (` Agreement") is made and entered in this 6th day of October, 2020 ("Effective Date"),
by and between the City of Redlands, a municipal corporation ("City") and Otto Environmental
Systems North America, Inc. ("Contractor '). City and Contractor are sometimes individually
referred to herein as a `Party' and, together, as the `Parties. In consideration of the mutual
promises contained herein, City and Contractor agree as follows:
ARTICLE 1 — ENGAGEMENT OF CONTRACTOR
1 1 City hereby engages Contractor to supply and deliver automated refuse bin containers
and associated services for City (the `Services").
1.2 The Services shall be performed by Contractor in a professional manner, and Contractor
represents that it has the skill and the professional expertise necessary to provide the
Services to City at a level of competency presently maintained by other practicing
professional Contractors in the industry providing like and similar types of Services.
ARTICLE 2 — SERVICES OF CONTRACTOR
2.1 The Services that Contractor shall perform are more particularly described in Exhibit
A, titled `Scope of Services, which is attached hereto and incorporated herein by
reference.
2.2 Contractor shall comply with applicable federal, state and local laws and regulations in
the performance of this agreement including, but not limited to, any applicable State
prevailing wage laws.
ARTICLE 3 — RESPONSIBILITIES OF CITY
3 1 City shall make available to Contractor information in its possession that may assist
Contractor in performing the Services.
3.2 City designates Christopher Boatman, Facilities and Community Services Director, as
City's representative with respect to performance of the Services, and such person shall
have the authority to transmit instructions, receive information, interpret and define
City's policies and decisions with respect to performance of the Services.
ARTICLE 4 — PERFORMANCE OF SERVICES
4 1 The term of this Agreement shall be for a period of one (1) year from the Effective Date
of this Agreement (the `Initial Term"). The City shall have the option to extend the Initial
Term of this Agreement by two (2) additional one-year terms (each, an `Extended
Term"), on the same terms and conditions, by providing written notice to Contractor at
least thirty (30) days prior to the expiration of the Initial Term or any Extended Term.
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The Initial Term and the Extended Terms are collectively referred to herein as the
`Term' of this Agreement.
4.2 Contractor's failure to provide Services within the time allowed will result in damages
being sustained by City Such damages are, and will continue to be, impracticable and
extremely difficult to determine. Accordingly Contractor shall pay to City or have
withheld from monies due to Contractor, the sum of fifty cents ($0.50) per undelivered
container each day excluding Saturdays, Sundays and Federal Holidays. The Parties'
execution of this Agreement shall constitute the express agreement by City and
Contractor that fitly cents ($0.50) per undelivered container each day is the estimated
damage to City caused by the failure of the Contractor to complete the work within the
allowed time. Such sum is established as liquidated damages, and shall not be construed
as a penalty and may be deducted from payments due Contractor if such delay occurs.
ARTICLE 5 — PAYMENTS TO CONTRACTOR
5.1 The compensation for Contractor s performance of the Services shall not exceed the
amount of three hundred sixteen thousand eight dollars ($316,008) for the Services
provided during the Initial Tenn. Should this Agreement be extended, the compensation
for Contractor's performance for the Services shall not exceed the amount of three
hundred sixteen thousand eight dollars ($316,008) for the first Extended Term and three
hundred sixteen thousand eight dollars ($316,008) for the second Extended Term,
bringing the total possible amount of compensation to a not -to -exceed amount of nine
hundred forty eight thousand twenty four dollars ($948,024). For the Initial Term and
each Extended Term, City shall pay Contractor on a time and materials basis up to the not
to not -to -exceed amount in accordance with the rates specified in Exhibit A, titled
`Scope of Services, which is attached hereto and incorporated herein by reference.
5.2 Contractor shall submit monthly invoices to City describing the Services performed
during the preceding month. Contractor's invoices shall include a brief description of the
Services performed, the dates the Services were performed, the number of hours spent
and by whom, and a description of reimbursable expenses related to the Services. City
shall pay Contractor no later than thirty (30) days after receipt and approval by City of
Contractor's invoice.
5.3 Any notice or other communication required, or which may be given, pursuant to this
Agreement, shall be in writing. Any such notice shall be deemed delivered (i) on the date
of delivery in person; (ii) five (5) days after deposit in first class registered mail, with
return receipt requested; (iii) on the actual delivery date if deposited with an overnight
courier, or (iv) on the date sent by facsimile, if confirmed with a copy sent
contemporaneously by first class, certified, registered or express mail, in each case
properly posted and fully prepaid to the appropriate address set forth below or such other
address as a Party may provide notice in accordance with this section:
City: Contractor.
City Clerk Michael Costello, President and CEO
City of Redlands Otto Environmental Systems North America, Inc.
35 Cajon Street 12700 General Drive
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P 0 Box 3005 (mailing)
Redlands, CA 92373
jdonadlson@cityofredlands.org
(909) 798-7531
Charlotte, NC 28273
Michael.Costello@otto-usa.com
Phone Number (480) 227-6335
Fax (704) 588-5250
ARTICLE 6 — INSURANCE AND INDEMNIFICATION
6.1 The following insurance coverage required by this Agreement shall be maintained by
Contractor for the duration of its performance of the Services. Contractor shall not
perform any Services unless and until the required insurance listed below is obtained by
Contractor. Contractor shall provide City with certificates of insurance and endorsements
evidencing such insurance prior to commencement of the Services. Insurance policies
shall include a provision prohibiting cancellation or modification of the policy except
upon thirty (30) days prior written notice to City
A. Workers' Compensation and Employer's Liability insurance in the amount that meets
statutory requirements with an insurance carrier acceptable to City or certification to
City that Contractor is self-insured or exempt from the workers' compensation laws
of the State of California. Contractor shall execute and provide City with Exhibit B,
titled `Workers' Compensation Insurance Certification, which is attached hereto and
incorporated herein by this reference, prior to performance of the Services.
B. Comprehensive General Liability insurance with carriers acceptable to City in the
minimum amount of One Million Dollars ($1,000,000) per occurrence and Two
Million Dollars ($2,000,000) aggregate, for public liability property damage and
personal injury is required. City shall be named as an additional insured and such
insurance shall be primary and non-contributing to any insurance or self-insurance
maintained by City
C. Business Auto Liability coverage, with minimum limits of One Million Dollars
($1,000,000) per occurrence, combined single limit bodily injury liability and
property damage liability This coverage shall include all Contractor owned vehicles
used in connection with Contractor's provision of the Services, hired and non -owned
vehicles, and employee non -ownership vehicles. City shall be named as an additional
insured and such insurance shall be primary and non-contributing to any insurance or
self-insurance maintained by City
6.2 Contractor shall defend, indemnify and hold harmless City and its elected officials,
employees and agents from and against any and all claims, losses or liability including
attorneys' fees, arising from injury or death to persons or damage to property occasioned
by any negligent act or omission by or the willful misconduct of, Contractor, or its
officers, employees and agents in performing the Services.
ARTICLE 7 — CONFLICTS OF INTEREST
7 1 Contractor covenants and represents that it does not have any investment or interest in
any real property that may be the subject of this Agreement or any other source of
income, interest in real property or investment that would be affected in any manner or
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degree by the performance of Contractor's Services. Contractor further covenants and
represents that in the performance of its duties hereunder, no person having any such
interest shall perform any Services under this Agreement.
7.2 Contractor agrees it is not a designated employee within the meaning of the Political
Reform Act because Contractor
A. Does not make a governmental decision whether to:
(i) approve a rate, rule or regulation, or adopt or enforce a City law.
(ii) issue, deny suspend or revoke any City permit, license, application,
certification, approval, order or similar authorization or entitlement;
(iii) authorize City to enter into, modify or renew a contract;
(iv) grant City approval to a contract that requires City approval and to which
City is a party or to the specifications for such a contract;
(v) grant City approval to a plan, design, report, study or similar item;
(vi) adopt, or grant City approval of, policies, standards or guidelines for City
or for any subdivision thereof.
B. Does not serve in a staff capacity with City and, in that capacity participate in
making a governmental decision or otherwise perform the same or substantially the
same duties for City that would otherwise be performed by an individual holding a
position specified in City's Conflict of Interest Code under Government Code section
87302.
7.3 In the event City determines that Contractor must disclose its financial interests,
Contractor shall complete and file a Fair Political Practices Commission Form 700,
Statement of Economic Interests, with the City Clerk's office pursuant to the written
instructions provided by the City Clerk.
ARTICLE 8 — GENERAL CONSIDERATIONS
8.1 in the event any action is commenced to enforce or interpret any of the terms or
conditions of this Agreement the prevailing Party shall, in addition to any costs and other
relief, be entitled to the recovery of its reasonable attorneys' fees, including fees for the
use of in-house counsel by a Party
8.2 Contractor shall not assign any of the Services, except with the prior written approval of
City and in strict compliance with the terms and conditions of this Agreement. Any
assignment or attempted assignment without such prior written consent may in the sole
discretion of City results in City's immediate termination of this Agreement.
8.3 Contractor is for all purposes under this Agreement an independent contractor and shall
perform the Services as an independent contractor Neither City nor any of its agents
shall have control over the conduct of Contractor or Contractor s employees, except as
herein set forth. Contractor shall supply all necessary tools and instrumentalities required
to perform the Services. Assigned personnel employed by Contractor are for its account
only and in no event shall Contractor or personnel retained by it be deemed to have been
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employed by City or engaged by City for the account of, or on behalf of City Contractor
shall have no authority express or implied, to act on behalf of City in any capacity
whatsoever as an agent, nor shall Contractor have any authority express or implied, to
bind City to any obligation.
8.4 This Agreement may be terminated by City in its sole discretion, by providing not less
than ten (10) days prior written notice to Contractor of City's intent to terminate. If this
Agreement is terminated by City an adjustment to Contractor's compensation shall be
made, but (1) no amount shall be allowed for anticipated profit or unperformed Services,
and (2) any payment due Contractor at the time of termination may be adjusted to the
extent of any additional costs to City occasioned by any default by Contractor. Upon
receipt of a termination notice, Contractor shall immediately discontinue its provision of
the Services and, within five (5) days of the date of the termination notice, deliver or
otherwise make available to City copies (in both hard copy and electronic form, where
applicable) of project related data, drawings, specifications, reports, summaries and such
other information and materials as may have been accumulated by Contractor in
performing the Services. Contractor shall be compensated on a pro -rata basis for Services
completed up to the date of termination.
8.5 Contractor shall maintain books, ledgers, invoices, accounts and other records and
documents evidencing costs and expenses related to the Services for a period of three (3)
years, or for any longer period required by law from the date of final payment to
Contractor pursuant to this Agreement. Such books shall be available at reasonable times
for examination by City at the office of Contractor.
8.6 This Agreement, including the Exhibits incorporated herein by reference, represents the
entire agreement and understanding between the Parties as to the matters contained
herein, and any prior negotiations, written proposals or verbal agreements relating to such
matters are superseded by this Agreement. Except as otherwise provided for herein, any
amendment to this Agreement shall be in writing, approved by City and signed by City
and Contractor
8.7 This Agreement shall be governed by and construed in accordance with the laws of the
State of California.
8.8 If one or more of the sentences, clauses, paragraphs or sections contained in this
Agreement is declared invalid, void or unenforceable by a court of competent
jurisdiction, the same shall be deemed severable from the remainder of this Agreement
and shall not affect, impair or invalidate the remaining sentences, clauses, paragraphs or
sections contained herein, unless to do so would deprive a Party of a material benefit of
its bargain under this Agreement.
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IN WITNESS WHEREOF, duly authorized representatives of City and Contractor have
signed in confirmation of this Agreement
CITY OF REDLANDS
By
Paul W Foster, Mayor
ATTEST
J�ixlie Donaldson, City Clerk
OTTO ENVIRONMENTAL SYSTEMS
NORT
Airii
By
Mi ael Co tello, President and CEO
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EXHIBIT "A"
SCOPE OF SERVICES
Scope of Services is to provide automated refuse containers on a per unit need -by -need basis.
Delivery
All refuse, yard waste and recyclables containers shall be delivered complete and ready to
assemble, and shall be shipped and delivered in a new unused state. Containers shall be molded
from a fully recyclable material supplied from a national petrochemical manufacturer
certifications by manufacturer and prior approval of said material by the City is required.
Assemblies, sub -assemblies, and component parts shall be standard and interchangeable
throughout the entire quantity of containers delineated in the bid.
Containers shall be delivered to the City of Redlands within 30 days after issuance of order. Each
order will be in increments of 504 units.
Repurchase Plan:
Contractor will pay a buyback rate based off CDI. CDI publishes a monthly report. Payment will
be based off of the previous months CDI price. The date will be from the date the container load
was picked up. The price is based off the CDI for INJ MLDG HDPE pricing. Contractor s offer
will be paid as a credit to City Once the net weight is confirmed, Contractor will pay 22.5% of
CDI from the previous months pricing.
Payment is based solely off the net weight of the plastic which is reported back to Contractor
from its processor. Contractor does not pay for any weight that results from water, metal, trash,
etc. The payment is based on plastic HDPE weight.
Contractor will also offer this same rate for other scrap carts. Contractor will not pay for any
crosslink carts.
Residential Container Purchase Price:
Per Unit Purchase Price
Product Description
Unit price
90-95 gal. Automated containers
(grey -refuse)
42.50
90-95 gal. Automated containers
(green- green waste)
42.50
90-95 gal. Automated containers
(blue- recyclable)
42.50
65 gal. Automated containers
(grey green, blue, tan)
39.00
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EXHIBIT "B"
WORKERS' COMPENSATION INSURANCE CERTIFICATION
Every employer, except the State, shall secure the payment of compensation In one or more of
the following ways
(a) By being insured against liability to pay compensation by one or more insurers
duly authorized to write compensation insurance in this State
(b) By securing from the Director of Industrial Relations, a certificate of consent to
self -insure, either as an individual employer, or as one employer in a group of
employers, which may be given upon furnishing proof satisfactory to the Director
of Industrial Relations of ability to self -insure and to pay any compensation that
may become due to his or her employees
CHECK ONE
✓ I am aware of the provisions of Section 3700 of the Labor Code which requires every
employer to be insured against liability for Workers' Compensation or to undertake self-
insurance in accordance with the provisions of that Code, and I will comply with such provisions
before commencing the performance of the work and activities required or permitted under this
Agreement (Labor Code §1861)
I affirm that at all times, in performing the work and activities required or permitted under
this Agreement, I shall not employ any person in any manner such that I become subject to the
workers' compensation laws of California However, at any time, if I employ any person such
that I become subject to the workers' compensation laws of California, immediately I shall
provide the City with a certificate of consent to self -insure, or a certification of workers'
compensation insurance.
I certify under penalty of perjury under the laws of the State of California that the information
and representations made in this certificate are true and correct
OTTO ENVIRONMENTAL SYSTEMS
NORTH AMERI
By
Michael ostello, President and CEO
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