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HomeMy WebLinkAboutContract 33212 CITY SECRETARY��/ _� � CONTRACT NO. STATE OF TEXAS § § KNOW ALL PERSONS BY THESE PRESENTS: COUNTIES OF TARRANT,DENTON § AND WISE § THIRD AMENDMENT TO THE CONTRACT TO SELL,DELIVER AND MAINTAIN RECYCLING AND GARBAGE CARTS This "THIRD AMENDMENT TO THE CONTRACT TO SELL, DELIVER AND MAINTAIN RECYCLING AND GARBAGE CARTS" (this "Third Amendment") is entered into as of the / day of Fe-6. , 2006, by and between THE CITY OF FORT WORTH, TEXAS, a home rule municipal corporation in Tarrant County, Texas, acting herein by and through its Assistant City Manager, Libby Watson ("City") and Toter, Incorporated, a North Carolina corporation registered in the State of Texas, acting by and through its duly authorized President/Vice President $ e 4At C* Ste(e-fo trr,4("Toter"). Ij WITNESSETH: WHEREAS, the City and Toter have heretofore entered into a certain "CONTRACT TO SELL, DELIVER AND MAINTAIN RECYCLING AND GARBAGE CARTS" (the "Contract"), known as City Secretary Contract No. 28217 and dated November 20, 2002, pursuant to the terms of that certain Request For Proposals DEMO 02-02:CART, issued by the City(the"RFP"); and WHEREAS, the Contract was amended by City Secretary Contract No. 29340 on December 3, 2003 to include the provision of Yardwaste Carts to the City under the terms of the Contract and Amendment; WHEREAS, Toter's raw material costs for the manufacturing of the Recycling Carts, Garbage Carts and Yardwaste Carts (collectively "Carts') have increased since the inception of the Contract; and WHEREAS, the Contract, as originally executed, did not provided for a cost adjustment to the purchase price of said Carts throughout its ten(10)year term; and WHEREAS, pursuant to the terms of the Contract, Toter issued notice to the City of its intention to exercise its right to termination on September 15, 2005 unless a cost adjustment to the Contract price of the Recycling Carts and Garbage Carts could be negotiated and granted by the City; and WHEREAS, the City wishes to preserve a partnership with Toter and maintain a consistency in the services and Carts the City provides to its citizens through the solid waste program; and --- E THIRD AMENDMENT TO CONTRACT CRL 11.22.05 Page 1 WHEREAS, the City and Toter agree to amend the Contract to provide for (i) an immediate one-time increase to the purchase price of each Cart, and (ii) for following the years thereafter and beginning October 1, 2006 to adjust the purchase price of the Carts using the Cost Adjustment Method as more fully described in Attachment A and which shall be fully incorporated into the Contract. NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed,the parties hereto agree as follows: 1. One Time Price Adjustment. The parties agree to make a one time price adjustment to the Contract purchase price of the Garbage Carts, Recycling Carts and Yardwaste Carts of$0.39 per pound of total resin weight per Cart, as shown below: Model Current Price Total Resin Weight Adjusted Price 32 Gallon $24.60 19 pounds $32.01 64 Gallon $29.93 25 pounds $39.68 96 Gallon $34.13 32 pounds $46.61 96 Gallon $37.86 32 pounds $50.34 Yardwaste All Garbage Carts, Recycling Carts and Yardwaste Carts ordered by the City after October 1, 2005 shall be invoiced and paid using the amended purchase price of the Carts as described by this Third Amendment. 2. Cost Adiustment Method. The parties agree that after the one time price increase to the price of the Garbage Carts, Recycling Carts and Yardwaste Carts described in Section 1, there shall be an annual adjustment to the cost of such Carts pursuant to the Cost Adjustment Method described in Attachment A and fully incorporated into the Contract. Toter shall accept such payments as adjusted by the Cost Adjustment Method as full compensation for Carts hereinafter rendered to the City. Toter shall submit documentation justifying the requested adjustment to the City along with its annual request for rate adjustment. 3. Not-to-Exceed Amount. Section 4.f of the Contract, as amended by City Secretary Contract No. 29340, shall be eliminated in its entirety to reflect the adoption of the Cost Adjustment Method and potential for the price of such Carts provided by Toter pursuant to the Contract to be adjusted upward or downward to reflect changes as described in Attachment A. 4. Effective Date. This Third Amendment shall become effective upon full and complete signature by both parties. THIRD AMENDMENT TO CONTRACT CRL 11.22.05 Page 2 5. Miscellaneous.Nothing contained herein shall be deemed to amend or modify the Contract, except as expressly set forth herein. Any defined term used herein, but not defined herein, shall have that meaning set forth in the Contract. IN WITNESS WHEREOF, this Third Amendment has been executed on Ftb , l , 2006. TOTER: TOTER,INC. By: Its: CITY: 713F FORT TH,TEXAS Libby Watson Assistant City Manager Date Signed: ,`1 k, d ATTEST: fv\ ka� Marty Hendri City Secretary APPROVED AS TO FORM AND LEGALITY: (1� r Christa M. Lopez 1-0 Assistant City Attorney Contract ,uthynori.zatioR 7aT� THIRD AMENDMENT TO CONTRACT CRL 11.22.05 Page 3 Cost Adjustment Method The cost for the Sale and Delivery of Garbage and Recycling Carts (hereinafter "Cart Purchase Cost") between the City of Fort Worth and Toter, Inc. will be adjusted for the subsequent Contract Years of the Term of Contract on October 1St of each year following the adoption of the Third Amendment to this Contract. The Cart Purchase Cost will be adjusted upward or downward to reflect changes in the cost of manufacturing by the Cost Adjustment Method using indices and adjustment criteria applicable to the fabrication of Recycling and Garbage Carts as set forth in the methodology below. The first Cost Adjustment date shall be 10/01/2006. Annual Cost Adjustments shall represent changes in indices applied herein for the previous twelve months (calculated by using the difference in the indices for the end of September of the prior year and the end of September in the change year) and the changes in the pricing listed in "Plastics News" under Volume Thermoplastics listed in HDPE, Injection GP, Column II (calculated by using the difference in the high side pricing in the last issue for September in the prior year and the high side pricing in the last issue for September in the current year). The index used represents a component of the Producer Price Index (PPI), and is published by the U.S. Department of Labor, Bureau of Labor Statistics (BLS). Since some BLS data are not finalized for several months, cost adjustments will be applied when data is released and updated if necessary when numbers used are issued as final. If BLS changes the methodology for calculating components of the PPI, which causes historical data used to calculate this cost adjustment to be restated, such changes shall only apply to future adjustments and not to adjustments already implemented. Cost Adjustments shall not exceed five (5) percent per year and fifteen (15) percent in one direction for any four (4) consecutive years. As soon as possible after a Cost Adjustment Date, Contractor shall send to the City a comparative statement setting out the change determined through the Cost Adjustment Method and the increase or decrease in the Cart Purchase Cost. After the receipt and approval by the City of the requested cost adjustment, new Cart Purchase Cost will be applied to all future invoices and adjustments will be applied to invoices based on the date the carts were ordered. If any index or adjustment criteria defined herein is not determined or published or substantially changed as it is constituted on the Contract Date, there shall be substituted for such index or adjustment criteria another which is determined and published on a basis substantially similar to that being replaced and shall be mutually agreed upon by the City and the Contractor. Listed below are the published items and indices and Contractor's percentages that shall constitute the basis for adjustment of the Cart Purchase Cost under this Contract. The percent of change applied to cost adjustment shall be carried out to three (3) decimal places without rounding. Adjustment Criteria and Contractor's Percentage of Each to be Applied in the Cost Adjustment - Cart Purchase Cost - — Thermoplastics resins and plastics materials (20%) Contractor has designated 20% of Cart Purchase Cost to be adjusted by the "Thermoplastics resins and plastics materials" component of the PPI, which is found under the Group 06, Chemicals and Allied Products and the Item 62, Thermoplastics resins and plastics materials (WPU0662)." "Plastics News" -Volume Thermoplastics, HDPE, Injection GP, Column II (80%) Contractor has designated 80% of the Cart Purchase Cost to be adjusted by the "Plastics News" -Volume Thermoplastics, HDPE, Injection GP, Column II Example Following is an example of the application of the adjustment criteria with Contractor's percentages for cost adjustment. In the example below, an annual factor of 4.470% would be applied to Contractor's Cart Purchase Cost to determine the Cart Purchase Cost for the next Contract Year. %Applied to September September # Cost Weight 30,2005 30,2006 Change: Chan e % Adjustment Thermoplastics resins and plastics materials (WPU0662) 20% 193.6 203.2 9.6 4.96% 0.992% "Plastics News"-Volume Thermoplastics, HDPE, Injection GP, Column II (High Side) 80% 92.0 96.0 4.0 4.35% 3.478% Composite Change: 100% 4.470% �s �� , �� Page 1 of 2 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 1/19/2006 DATE: Thursday, January 19, 2006 LOG NAME: 52TOTER3RDAMEND REFERENCE NO.: C-21259 SUBJECT: Authorize Execution of Amendment Number 3 to City Secretary Contract No. 28217 with Toter, Inc. Granting a One Time Cart Price Increase and Establishing a Cost Adjustment Method for Future Years RECOMMENDATION: It is recommended that the City Council authorize Amendment Number 3 to City Secretary Contract No. 28217 with Toter, Inc. granting a one time per cart price increase and establishing a Cost Adjustment Method for all future price increases beginning October 1, 2006. DISCUSSION: Toter, Inc. was awarded City Secretary Contract Number 28217 to provide garbage and recycling carts for solid waste services on November 5, 2002, (M&C C-19336). The contract was subsequently amended on October 28, 2003, (M&C C-19836, CS No. 29340) to include the provision of yard waste carts. The contract was amended on January 20, 2004, (M&C C-19942, CS No. 29555) for the purchase of additional garbage and recycling carts due to increased demand for service. Toter's raw material costs for the manufacturing of the recycling, garbage and yard waste carts have increased since the inception of the contract. The contract, as originally executed, did not provide for a cost adjustment to the purchase price of the carts throughout its 10 year term. On September 15, 2005, Toter, Inc., issued notice to the City of its intention to exercise its right to termination within 30 days unless a cost adjustment to the contract price of the recycling carts and garbage carts could be negotiated and granted by the City. The City wishes to preserve its partnership with Toter and maintain a consistency in the services and carts the City provides to its citizens through the solid waste program. The City and Toter have negotiated a contract amendment to provide for an immediate one-time increase to the purchase price of each cart and beginning October 1, 2006 to adjust the purchase price of each cart size using the Cost Adjustment Method as described in Attachment A. The one time price adjustment will be $0.39 per pound of total resin weight per cart, as shown below: Model Current Price Total Resin Weight Adjusted Price 32 Gallon $24.60 19 pounds $32.01 64 Gallon $29.93 25 pounds $39.68 96 Gallon $34.13 32 pounds $46.61 96 Gallon $37.86 32 pounds $50.34 (Yard waste) All garbage, recycling and yard waste carts ordered by the City after October 1, 2005 shall be invoiced and paid using the amended purchase price above. http://www.cfwnet.org/council_packet/Reports/mc_print.asp 2/14/2006 Page 2 of 2 The cost adjustment method will take effect October 1, 2006. There shall be an annual adjustment to the cost of carts under the terms of this amendment. The increased cost is expected to be $150,000.00 for FY 2005-06 and will be absorbed in the Solid Waste current budget. In future years the cost adjustment method provides for increases/decreases of no more than 5% per year or 15% every four years. Future years' budgets will be prepared to include the estimated increases. Toter shall accept such payments as adjusted by the Cost Adjustment Method as full compensation for carts purchased by the City. Toter will be required to submit documentation to the City justifying requested adjustment along with its annual request for rate adjustment. The Not-to-Exceed Amount (Section 4.0 will be eliminated in its entirety to reflect the adoption of the Cost Adjustment Method as the price of carts provided by Toter and the cost will be adjusted upward or downward as described in Attachment A. This amendment will become effective upon full and complete signatures by both parties. M/WBE - Toter, Inc., is in compliance with the City's M/WBE Ordinance by committing to an additional 5% M/WBE participation on this amendment. The City's goal on this amendment is 5%. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available in the current operating budget, as appropriated of the Solid Waste Fund. TO Fund/AccounVCenters FROM Fund/AccounVCenters PE64 524010 0525002 $150,000.00 Submitted for City Manager's Office b : Libby Watson (6183) Originating Department Head: Brian Boerner(6647) Additional Information Contact: Kim Mote (5153) http://www.cfwnet.org/council_packet/Reports/mc_print.asp 2/14/2006