HomeMy WebLinkAboutContract 46509 CITY SECRRTANIf
CONTRACT NO. O
EXECUTION COPY
Agreement to Sell,Deliver and Maintain
Recycling and Garbage Cans
This Agreement to Sell, Deliver and Maintain Recycling and Garbage Cans,dated as of January.9—L
2015 (the"Agreement'),is entered into by and between the City of Fort Worth, a home-rule municipality
located within Denton,Tarrant and Wise Counties,Texas("City") and Toter,LLC.,a North Carolina limited
liability company("Toter") (the"Parties",and each,a"Party").
WHEREAS,the City of Tucson has entered into Contract No. 120576-01 with Toter on January 31, 2013,
as amended from time to time,in accordance with the terms thereof("Master Agreement")for the
purchase of Toter Refuse and Recycling Container Solutions and Related Products, Equipment and Services
("Product');
WHEREAS,said Master Agreement provides that any and all public agencies, including state and local
governmental entities,that register with the National Intergovernmental Purchasing Agency("National
IPA")or otherwise execute a Master Intergovernmental Cooperative Purchasing Agreement may purchase
Product at prices stated in the Master Agreement;
WHEREAS,the City has executed a Master Intergovernmental Cooperative Purchasing Agreement,and
City desires to purchase Product from Toter under the Master Agreement;
WHEREAS,Toter desires to sell Product to the City under the Master Agreement;and
WHEREAS,the Fort Worth City Council approved the execution of a contract with Toter Inc., in the
amount up to$1,302,250.00 for the first year and to expire on January 30,2018,for the purchase,delivery
and maintenance of garbage, recycling and yard waste carts using the National Intergovernmental
Purchasing Alliance Cooperative Purchasing Agreement No. 120576 by M&C C-27082.
NOW,THEREFORE, in consideration of the payments made hereunder and the mutual covenants
contained in this Agreement,the Parties hereby agree as follows:
1. Definitions.Capitalized terms used in this Agreement and not otherwise defined herein shall have the
meanings given to them in the Master Agreement.
2. Terms and Conditions.The Master Agreement is incorporated herein by reference as though fully set
forth herein,and the terms and conditions therein shall apply to this Agreement except as expressly
changed or modified by this Agreement. In the event of a conflict between the provisions of this
M Agreement and the Master Agreement,the provisions of this Agreement shall prevail.
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c 3. Duties and Responsibilities of Toter.
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3.1.Toter agrees to supply and deliver Products of varying sizes for the collection of single stream
recycling,garbage and yard waste as directed by the City in accordance with the City. Products are
as specified on Schedule 1 hereto.
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3.2.Toter shall provide delivery of Products to new households,swap out existing Products with
replacement Products,and provide Repair and Maintenance("R&M")to existing City Products at
residential units(including providing repair parts at no charge for such existing City Products,
except that Toter shall not be required to provide repair parts at no charge for repairs or parts
based on abuse,neglect, lack of maintenance or failure to follow service o i�g-----
FClOFFICIAL RECORD
DToter/Ft.worth Agreement 1 ' CRETARY
FT.WORTH,TX
instructions),as requested by the City through the term of this Agreement, as specified on
Schedule 2 hereto. New parts requested to rebrand the carts, change colors, otherwise modify
rather than repair the carts or as specifically excepted above will be sold to the City based on
current National IPA pricing.
3.3.Contractor shall track inventory by cart size and ensure carts are ordered and delivered to maintain
sufficient cart stock for uninterrupted service for residents.
4. Term. This Agreement shall begin on April 1, 2015 ("Effective Date") and will end January 30, 2018
("Term Expiration Date").
5. Delivery to the City.
5.1.Toter shall be responsible for any assembly of Products from the Toter manufacturing
location and delivery of fully assembled Products to each resident as directed by the City. Price
quoted herein shall include all cost of delivery by Toter(or Toter subcontractor), using Toter's
standard methods for shipping such Products.Toter may, in its sole discretion, make partial shipments
of Products to the City. Title to Products and Risk of Loss to Products shipped passes to the City upon
Toter's tender of the Products to the City at the receiving point.
5.2.Delivery to residences. Unless otherwise expressly agreed to in writing and approved by both
parties, all Cart deliveries will be made within the city limits of the City of Fort Worth,Texas, as it may
be expanded by annexation at the discretion of the City Council.The turn-around time for delivery of
Cart(s) shall not exceed two business days from 8:00 am following the date of request.
5.3.For any delivery of a new Cart(distinguished from the replacement of an existing City cart)to a
household,Toter will be responsible for delivering the Cart to a location at the residence or other user
locations where the Cart can be easily serviced by City's intended Recycling or Solid Waste Collection
Equipment. City will direct Toter about such Cart placement.Title to Products and Risk of Loss to
Products shipped passes to the City upon Toter's tender of the Products to the carrier at the shipping
point.
5.4.With the delivery of the Cart,Toter will attach, in a waterproof container, in a location on the Cart
as specified by City, an informational packet designed and provided by City which will give
instruction to the resident or other user on the proper use and placement of the Cart for service on
pick-up days.
5.5.For new and replacement Cart deliveries that are made by Toter(or Toter subcontractor), serial
numbers on Products will be recorded into either the City's data base or, using an interface that ties
directly into the City's system,Toter's data base showing the Cart by serial number delivered to each
address.All data files will be forwarded to the City of Fort Worth in a format that is compatible with
the! City Customer Relations Management Software(CRMS)
5.6.Toter shall use the City Customer Relations Management Software(CRMS)to track cart serial
numbers by address and City customer account, which will be input at the time of delivery, and to
respond to any open work orders or problems by cart and by address during the term of the
Agreement. City will make CRMS available to Toter at no cost to Toter and will provide all necessary
technical support.
6. Price and Price Adiustment.
Toter/Ft.Worth Agmt 2 3/6/2015
6.1.Price.The City shall purchase the Products from Toter at the prices set forth on Schedule 2 attached
hereto ("Prices").
6.2.No Set-off Right.The City shall not, and acknowledges that it will have no right, under this
Agreement,to withhold,offset,recoup or debit any amounts owed (or to become due and owing)
to Toter,whether under this Agreement or otherwise, against any other amount owed(or to
become due and owing)to it by Toter, whether relating to Toter's breach or non-performance of
this Agreement or otherwise.
7. Termination.
7.1.Toter shall not be deemed to be in default becauseof any failure to perform under this
Agreement,if the failure arises from causes beyond the control and without the fault or
negligence of Toter. Such causes shall include acts of God,acts of the public enemy, acts of
Government(in either it's sovereign or contractual capacity), acts of terrorism,fires, flood,
epidemics,quarantine restrictions, strikes, freight embargoes, and unusually severe weather
for the area.
7.2.If the failure to perform is caused by the failure of a subcontractor of Toter's to perform,and if
such failure was beyond the control of either Toter and the subcontractor, without either's
fault or negligence, Toter shall not be deemed to be in default unless the subcontracted
supplies or services were reasonably obtainable from other sources.
7.3.If Toter fails to begin work herein provided for within the time specified above, or to complete
such work within the time specified above, City shall give Toter written notice of such failure.
Toter shall respond in writing to such notice within five (5) business days and, in the event that
such response does not resolve the issue, representatives of the City and Toter shall meet within
ten (10) business days of the original notice from the City to discuss and attempt to resolve the
issue. In the event Toter has not cured the failure within thirty days from the date of the original
notice from the City, then City shall have the right to issue notice of termination of this
Agreement to take charge of and complete the work in such a manner as it may deem
appropriate. If City exceeds the costs detailed in the attached documents, City may deliver
to Toter a written itemized statement of the total excess costs, and Toter shall reimburse City for
such excess costs without delay.
7.4.If at any time during the term of this Agreement the work of Toter fails to meet the specifications
of the Agreement documents, City may notify Toter of the deficiency in writing. Failure of Toter
to correct such deficiency and complete the work required under this Agreement to the
satisfaction of City within thirty (30)days after written notification shall result in termination of
this Agreement. All costs and attorneys' fees incurred by City in the enforcement of any provision
of this Agreement shall be paid by Toter.
7.5.Either party may also terminate this Agreement with or without cause upon thirty(30)days prior
written notice to the other party,provided that such termination shall be without prejudice to any
other remedy the parties may have. In the event of termination,any work in progress will continue
to completion unless specified otherwise in the notice of termination. The City shall pay for any such
work in progress that is completed by Toter and accepted by the City.
8. Compliance with Laws.
8.1.Toter shall at its own expense at all times comply with all laws applicable to the manufacture and
operation of its business and to this Agreement. Further,the Products provided hereunder shall
Toter/Ft.Worth Agmt 3 3/6/2015
have the certifications,credentials, authorizations,licenses and permits required at the time of
production.
8.2.The City shall at all times comply with all laws applicable to this Agreement and the City's
performance of its obligations hereunder.Without limiting the generality of the foregoing,the City
shall (a) at its own expense,maintain all certifications,credentials,licenses and permits necessary
to conduct its business relating to the purchase or use of the Products and(b)shall not knowingly
engage in any activity or transaction involving the Products, by way of resale,lease,shipment, use
or otherwise,that violates any applicable law.
9. Warranty and Remedy.
9.1.Limited Product Warranty;Exclusive Remedy.Toter's Limited Warranties,Disclaimers of
Warranties, Limitation of Liabilities and Remedies and Limited Warranty Periods are collectively
contained covered under the Master Agreement,and incorporated by reference herein. There are
no warranties,express or implied,which extend beyond the separate written warranty referenced
herein.
9.2.Inspection.The City shall have the right to inspect Products received under this Agreement upon
receipt of such Products("Inspection Period")and either accept or,and reject such Products that
are Nonconforming Goods.The City will be deemed to have accepted Products unless it provides
Toter with written notice of any Nonconforming Goods within 10 days following the Inspection
Period,stating with specificity all defects and nonconformities,and furnishing such other written
evidence or other documentation as may be reasonably required by Toter.If after acceptance the
City notifies Toter of any Nonconforming Goods,Toter shall determine,in its reasonable
discretion,whether the Products are Nonconforming Goods.If Toter determines that such
Products are Nonconforming Goods,Toter shall replace such Nonconforming Goods with
conforming Products.
10. Indemnification.
10.1. Indemnification. Subject to the terms and conditions of this Agreement,Toter shall
indemnify,defend and hold harmless the City and its representatives,officers,directors,
employees, agents,affiliates,successors and permitted assigns against any and all losses,
damages,liabilities, deficiencies, claims,actions,judgments,settlements,interest, awards,
penalties,fines,costs,or expenses of whatever kind,including reasonable attorneys'fees,fees and
the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing
any insurance providers, incurred by awarded against the City in a final non-appealable judgment
(collectively,"Losses"),relating to any third-party claim or any direct claim against Toter alleging:
10.1.1. material breach or non-fulfillment of any representation,warranty or covenant under this
Agreement by Toter or Toter's personnel;
10.1.2. any negligent or more culpable act or omission of Toter or Its personnel(including any
recklessness or willful misconduct)in connection with the performance of this Agreement;
10.1.3. any bodily injury,death of any Person or damage to real or tangible personal property
caused by the willful or negligent acts or omissions of Toter or its personnel;or
10.1.4. any failure by Toter or its personnel to materially comply with any applicable Laws.
Toter/Ft.Worth Agmt 4 3/6/2015
10.1.5. Notwithstanding anything to the contrary in this Agreement,this Section does not apply to
any claim (whether direct or indirect)for which a sole or exclusive remedy is provided for
under another section of this Agreement.
10.2. Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in
this Agreement, an Toter is not obligated to indemnify or defend(if applicable) an the City against
a claim or corresponding Loss if it arises out of or results from,in whole or in part,the City's or its
personnel's:
10.2.1. negligence or more culpable act or omission (including recklessness or willful misconduct);
10.2.2. bad faith failure to materially comply with any of its obligations set forth in this Agreement;
or
10.2.3. use of the Goods in any manner not otherwise authorized under this Agreement or that
does not materially conform with any usage instructions/guidelines/specifications provided
by Toter.
10.3. Limitation of Liability. NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. EXCEPT
FOR OBLIGATIONS TO MAKE PAYMENT UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER
PARTY OR THEIR REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL,
SPECIAL, EXEMPLARY,PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR
DIMINUTION IN VALUE,ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT,
REGARDLESS OF(A) WHETHER SUCH DAMAGES WERE FORESEEABLE,(B)WHETHER OR NOT THE
OTHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND(C)THE LEGAL OR
EQUITABLE THEORY(CONTRACT,TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED,AND
NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL
PURPOSE.
11. Confidentiality and Restrictions.
11.1. Scope of Confidential Information. From time to time during the Term,either Party(as the
"Disclosing Party")may disclose or make available to the other Party(as the"Receiving Party")
information about its business affairs,goods and services,confidential information and materials
comprising or relating to intellectual property rights,trade secrets,third-party confidential
information and other sensitive or proprietary information.Such information,whether orally or in
written,electronic or other form or media,and shall be marked,designated or otherwise identified
as"confidential," and is collectively referred to as"Confidential Information" hereunder.
Notwithstanding the foregoing,Confidential Information does not include information that,at the
time of disclosure and as established by documentary evidence:
11.1.1. is or becomes generally available to and known by the public other than as a result of,
directly or indirectly, any breach of this Section by the Receiving Party or any of its
Representatives;
11.1.2. is or becomes available to the Receiving Party on a non-confidential basis from a third-party
source,provided that such third party is not and was not prohibited from disclosing such
Confidential Information;
11.1.3. was known by or in the possession of the Receiving Party or its Representatives prior to
being disclosed by or on behalf of the Disclosing Party;
Toter/Ft.Worth Agmt 5 3/6/2015
11.1.4. was or is independently developed by the Receiving Party without reference to or use of, in
whole or in part,any of the Disclosing Party's Confidential Information;or
11.1.5. is required to be disclosed pursuant to applicable law.
11..2. Protection of Confidential Information.The Receiving Party shall,during the Term and for 3
years thereafter:
11.2.1. protect and safeguard the confidentiality of the Disclosing Party's Confidential Information
with at least the same degree of care as the Receiving Party would protect its own
Confidential Information;
11.2.2. not use the Disclosing Party's Confidential Information,or permit it to be accessed or used,
for any purpose other than to exercise its rights or perform its obligations under this
Agreement or unless required by the Texas Public Information Act; and
11.2.3. not disclose any such Confidential Information to any Person, except to the Receiving
Party's Representatives who need to know the Confidential Information to assist the
Receiving Party,or act on its behalf,to exercise its rights or perform its obligations under this
Agreement or unless required by the Texas Public Information Act.
11.3. Toter recognizes that the City is subject to Chapter 552 of the Texas Government Code,the
Texas Public Information Act.The City agrees to inform Toter of a request of Confidential
Information made under the Act,and Toter shall be responsible for petitioning the Texas Attorney
General for permission not to disclose its proprietary information.
11.4. On the expiration or earlier termination of this Agreement,at the Disclosing Party's written
request,the Receiving Party and its representatives shall, pursuant herein,promptly return or
destroy(at the discretion of Disclosing Party) all Confidential Information and copies thereof that it
has received under this Agreement.
12. Miscellaneous.
12.1. Relationship of the Parties.The relationship between Toter and the City is solely that of
vendor and vendee,and are independent contracting parties. Nothing in this Agreement creates
any agency,joint venture, partnership or other form of joint enterprise,employment or fiduciary
relationship between the Parties. Neither Party has any express or implied right or authority to
assume or create any obligations on behalf of or in the name of the other Party or to bind the
other Party to any contract,agreement or undertaking with any third party.
12.2. Entire Agreement.The Parties intend for the express terms and conditions contained in this
Agreement(including any Schedules hereto)to exclusively govern and control each of the Parties'
respective rights and obligations regarding the subject matter of this Agreement,and this
Agreement is expressly limited to such terms and conditions.Without limitation of the foregoing,
any additional,contrary or different terms contained in any other request or communication by
the City pertaining to the sale of Products by Toter,and any attempt to modify,supersede,
supplement or otherwise alter this Agreement,will not modify this Agreement or be binding on
the Parties unless such terms have been fully approved in a signed writing by authorized
representatives of both Parties. This Agreement,including and together with any related exhibits
and schedules,constitutes the sole and entire agreement of the Parties with respect to the subject
matter contained herein and therein,and supersedes all prior and contemporaneous
Toter/Ft,Worth Agmt 6 3/6/2015
understandings, agreements, representations and warranties, both written and oral,with respect
to such subject matter.
12.3. Survival:Statute of Limitations.Subject to the limitations and other provisions of this
Agreement:(a)the representations and warranties of the Parties contained herein will survive the
expiration or earlier termination of this Agreement for a period of 12 months after such expiration
or termination; and (b)any provision that,in order to give proper effect to its intent,should
survive such expiration or termination,will survive the expiration or earlier termination of this
Agreement for the period specified therein,or if nothing is specified for a period of 12 months
after such expiration or termination.All other provisions of this Agreement will not survive the
expiration or earlier termination of this Agreement.
12.4. Notices.All notices, requests,consents,claims,demands,waivers and other
communications under this Agreement(each,a"Notice") must be in writing and addressed to the
other Party at its address set forth below(or to such other address that the receiving Party may
designate from time to time in accordance with this section).All Notices must be delivered by
personal delivery,nationally recognized overnight courier or certified or registered mail (in each
case, return receipt requested, postage prepaid).
Notice to Toter: 841 Meacham Road,
Statesville, NC 28677
Attention:
Kellie K.Clark,
Sr. Manager,Bids/Contracts
Email: toterbids@toter.com
Fax: 704-878-0734
Phone: 800-424-0422 or 704-872-8171, Ext 257
Notice to City of Fort Worth:
4100 Columbus Trail
Fort Worth,TX 76133
Attention:
Kim A. Mote
Assistant Director,Code Compliance Department
Solid Waste Services Division
Email: kim.mote@fortworthtexas.gov
Fax: 817-392-5170
Phone: 817-392-5153
Copy to:
1000 Throckmorton
Fort Worth,Texas 7610;
Attention:
City Manager
Toter/Ft.Worth Agmt 7 3/6/2015
12.5. Headings.The headings in this Agreement are for reference only and do not affect the
interpretation of this Agreement.
12.6. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in
any jurisdiction,such invalidity,illegality or unenforceability does not affect any other term or
provision of this Agreement or invalidate or render unenforceable such term or provision in any
other jurisdiction. Upon a determination that any term or provision is invalid, illegal or
unenforceable,the Parties shall negotiate in good faith to modify this Agreement to effect the
original intent of the Parties as closely as possible in order that the transactions contemplated
hereby be consummated as originally contemplated to the greatest extent possible.
12.7. Amendment and Modification. No amendment to or rescission,termination or discharge of
this Agreement is effective unless it is in writing,identified as an amendment to,or rescission,
termination or discharge of this Agreement and signed by an authorized Representative of each
Party.
12.8. Waiver.
12.8.1. No waiver under this Agreement is effective unless it is in writing and signed by the Party
waiving its right.
12.8.2. Any waiver authorized on one occasion is effective only in that instance and only for the
purpose stated, and does not operate as a waiver on any future occasion unless specifically
stated.
12.8.3. None of the following constitutes a waiver or estoppel of any right, remedy, power,
privilege or condition arising from this Agreement: (i)any failure or delay in exercising any
right, remedy, power or privilege or in enforcing any condition under this Agreement;or(ii)
any act,omission or course of dealing between the Parties.
12.9. Cumulative Remedies.All rights and remedies provided in this Agreement are cumulative
and not exclusive,and the exercise by either Party of any right or remedy does not preclude the
exercise of any other rights or remedies that may now or subsequently be available at law, in
equity, by statute,in any other agreement between the Parties or otherwise.
12.10. Assignment.A Party may not assign any of its rights or delegate any of its obligations under
this Agreement without the prior written consent of the other Party. Notwithstanding, a Party may
assign any of its rights or delegate any of its obligations under this Agreement,without any prior
consent,to (a) an affiliate of the assigning/delegating Party,(b)a successor of the
assigning/delegating Party, by consolidation, merger or operation of law,(c)any Person acquiring
all or substantially all of assigning/delegating Party's assets; providing, in each instance,the
assigning/delegating Party shall (x) notify the other Party of such instance,within a reasonable
time thereafter, and (y) notify the permitted successor or assignee of the respective duties and
obligations hereunder.Any purported assignment or delegation in violation of this Section is null
and void. No assignment or delegation relieves the assigning or delegating Party of any of its
obligations under this Agreement.
12.11. Successors and Assigns.This Agreement is binding on and inures to the benefit of the
Parties and their respective permitted successors and permitted assigns.
Toter/Ft.Worth Agmt 8 3/6/2015
12.12. No Third-Party Beneficiaries.This Agreement benefits solely the parties to this Agreement
and their respective permitted successors and permitted assigns and nothing in this Agreement,
express or Implied,confers on any other Person any legal or equitable right, benefit or remedy of
any nature whatsoever under or by reason of this Agreement.
12.13. Dispute Resolution.Any dispute, controversy or claim arising out of or relating to this
Agreement,or the breach,termination or invalidity hereof(each,a"Dispute'),shall be submitted
for negotiation and resolution to the President of the Toter Products Division(or to such other
person of equivalent or superior position designated by Toter in a written notice to the City) and
the City Manager and the City Attorney(or to such other person of equivalent or superior position
designated by city in a written notice to Toter),by delivery of written Notice(each, a "Dispute
Notice")from either of the Parties to the other Party.Such persons,or their designees shall
negotiate in good faith to resolve the Dispute.If the Parties are unable to resolve any Dispute
within 60 days after delivery of the applicable Dispute Notice,either Party may file suit in a court
of competent jurisdiction in accordance with the provisions herein. Nothing herein shall require
either party to provide more than the time required in section 6 for termination of the Agreement.
12.14. Governing Law.This Agreement,including all exhibits,schedules,attachments and
appendices attached hereto and thereto,and all matters arising out of or relating to this
Agreement, are governed by,and construed in accordance with,the Laws of the State of Texas,
United States of America,without regard to the conflict of law's provisions thereof.The Parties
agree that the United Nations Convention on Contracts for the International Sale of Goods does
not apply to this Agreement.
12.15. Counterparts.This Agreement may be executed in counterparts,each of which is deemed
an original,but all of which together are deemed to be one and the same agreement.A signed
copy of this Agreement delivered by facsimile,e-mail or other means of electronic transmission is
deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
12.16. Force Maieure.A Party shall not be liable or responsible to the other Party, nor be deemed
to have defaulted under or breached this Agreement,for any failure or delay in fulfilling or
performing any term of this Agreement,if such failure or delay is caused by or results from acts
beyond such Party's control, including: (a)acts of nature not normal for the geographical area of
Fort Worth,Texas; (b)flood,fire,earthquake or explosion; (c)war,invasion, hostilities (whether
war is declared or not),terrorist threats or acts, riot or other civil unrest;(d)requirements of Law;
(e)actions,embargoes or blockades in effect on or after the date of this Agreement;(f) action by
any Governmental Authority(whether or not having the effect of Law); (g)national or regional
emergency; (h)strikes, labor stoppages or slowdowns or other industrial disturbances; (i)
shortages of or delays in receiving raw materials;or(j)shortage of adequate power or
transportation facilities(each, a "Force Maieure Event").
12.17. Interpretations and Definitions.
12.17.1. For purposes of this Agreement: (a)the words "include,""includes"and"including"
are deemed to be followed by the words"without limitation'; (b)the word"or"is not
exclusive;(c)the words"herein,""hereof," "hereby,""hereto"and"hereunder" refer to this
Agreement as a whole; (d)words denoting the singular have a comparable meaning when
used in the plural,and vice-versa;and(e)words denoting any gender include all genders.
Unless the context otherwise requires,references in this Agreement: (x)to sections,exhibits,
schedules, attachments and appendices mean the sections of, and exhibits,schedules,
attachments and appendices attached to,this Agreement; (y)to an agreement,instrument or
Toter/Ft.Worth Agmt 9 3/6/2015
other document means such agreement, instrument or other document as amended,
supplemented and modified from time to time to the extent permitted by the provisions
thereof; and(z)to a statute means such statute as amended from time to time and includes
any successor legislation thereto and any regulations promulgated thereunder.The Parties
drafted this Agreement without regard to any presumption or rule requiring construction or
interpretation against the Party drafting an instrument or causing any instrument to be
drafted.The exhibits,schedules, attachments and appendices referred to herein are an
integral part of this Agreement to the same extent as if they were set forth verbatim herein.
IN WITNESS WHEREOF, in consideration of the mutual covenants,terms and conditions set forth
herein, and for other good and valuable consideration,the receipt and sufficiency of which are hereby
acknowledged,the Parties hereto have executed this Agreement as of the last date first set forth below
("Effective Date").
(Signature Page Follows}
'toter/Ft.Worth Agmt 10 3/6/2015
TOTER, LLC
By
N e:JhM 1GK�Tr
Title: Vlj.E P jiDElJT, 5 4t.E5
Date: NJA-sZEN 11 , 20)S'—
THE CITY OF FORT WORTH
By D!4�mb�
Rudolph Ja son
Acting Assistant City Manager
Date: 'b-rX- IS
APPROVED AS TO FORM AND LEGALITY
BY: �.ftK -
Christa R.Lo ez-Reynolds
Sr.Assistant City Attorney
ATTEST
By: 1�lzgn Fop
Ma Ka ser
City Secretary $ ;0
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Approved by M&C �>�� �°� C?
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Toter/Ft,Worth Agmt 11 OFFICIAL RECORD 5
CITY SECRETA
FT.WORTH,TX
SCHEDULE 1
PRODUCTS
Description of Products
96 Gallon Toter Model 79296—Recycling Cart
Body Color—769 Navy Granite
Lid Color—200 Black
Custom Serial Number hot stamped onto front of cart body
Body Hot Stamp on both sides(existing)
Lid Hot Stamp(existing)
Lid Insert(existing)
Wheels—10" Sunburst
1/3 Assembled
10 year Non-Prorated Warranty
96 Gallon Toter Model 79296—Garbage Cart
Body Color—279 Brownstone
Lid Color—200 Black
Custom Serial Number hot stamped onto front of cart body in White
Body Hot Stamp on both sides(existing)
Lid Hot Stamp(existing)
Lid Insert(existing)
Wheels—10"Sunburst
10 year Non-Prorated Warranty
96 Gallon Toter Model 79296—Yard Waste Cart
Body Color—940 Green
Lid Color—940 Green
Custom Serial Number hot stamped onto front of cart body in White
Body Hot Stamp on both sides(existing)
Lid Hot Stamp(existing)
Lid Insert(existing)
Wheels—10" Sunburst
10 year Non-Prorated Warranty
64 Gallon Toter Model 79264—Recycling Cart
Body Color—769 Navy Granite
Lid Color—200 Black
Custom Serial Number hot stamped onto front of cart body in White
Body Hot Stamp on both sides(existing)
Lid Hot Stamp(existing)
Lid Insert(existing)
Wheels—10"Sunburst
10 year Non-Prorated Warranty
Toter/Ft.Worth Agmt 12 3/6/2015
64 Gallon Toter Model 79264—Garbage Cart
Body Color—279 Brownstone
Lid Color—200 Black
Custom Serial Number hot stamped onto front of cart body in White
Body Hot Stamp on both sides(existing)
Lid Hot Stamp(existing)
Lid Insert(existing)
Wheels—10"Sunburst
10 year Non-Prorated Warranty
48 Gallon Toter Model 76548—Recycling Cart
Body Color—769 Navy Granite
Lid Color—200 Black
Custom Serial Number hot stamped onto front of cart body in White
Body Hot Stamp on both sides(existing)
Lid Hot Stamp(existing)
Lid Insert(existing)
Wheels—10"Sunburst
10 year Non-Prorated Warranty
48 Gallon Toter Model 76548—Garbage Cart
Body Color—279 Brownstone
Lid Color—200 Black
Custom Serial Number hot stamped onto front of cart body in White
Body Hot Stamp on both sides(existing)
Lid Hot Stamp(existing)
Lid Insert(existing)
Wheels-10"Sunburst
10 year Non-Prorated Warranty
32 Gallon Toter Model 76532—Recycling Cart
Body Color—769 Navy Granite
Lid Color—200 Black
Custom Serial Number hot stamped onto front of cart body in White
Body Hot Stamp on both sides(existing)
Lid Hot Stamp(existing)
Lid Insert(existing)
Wheels—10"Sunburst
10 year Non-Prorated Warranty
32 Gallon Toter Model 76532—Garbage Cart
Body Color—279 Brownstone
Lid Color—200 Black
Custom Serial Number hot stamped onto front of cart body in White
Body Hot Stamp on both sides(existing)
Lid Hot Stamp(existing)
Lid Insert(existing)
Wheels—10"Sunburst
10 year Non-Prorated Warranty
Cart Specifications
The following specifications represent the minimum standards.Acceptability of alternative specifications is
the sole determination of the Qty.
Toter/Ft.Worth Agmt 13 3/6/2015
• The cart shall be compatible with both standard American semi-automated bar-locking lifters(ANSI
type B)as well as automated arm lifters(ANSI type G).
• The wheeled carts are designed to contain recycling and solid waste materials including, but not
limited to, paper,fibers, glass,garbage, rubbish, and yard waste/clippings.
• The cart is provided with adequate wheels(minimum 10"diameter with 5/8 inch diameter solid
axle)and handles so that it can be pushed or pulled with little effort.
• The body of the cart is composed of recyclable medium density polyethylene that has been either
injection or rotationally molded with a minimum thickness of 0.130 inches.
• The capacity of the carts is 32,48, 64 and 96 U.S.gallons.
• The cart is designed to accommodate a load of three hundred thirty five(335)pounds for a 96
gallon cart,excluding the weight of the cart.
• The cart has wheels and axles that are designed to support the weight of the cart and its contents
up to 335 pounds for a 96 gallon cart.
• The cart is made with plastic material using hot melt compounding that is specifically prepared to
be colorfast so that the carts do not alter appreciably in normal use.
• The carts are Blue, Brown,Green or other color as directed by the City, and are stabilized against
ultraviolet light attack with UV 531 or equivalent.
• The lid of the cart is designed to facilitate water run-off.
• The design of the cart lid shall prevent the lid from being flung open by the wind.
• The lid is held closed by its weight only. No latches are used or required.
• The lid has handles to allow opening without having to touch the bottom edge of the lid.
• The cart,when empty,will not overturn when the lid is thrown fully open.
• The lid will have a hot stamp informational message educational message,or In-Mold Label(IML)
option as needed by the City.
• The cart is designed to prevent being turned over by winds of up to 40 mph in any direction.
• The cart will be hot stamped with "PROPERTY OF City of Fort Worth", and a Logo and informational
message as designated by the City, on the side of the cart. Stamping will be done in 1"white block
letters. SERIAL NUMBERS shall be hot stamped on the cart body using a numbering system of the
City's choosing.
Toter/Ft.Worth Agmt 14 3/6/2015
Schedule 2
Repair,Maintenance and Price
COST/RESIN ADJUSTMENTS MODEL
Purchase Price of Products: Including freight to City staging area:
Price per Cart—32 Gallon $35.50
Price per Cart—48 Gallon $39.25
Price per Cart-64 Gallon $42.46
Price per Cart-96 Gallon $49.24
Assembly and Delivery Charge per Cart $3.00
Additional Parts: City may request In Mold Labels(IML)for the cart lids which will allow for color imprints
for educational purposes. These mayor may not be utilized and will be ordered separately by the City.
Price per IML:
Price per Cart—32 Gallon(5000 quantity) $1.54
Price per Cart—32 Gallon(10,000 quantity) $1.15
Price per Cart—64 Gallon(5000 quantity) $2.03
Price per Cart—64 Gallon(10,000 quantity) $1.69
Price per Cart—96 Gallon(5000 quantity) $2.03
Price per Cart-96 Gallon(10,000 quantity) $1.69
Base Cart Pricing will be adjusted semi-annually per the following Cart Rate Adjustment Model:
1. Total Resin Weight of Products(body and lid only)
Model 79296-96 gallon cart —30.3 pounds resin weight
Model 79264-64 gallon cart —23.3 pounds resin weight
Model 76548-48 gallon cart —19.3 pounds resin weight
Model 76532-32 gallon cart —16.6 pounds resin weigh
2. Cost of Resin Per Pound on which Bidder's Contract is based
$0.985 per pound at date of 1/12/2015
3. Documentation of an independent resin index
Toter will use Plastics News resin index for LLDPE(Butene-1 comonomer Extrusion liner
film,Annual volumes greater than 20 million pounds,Average). Please note that Toter
reserves the right to use Chemical Data(LLDPE Resins, Butene-1, Large Volume,Average
Price Per Pound),and/or actual supplier communications to document price adjustments.
Toter/Ft.Worth Agmt 15 3/6/2015
Formula:
Prices will be held firm for 6 months from the Effective Date of the Agreement.The below example
shows the calculations for price adjustments:
Example for semi-annual Price Adiustments"period=6 months):
Period 2 Price=(Resin Weight per Cart x Resin Price Change)+ Period One (original contract price)
Cart Price
Period 3 Price=(Resin Weight per Cart x Resin Price Change)+ Period Two Cart Price
Repair and Maintenance Cost- Maintenance, repair, replacement and distribution of City Products for
term of Agreement price per household will be based on residents with active sanitation accounts.This fee
will cover all cost associated with picking up damaged Products, warranting as specified, replacement
parts, repairing Products, replacing Products and delivering repaired, replacement, or new Products to
residents. The City will retain ownership of all Products supplied under this Agreement. The turn-around
time for the maintenance, repair, or replacement of a Cart shall not exceed two business days from 8:00
am the day after the date a request for service is received. Maintenance and repair shall not interfere
with normal collection of the Cart.
Repair and Maintenance Cost per household per month at contract start date: $0.136670. Cost for Repair
and Maintenance will escalate at month end one year after contract is fully executed by$0.0033 per cart
per month and annually by $0.0033 per cart per month at the anniversary date for the term of this
contract.
Cost of each City Requested Cart Change-Out per Order $ 5.00
Cost for cleaning of Products (Products previously used by residents) $ 2.00
Facility Rent-Toter will pay rent to City in the amount of$2,000 per month for use of City facility and
staging area for Products. Rental fee will be reflected in monthly invoice as credit to City.
Toter will provide cleaning of Products returned to staging area after swaps. The City will provide access to
a wash bay(s) located near designated staging area for Toter(or Subcontractor,as defined herein) use. The
wash bay(s) meet current U.S. and State of Texas environmental laws for the discharge of waste water.
Toter/Ft.Worth Agmt 16 3/6/2015
M&C Review
Official site of the City of Fort!North,Texas
CITY COUNCIL AGENDA FDRT WORTH
Ir-
COUNCIL ACTION: Approved on 11/18/2014
DATE: 11/18/2014 REFERENCE NO.: **C-27082 LOG NAME: 23TOTER CARTS
CODE: C TYPE: CONSENT PUBLIC HEARING: NO
SUBJECT: Authorize Execution of Contract with Toter, Inc., in the Amount Up to $1,302,250.00 for the
First Year and to Expire January 30, 2018, for the Purchase, Delivery and Maintenance of
Garbage, Recycling and Yard Waste Carts, Using a Cooperative Purchasing Agreement
(ALL COUNCIL DISTRICTS)
RECOMMENDATION:
It is recommended that the City Council authorize the execution of a contract with Toter Inc., in the
amount up to $1,302,250.00 for the first year and to expire on January 30, 2018, for the purchase,
delivery and maintenance of garbage, recycling and yard waste carts using the National
Intergovernmental Purchasing Alliance Cooperative Purchasing Agreement No. 120576.
DISCUSSION:
On November 5, 2002, the City Council authorized City Secretary Contract No. 28217 with Toter, Inc.
(Toter), for the purchase and delivery of recycling and garbage carts (and later to include yard carts) as
well as repair, maintenance and replacement program for carts. This contract was for a period of 10
years and was amended 4 times.
The City and Toter also exercised the first and second one-year renewals in 2013 and 2014
respectively. Staff investigated rates and found that Toter held a National Intergovernmental
Purchasing Alliance (IPA) Contract No. 120576 for the same services as the City's current
contract. Use of rates in the National IPA Agreement would have resulted in the City paying more than
current rates offered by Toter to the City. However, Staff negotiated reduced rates on all the carts that
the City purchases to lower than both National IPA rates and current City rates which will be included in
this contract. Toter also proposes to continue the repair, maintenance and replacement services on
carts in active use at lower rates as well as extend the warranty for the existing carts through the term
of the new contract. The estimated savings to the City will be approximately$366,380.00 over the first
year of the contract and approximately$1,099,140.00 over the contract term. Other contract terms and
conditions will be the same as what is contained in the National IPA Agreement. Continuing to contract
with Toter allows for consistency in cart size, appearance and help to ensure efficient and correct repair
and replacement parts needed for the carts.
If approved, this contract with Toter will expire on January 30, 2018.
First,year expenditures in the amount up to $1,302,250.00 will cover the costs of additional carts as well
as the annual costs for repair and maintenance of existing carts in active service as noted below:
Cart Size Cost
32 gallon $35.50
64 gallon $44.59
96 gallon $49.24
Based on Fiscal Year 2013 data, the Department estimates that 11,855 additional carts will be
purchased in Fiscal Year 2015 at a cost of$487,300.00.
http://apps.cfwriet.orglooLvidl_packet/me review.asp?ID=20018&co rrildate=11/18!2014 119
M&C Review
COOPERTIVE PURCHASE - State law provides that a local government purchasing an item under a
Cooperative Purchasing Agreement satisfies any state law requiring that the local government seek
competitive bids for the purchase of the item. The contract with the Nation IPA has been competitively
bid to increase and simplify the purchasing power of the government entities.
Additional costs in the amount of$814,950.00 will repair and maintain an estimated 441,000 waste
carts in active service throughout the City as well as assemble and deliver new waste carts for Fiscal
Year 2015. These costs are included in the annual Solid Waste Division operating budget.
M/WBE OFFICE -Toter is in compliance with the City's BDE Ordinance by committing to five percent
MBE (African American) in this project. The City's MBE (African American) goal for this project is five
percent.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that funds are available in the current operating
budget, as appropriated, of the Solid Waste Fund.
TO Fund/Account/Centers FROM Fund/Account/Centgrs
PE64 524010 0239902 $487,300.00
PE64 539120 0239902 $814,950.00
Submitted for City Manager's Office by: Charles W. Daniels (6199)
Originating Deaartment Head: Brandon Scott Bennett (6345)
Additional Information Contact: Kim A. Mote (5153)
ATTACHMENTS
Xgsl1apps.CrWrA.0r9fWj- 1_pWkWmC review.asp?ID=2U018Mmsriidate=ll/18x2014 ��'