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HomeMy WebLinkAboutContracts & Agreements_164-2021AGREEMENT 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 7th day of September, 2021 ("Effective Date"), by and between the City of Redlands, a municipal corporation ("City") and Otto Environmental Systems North America, Inc , a Delaware corporation ("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 perform the supply and delivery of 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 Chris 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 Contractor shall perform and complete the Services in a prompt and diligent manner 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. The Initial Term 1 L.\ca\cljm\Agreenients\Otto Environmental Systems Agreement.FY21-0012.clocx.jn 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 undehvered 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 fifty 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 4 3 If Contractor's Services include deliverable electronic visual presentation materials, such materials shall be delivered in a form, and made available to the City, consistent with City Council adopted policy for the same It shall be the obligation of Contractor to obtain a copy of such policy from City staff. ARTICLE 5 — PAYMENTS TO CONTRACTOR 5 1 The compensation for Contractor's performance of the Services shall not exceed the amount of three hundred ninety nine thousand six hundred ninety seven dollars and twenty cents ($399,697.20) for the Services provided during the Initial Term. Should this Agreement be extended, the compensation for Contractor's performance for the Services shall not exceed the amount of three hundred ninety nine thousand six hundred ninety seven dollars and twenty cents ($399,697.20) for the second Extended Term, and three hundred ninety nine thousand six hundred ninety seven dollars and twenty cents ($399,697 20) for the third Extended Term, bringing the total possible amount of compensation to a not -to - exceed amount of one million one hundred ninety nine thousand ninety one dollars and sixty cents ($1,199,091 60) 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 "B," titled "Price and Fee Bid," 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 or electronic mail transmission (including PDF), if confirmed with a copy sent contemporaneously by first class, certified, registered or 2 L:\ca\djm\Agreements\Otto Environmental Systems Agreement.FY2 1 -0012.docx.jn 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 City Clerk City of Redlands 35 Cajon Street P 0 Box 3005 (mailing) Redlands, CA 92373 jdonaldson@cityofredlands org Phone (909) 798-7531 Fax (909) 798-7535 CONTRACTOR Michael Costello, President and CEO Otto Environmental Systems N America, Inc 12700 General Drive Charlotte, NC 28273 Michael.Costello@otto-usa.com Phone (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 "C," 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 3 L:\ca\djm\Agreements\Otto Environmental Systems Agreement.FY21-0012.docx.jn 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 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 4 L.\ca\djm\Agreements\Otto Environmental Systems Agreement.FY21-0012.docx.jn 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 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, without regard to its conflicts of laws provisions The Parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated only in the state courts located in San Bernardino County, California, and the federal courts located in Riverside County, California. 5 L.\ca\djm\Agreements\Otto Environmental Systems Agreement.FY21-0012.docx.jn 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 depnve a Party of a material benefit of its bargain under this Agreement IN WITNESS WHEREOF, duly authorized representatives of City and Contractor have signed in confirmation of this Agreement CITY OF REDLANDS Paul T Banch, Mayor ATTEST ne Donaldson, City Clerk OTTO ENVIRONMENTAL SYSTEMS NORTH! ERI By M'chael C stello, Presi ent aEO 6 L \ca\dim\Agreements\Otto Environmental Systems Agreement.FY21 0012.docx in EXHIBIT "A" SCOPE OF SERVICES Provide automated refuse containers on a per unit need -by -need bases 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, subassemblies, and component parts shall be standard and interchangeable throughout the entire quantity of containers Manufacturer shall to furnish a complete itemized parts list and assembly manual for containers, Manufacturer shall supply the names of all sublet vendors from which they procure finished parts or materials used in the assembly of containers, including, but not limited to, appurtenant hardware 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 WARRANTY "Container" is defined as a complete unit including all lids and appurtenant hardware All containers furnished shall be unconditionally (100%) warrantied for a minimum of ten (10) years after physical delivery and acceptance by the City The unconditional warranty shall include, but not be limited to, such items as cracking, chipping, peeling, and other types of distortion, failures at attachment points for lids, hinges or other points of attachment; weathering, degrading, defective or insufficient materials, poor workmanship on the part of manufacturer; lowered ultraviolet resistance during normal usage as the container ages, and placement of all warnings and directions for use upon the lid/container as specified. Defective containers, which are replaced under warranty provisions, shall be replaced as complete containers (including lids and hardware) within thirty (30) working days from notification of defect by the City Contractor agrees to reimburse the City for any loss which may be incurred by the City incidental to the loading, shipping and disposal of defective containers All costs, including shipping costs for delivery to Redlands, incurred in the replacement of said defective units or parts shall be fully borne by the Contractor In addition to the warranty implied by fact or law, Contractor expressly warrants all items to be new, free from defect in design, materials, construction and workmanship, and to be fit and sufficient for their intended purpose Contractor shall not be responsible for damage or destruction caused by fire, vandalism, abuse, neglect, or acts of God after containers have been delivered and accepted. DESIGN SPECIFICATIONS Universal Type Automated Refuse Containers 7 L.\ca\djm\Agreements\Otto Environmental Systems Agreement.FY21-0012.doex.jn • Container capacity (large refuse, green waste, and recyclables) 95-gallon (U S liquid gallons in container base) • Container capacity (small refuse, green waste, organic, and recyclables) 65-gallon (U S liquid gallons in container base) • Container configuration and color Refuse, round/Grey; Green Waste, round/green, Recyclables, round/blue, and Organics, round/Tan. • Dimensions 27 5" maximum width at widest point including lid, hip or gripping surface diameter must be compatible with City of Redlands automated side -loading vehicles • Lid. Each container shall be furnished with a water -tight lid molded from the same material as the container; lid shape shall feature overlapping "flared" sides in order not to bind against the sides when container is distorted by gripping devices Primary lid attachment to container shall NOT feature metal hinges, tubes, P V C plastic, or glued connections. The primary lid shall open to a minimum 270 degrees measuring from the closed position to the full open position. The minimum material thickness shall not be more than 0 12" • Weight: No more than 4lbs • Handle Each container shall feature a cart handle which is an integral part of the body of the cart, and not the lid. Diameter• shall be 1.2" and provide 1 87" clearance for hands. • Identification. A numbering system shall be utilized that can identify containers by year and month of manufacture, a Serial number tracking system in 1 - 1 ''A inch size numbers shall be hot stamped into the front body wall All containers shall be identified with the wording "City of Redlands" inscribed and molded into the lid. additional standard safety information provided by manufacturer shall be included if deemed standard. • Finish Interior surfaces shall be molded with a smooth finish, with exterior surfaces featuring a non -slip texture finish. • Hardware All metal hardware shall be zinc plated or stainless steel to prevent corrosion, hardware packaging shall be approved by the buyer in an acceptable form to facilitate unloading and handling in a safe manner • Stability. Containers shall be stable and self -balancing when in the upright position, whether loaded or empty • Containers shall be designed and rated to handle a 230-pound load (65-gallon), and 335- pound load (95-gallon) • Carts will be injection molded only (NO rotationally molded carts) • Carts must have a contoured shape and rounded edges to create fewer stress points • Compressive force Each container shall be capable of withstanding a compressive force of 200 pounds anticipated in the process of lifting and dumping without sustaining damage, deformation, or structural failure, side wall thickness NO GREATER THAN 0 15 INCH AND 0 15 ON THE BOTTOM SECTION • Containers shall be designed to be picked up and dumped by a clasping arm mechanism that applies force at a point approximately 1/3 of the height below the top edge Containers shall be adequately designed to prevent sliding through lifting arm when lifted and turned 8 L:\ca\djm\Agreements\Otto Environmental Systems Agreement.FY21-0012.doex.jn upside down to be emptied. City testing has revealed that full length rectangular shaped carts (European style) are incompatible with City automated equipment and therefore unacceptable Container body shall be designed without cavities or partitions, which could retain refuse after dumping. Loading Height: 41 75", Overall Depth. 33.25", Overall Height: 45.375" • Wording• the existing wording and graphics shall be in both English and Spanish and shall be molded into the lids of each container • Markings Refuse carts shall be hot stamped on both sides with the City of Redlands logo Green Waste carts shall be hot stamped with the City of Redlands "Recycling" logo ENVIRONMENTAL AND SAFETY AND HEALTH STANDARDS COMPLIANCE Contractor shall comply with applicable environmental statutes, regulations & guidelines in performing the work required under this agreement. Contractor shall also comply with applicable Occupational Safety and health standards, regulations and guidelines in performing the work required under this agreement. 9 L.\ca\djm\Agreements\Otto Environmental Systems Agreement.FY21-0012.docx.jn EXHIBIT "B" PRICE AND FEE BID RESIDENTIAL CONTAINER PURCHASE PRICE Per Unit Purchase Price Product Description Unit Price 95 gal. Automated containers (grey — refuse) $54.27 95 gal. Automated containers (green — green waste) $54.27 95 gal. Automated containers (blue — recyclable) $54 27 65 gal. Automated containers (grey, green, blue tan) $47.27 ESCALATION AND DE-ESCALATION OF BID PRICE During the Term of this Agreement, there may be a general published manufacturer's price change OR a general market change, as evidenced by prices paid by other governmental entities or private organizations, in either the cost of materials or labor of the product or service specified herein. Within thirty (30) calendar days of a DECREASE in price, Contractor shall have an AFFIRMATIVE DUTY to (1) notify the City of market, manufacturer or laborer decreases in prices, and (2) to extend the full decrease to the City Failure of Contractor to notify the City and/or extend such decrease(s) may be considered a breach of contract. Contractor is allowed to increase price once a year, upon contract term renewal ONLY In event of an INCREASE in price, the City may allow, upon presentation of suitable proof and thirty (30) calendar days' advanced written notice, an increase over bid price Increases will apply only to products or services affected by an increase in raw material, labor, or other like cost factors No increase will be allowed earlier than (365) calendar days from date of contract award, including thirty (30) calendar days' advanced written notice and written approval by authorized City staff. If the Contractor proposes a price increase, the Contractor shall be required to submit any price increases to authorized city staff. Said notice shall show item number, current price, suggested price increase, and purchase order number The City reserves the right to accept or reject any price increase, and to cancel the contract if price increases are not acceptable Documentation may be required to provide justification for any increases based on the US Bureau of Labor Statistics, Consumer Price Index increases or manufacturer increases that are out of the control of the Contractor 10 L.\ca\djm\Agreements\Otto Environmental Systems Agreement.FY21-0012.docx.jn EXHIBIT "C" 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 m 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 V 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 ENVIRONLENT* L SY -TEM NORTH AMERfCAQ INC. Date O/ Y4/ o, President an 11 L•\ca\dim\Agreements\Otto Environmental Systems Agreement.FY21 0012.docx.jn