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Contract 2020-011A#2020-11-A AGREEMENT FOR REFUSE CONTAINERS & COMPACTORS, COMMERCIAL AND RESIDENTIAL THIS AGREEMENT, is made and entered into this Iq day of M QC r-dN 2020, by and between the CITY OF CLERMONT, FLORIDA, a municipal corporation under the laws of the State of Florida whose address is: 685 W. Montrose Street, Clermont, Florida, (hereinafter referred to as "CITY"), and OTTO ENVIRONMENTAL SYSTEMS NORTH AMERICA, INC., whose address is: 12700 General Dr., Charlotte, NC 28273, (hereinafter referred to as "CONTRACTOR"). WHEREAS, the City of St. Petersburg through the public procurement process awarded an Agreement for refuse containers & compactors, commercial and residential, City of St. Petersburg Contract Number 230020; WHEREAS, CITY desires to utilize the above -referenced awarded bid, CONTRACTOR's response thereto and Agreement in accordance with CITY's procurement policy; and WHEREAS, CONTRACTOR desires to enter into a contract with CITY based on the terms and conditions of the City of St. Petersburg Contract Number 230020; WITNESSETH: That the parties hereto, for the consideration hereinafter set forth, mutually agree as follows: ARTICLE I — SCOPE OF WORK The CONTRACTOR shall furnish refuse containers & compactors, commercial and residential as described in the City of St. Petersburg Contract Number 230020, which is attached hereto and incorporated herein as Exhibit "A" and shall perform everything required by this Agreement and the other exhibits attached hereto. Provided, however, that nothing herein shall require CITY to purchase or acquire any items or services from CONTRACTOR that is not specified in the CITY's purchase order. To the extent of a conflict between this Agreement and Exhibit "A", the terms and conditions of this Agreement shall prevail and govern. In all instances the CITY purchasing policy, resolutions and ordinances shall apply. ARTICLE II — THE CONTRACT SUM CITY shall pay CONTRACTOR, for the faithful performance of the Agreement as set forth in the Agreement documents and the Unit Price Schedule as set forth in Exhibit `B', attached hereto and incorporated herein. ARTICLE III — TERM AND TERMINATION 1. This Agreement is to become effective upon execution by both parties, and shall remain in effect until January 31, 2023, unless terminated or renewed by the City of St. Petersburg. 2. Notwithstanding any other provision of this Agreement, CITY may, upon written notice to CONTRACTOR, terminate this Agreement: a) without cause and for CITY's convenience upon thirty (30) days written notice to CONTRACTOR b) if CONTRACTOR is adjudged to be bankrupt; c) if CONTRACTOR makes a general assignment for the benefit of its creditors; d) CONTRACTOR fails to comply with any of the conditions of provisions of this Agreement; or e) CONTRACTOR is experiencing a labor dispute, which threatens to have a substantial, adverse impact upon the performance of this Agreement, without prejudice to any other right or remedy CITY may have under this Agreement. In the event of such termination, CITY shall be liable only for the payment of all unpaid charges, determined in accordance with the provisions of this Agreement, for work, properly performed and accepted prior to the effective date of termination. 3. Upon mutual Agreement of the parties, this Agreement may be renewed for one (1) additional two-year term. ARTICLE IV — COMMENCEMENT AND COMPLETION OF WORK The CONTRACTOR shall provide all items in the timeframe as reasonably set forth in the applicable purchase order or notice to proceed. ARTICLE V — PAYMENTS In accordance with the provisions fully set forth in the Contract Documents, CONTRACTOR shall submit an invoice to CITY upon completion of the services and delivery of products to CITY as set forth in the applicable purchase order. CITY shall make payment to the CONTRACTOR for all accepted deliveries and undisputed product delivered and services provided, within thirty (30) calendar days of receipt of the invoice. ARTICLE VI — DISPUTE RESOLUTION - MEDIATION Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to voluntary arbitration or the institution of legal or equitable proceedings by either party. 2. The CITY and CONTRACTOR shall endeavor to resolve claims, disputes and other matters in question between them by mediation. 3. The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in Clermont, Lake County, Florida, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement Agreements in any court having jurisdiction thereof. 14 ARTICLE VII — INSURANCE AND INDEMNIFICATION RIDER 1. Worker's Compensation Insurance - The CONTRACTOR shall take out and maintain during the life of this Agreement, Worker's Compensation Insurance for all its employees connected with the work of this Project and, in case any work is sublet, the CONTRACTOR shall require the subCONTRACTOR similarly to provide Worker's Compensation Insurance for all of the subCONTRACTOR employees unless such employees are covered by the protection afforded by the CONTRACTOR. Such insurance shall comply with the Florida Worker's Compensation Law. In case any class of employees engaged in hazardous work under this Agreement at the site of the Project is not protected under the Worker's Compensation statute, the CONTRACTOR shall provide adequate insurance, satisfactory to the CITY, for the protection of employees not otherwise protected. 2. CONTRACTOR's Commercial General Liability Insurance - The Contactor shall take out and maintain during the life of this Agreement, Commercial General Liability and Business Automobile Liability Insurance as shall protect it from claims for damage for personal injury, including accidental death, as well as claims for property damages which may arise from operating under this Agreement whether such operations are by itself or by anyone directly or indirectly employed by it, and the amount of such insurance shall be minimum limits as follows: (a) CONTRACTOR's Commercial General, $1,000,000 Each, ($2,000,000 aggregate). Liability Coverages, Bodily Injury Occurrence, & Property Damage Combined Single Limit; (b) Automobile Liability Coverages, $1,000,000 Each, Bodily Injury & Property Damage Occurrence, Combined Single Limit; (c) Miscellaneous Professional Liability, $1,000,000 Each Claim and Aggregate Limit; Insurance clause for both COMMERCIAL GENERAL AND AUTOMOBILE BODILY INJURY AND PROPERTY DAMAGE shall be amended to provide coverage on an occurrence basis. 3. SubCONTRACTOR's Commercial General Liability Insurance - The CONTRACTOR shall require each of his subCONTRACTORs to procure and maintain during the life of its subcontract, insurance of the type specified similar to above per their scope of work and what is required with their contract with CONTRACTOR. 4. Indemnification Rider (a) To the fullest extent permitted by law, the CONTRACTOR shall indemnify and hold harmless the CITY its agents and its employees from and against all claims, damages, losses and expenses, including but not limited to reasonable attorney's fees, arising out of or resulting from its performance of the Work, provided that any such claim, 47 damage, loss or expense (1) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) , and (2) is caused in whole or in part by any negligent act or omission of the CONTRACTOR, any subCONTRACTOR, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not such acts are caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right to obligation of indemnity which would otherwise exist as to any party or person described in this Article; however, this indemnification does not include sole acts of negligence, damage or losses caused by the CITY and its other contractors. (b) In any and all claims against the CITY or any of its agents or employees by any employee of the CONTRACTOR, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligations under this Paragraph shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the CONTRACTOR or any subcontractor under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts. (c) The CONTRACTOR hereby acknowledges receipt of ten dollars and other good and valuable consideration from the CITY for the indemnification provided herein. ARTICLE VIII — NOTICES All notices shall be in writing and sent by United States mail, certified or registered, with return receipt requested and postage prepaid, or by nationally recognized overnight courier service to the address of the party set forth below. Any such notice shall be deemed given when received by the party to whom it is intended. CONTRACTOR: Otto Environmental Systems North America, Inc 12700 General Dr. Charlotte, NC 28273 Attn: Sandra Abdow, Municipal Manager CITY: City of Clermont Attn: Darren Gray, City Manager 685 W. Montrose Street Clermont, FL 34711 4 ARTICLE IX — MISCELLANEOUS 1. Attorneys' Fees. In the event a suit or action is instituted to enforce or interpret any provision of this Agreement, the prevailing party shall be entitled to recover such sum as the Court may adjudge reasonable as attorneys' fees at trial or on any appeal, in addition to all other sums provided by law. 2. Waiver. The waiver by city of breach of any provision of this Agreement shall not be construed or operate as a waiver of any subsequent breach of such provision or of such provision itself and shall in no way affect the enforcement of any other provisions of this Agreement. 3. Severability. If any provision of this Agreement or the application thereof to any person or circumstance is to any extent invalid or unenforceable, such provision, or part thereof, shall be deleted or modified in such a manner as to make the Agreement valid and enforceable under applicable law, the remainder of this Agreement and the application of such a provision to other persons or circumstances shall be unaffected, and this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law. 4. Amendment. Except for as otherwise provided herein, this Agreement may not be modified or amended except by an Agreement in writing signed by both parties. 5. Entire Agreement. This Agreement including the documents incorporated by reference contains the entire understanding of the parties hereto and supersedes all prior and contemporaneous Agreements between the parties with respect to the performance of services by CONTRACTOR. 6. Assignment. Except in the event of merger, consolidation, or other change of control pursuant to the sale of all or substantially all of either party's assets, this Agreement is personal to the parties hereto and may not be assigned by CONTRACTOR, in whole or in part, without the prior written consent of city. 7. Venue. The parties agree that the sole and exclusive venue for any cause of action arising out of this Agreement shall be Lake County, Florida. 8. Applicable Law. This Agreement and any amendments hereto are executed and delivered in the State of Florida and shall be governed, interpreted, construed and enforced in accordance with the laws of the State of Florida. 9. Public Records. Contractor expressly understands records associated with this project are public records and agrees to comply with Florida's Public Records law, to include, to: (a) Keep and maintain public records that ordinarily and necessarily would be required by the CITY in order to perform the services contemplated herein. 5 (b) Provide the public with access to public records on the same terms and conditions that the CITY would provide the records and at a cost that does not exceed the cost provided in this Florida's Public Records law or as otherwise provided by law. (c) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. (d) Meet all requirements for retaining public records and transfer, at no cost, to the CITY all public records in possession of CONTRACTOR upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. CONTRACTOR shall use reasonable efforts to provide all records stored electronically to the CITY in a format that is compatible with the information technology systems of the CITY. (e) IF CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTRACTOR SHALL CONTACT THE CITY'S CUSTODIAN OF PUBLIC RECORDS AT CITY CLERK'S OFFICE, (352) 241-7331. ARTICLE X — AGREEMENT DOCUMENTS The Agreement Documents, as listed below are herein made fully a part of this Agreement as if herein repeated. Document Precedence: 1. This Agreement 2. Purchase Order/Notice to Proceed 3. An applicable Contractor Quote or Statement of Work 4. All documents contained in the City of St. Petersburg Contract Number 230020. M. IN WITN ESS WHEREOF, the parties hereto have executed this Agreement on this day of r ► ►Ct f c k-- .12020. City of Clermont Yenay, City anager Otto Environmental ystems North America, Inc By: (Name rinted o Typed)M * s-ka-p ['()S+C / %0 Title re-3; e4 -P 4- C Q Attest: Corporate Secretary (Name Printed or Typed) 7 EXHIBIT A Blanket Purchase Agreement 230020, 1 Contract Terms and Conditions Table of Contents City of St Petersburg Solicitation Documents.................................................................................................................5 AGREEMENT......................................................................................................................................................5 Terms & Conditions - Supplies and Equipment Contract..............................................................................5 Price Escalation / De-Escalation...................................................................................................................12 City of St. Petersburg Page 4 of 13 Blanket Purchase Agreement 230020, 1 City of St Petersburg Solicitation Documents AGREEMENT Terms & Conditions - Supplies and Equipment Contract TERMS & CONDITIONS - SUPPLIES & EQUIPMENT CONTRACT These terms and conditions ("Terms and Conditions") are made and agreed to by and between the Vendor set forth on the attached CSP BPA FORM or CSP CPA FORM, as applicable ("BPA/CPA Form") ("Vendor") and the City of St. Petersburg, Florida ("City") (collectively, "Parties"). 1. Sale of Goods. The City may purchase from Vendor any of the goods set forth or described in the BPA/CPA Form or an attachment to the BPA/CPA Form (if such attachment is specifically referenced in the BPA/CPA Form), as applicable ("Goods"), in the quantities desired by the City, which Goods and quantities shall be set forth in individual purchase orders issued by the City (individually, "Purchase Order" and collectively, "Purchase Orders"). The Purchase Orders shall be incorporated herein by reference upon issuance. 2. Components. A. Except as otherwise provided in paragraph 28 of these Terms and Conditions, the City's purchase of the Goods is governed by these Terms and Conditions, the BPA/CPA Form (including attachments to such BPA/CPA Form if such attachments are specifically referenced in the BPA/CPA Form), the Purchase Orders, if any, and any documents included in the procurement issued by the City or Vendor's responses to such procurement ("Solicitation Documents"). B. In the event of an inconsistency or conflict between or among the documents referenced in paragraph 2.A., the following order of precedence shall govern: (i) these Terms and Conditions; (ii) the BPA/CPA Form, exclusive of attachments; (iii) the attachments to the BPA/CPA Form, if any; (iv) the Purchase Orders, if any; and (v) the Solicitation Documents. In the event of an inconsistency or conflict between or among the Solicitation Documents, the order of precedence for the Solicitation Documents shall be as follows: (a) the City's procurement documents (e.g. Request for Proposals, Invitation for Bids), (b) Vendor's best and final offer, if any, (c) questions and clarifications, if any, and (d) Vendor's response to the City's procurement documents (e.g. Proposal, Offer). 3. Payment. A. Pricine. Provided Vendor faithfully performs its obligations contained in these Terms and Conditions and the City has accepted the Goods in accordance with these Terms and Conditions, the City shall pay Vendor for the Goods set forth in the applicable Purchase Order in accordance with the unit prices set forth or described in the BPA/CPA Form or a specifically referenced attachment to the BPA/CPA Form, as applicable ("Unit Prices"), an amount not to exceed the Agreed Amount set forth in the BPA/CPA Form for the initial Term ("Agreed Amount"). The Agreed Amount shall be inclusive of all delivery costs and Vendor's warranty obligations under these Terms and Conditions. The Unit Prices and the Agreed Amount may be increased only in strict accordance with these Terms and Conditions. B. Invoices. Vendor shall invoice the City upon each delivery of Goods. Vendor shall not invoice the City for any Goods prior to delivery of such Goods. All invoices shall be submitted to ap@stpete.org and shall contain the following information: (i) City's Purchase Order number; (ii) Name of Vendor, City of St. Petersburg Page 5 of 13 Blanket Purchase Agreement 230020, 1 (iii) Date of preparation of invoice, (iv) Vendor's invoice number, (v) Address to which the City is to send payment, (vi) A description of the Goods, including quantities, unit prices, and extensions, (vii) Discount payment terms, if applicable, and (viii) Name of requesting City department for whom the Goods were shipped. C. Payment. If the City accepts the Goods described in each invoice in accordance with these Terms and Conditions, the City shall pay each invoice within thirty (30) days after receipt of such invoice (provided Vendor is in compliance with these Terms and Conditions). D. Cash Discounts. In the event the City is entitled to a cash discount for early payment of invoices, the period of computation for the cash discount will commence on the date of the City's receipt of an invoice completed in compliance with these Terms and Conditions. If an adjustment to payment is necessary due to damage to Goods, the cash discount period shall commence on the date the City approves the Goods in accordance with these Terms and Conditions. E. Firm Prices. Vendor warrants that the Unit Prices shall remain firm for the initial Twelve -Month Period (as defined below). F. Price Escalation/De-Escalation. After the initial Twelve -Month Period, Vendor and the City may make a request for an adjustment of the Unit Prices in accordance with the procedures set forth in the Solicitation Documents and an attachment to the CPABPA Form by submitting such request in writing to the other party. Such request shall include a written explanation and detailed supporting documentation as justification for such adjustment of the Unit Prices. Increases in the Unit Prices shall not be effective except pursuant to a writing duly executed by both Parties. Any adjustment in the Unit Prices will establish the new base Unit Prices from which any subsequent price adjustment will be calculated. 4. Delivery. A. Date and Location. The Goods shall be delivered to the shipping location set forth in the Purchase Order in accordance with the delivery date(s) specified in the Purchase Order. Time is of the essence as to Vendor's obligation to deliver the Goods in accordance with these Terms and Conditions. B. Documentation. Unless otherwise agreed to by the City in writing, all deliveries made by Vendor pursuant to the Purchase Order shall be accompanied by delivery tickets or sales slips which shall contain the following information: (i) Name of Vendor, (ii) Purchase Order Number, (iii) Description of Goods delivered (including model number and City's inventory item number if applicable), (iv) Quantity of each of the Goods, and (v) Date of shipment of the Goods. City of St. Petersburg Page 6 of 13 Blanket Purchase Agreement 230020, 1 C. Default. In the event Vendor fails to deliver the Goods in accordance with the delivery date(s) specified in the applicable Purchase Order, the City may order substitute goods from another vendor and recover from Vendor as damages the difference between the cost of cover and the price of such Goods under these Terms and Conditions, together with any incidental or consequential damages. Failure of the City to effect cover does not bar it from any other remedy. 5. Term. These Terms and Conditions shall commence on the Effective Date set forth in the BPA/CPA Form, and terminate on the End Date set forth in the BPA/CPA Form ("Term"), unless these Terms and Conditions are earlier terminated as provided for herein. The City reserves the right to extend these Terms and Conditions for the renewal period set forth in the Supplier Notes on the BPA/CPA Form, if applicable, provided such extension is mutually agreed upon by both Parties in writing. References in these Terms and Conditions to "Term" shall include the initial term and all renewal terms. All references to a "Twelve -Month Period" shall mean the initial twelve (12) month period beginning on the Effective Date, and all twelve (12) month periods thereafter throughout the Term. 6. Inspections and Acceptance. A. Inspection. The City shall have a right to inspect the Goods within a reasonable time not to exceed ten (10) business days after delivery to determine whether the Goods conform to the Specifications (as defined herein). B. Acceptance. The City shall accept the Goods delivered pursuant to each Purchase Order if all of the Goods for that Purchase Order fully conform to the Specifications and the requirements of these Terms and Conditions. C. Nonconforming Goods. The City will give Vendor notification within fifteen (15) business days after the City's receipt of the Goods of any discovery by the City of non-conformance of any of the Goods with the Specifications ("Non-conformance"). Vendor shall correct the Non-conformance or exchange the defective Goods with replacement Goods within a reasonable time mutually agreed to by the Parties, at no additional cost to the City. Vendor's failure to timely correct any Non-conformance is grounds for the City to reject and return to Vendor any or all Goods delivered pursuant to the Purchase Order at no additional cost to the City. In the event the City rejects any or all of the Goods due to Non-conformance, the City may order substitute goods from another vendor and recover from Vendor as damages the difference between the cost of cover and the price of such Goods under these Terms and Conditions, together with any incidental or consequential damages. Failure of the City to effect cover does not bar it from any other remedy. 7. Warranties. A. Scope. In addition to any other warranties that may exist, including but not limited to any warranties set forth in the BPA/CPA Form, a Purchase Order (including any attachments to such Purchase Order), and any warranties offered or accepted by Vendor in the Solicitation Documents, Vendor warrants that as of the City's acceptance of the Goods, the Goods shall (i) conform to the specifications set forth in the Purchase Order or its attachments or the specifications set forth in the Solicitation Documents, if any ("Specifications"); (ii) be free from defects in materials and workmanship; and (iii) be fit for the purpose for which such Goods are ordinarily employed and, if applicable, for the purpose set forth in the Solicitation Documents. Vendor further warrants that the Goods shall function and perform properly for a period of twelve (12) months after the City's acceptance of the Goods. To the extent longer warranty periods are set forth in the BPA/CPA Form, a Purchase Order (including any attachments to such Purchase Order), or the Solicitation Documents, such longer warranty periods shall apply. B. Remedy. In the event the City discovers during the applicable warranty period that the Goods or any portion or parts thereof were not as warranted, the City shall notify Vendor within ten (10) business days after discovery, and Vendor shall repair or replace the defective Goods or parts at no cost to the City within a reasonable time mutually agreed to by the Parties. Repair or replaced Goods or parts shall be warranted as new Goods are warranted pursuant to these Terms and Conditions. 8. Termination. These Terms and Conditions may be terminated at any time by the City for convenience upon thirty (30) days' written notice to Vendor. Further, the City may terminate this Agreement as provided in Florida City of St. Petersburg Page 7 of 13 Blanket Purchase Agreement 230020, 1 Statute section 287.135. Termination of these Terms and Conditions shall act as a termination of the BPA/CPA Form, the Purchase Orders (including attachments thereto), and the Solicitation Documents. 9. Title and Risk of Loss. Title to and risk of loss in the Goods shall remain with Vendor until the City's possession and acceptance of the Goods in accordance with these Terms and Conditions. 10. Clear Title. Vendor shall deliver the Goods to the City with clear title and free of all liens, claims, or encumbrances of any kind. 11. Non -Exclusive Agreement. These Terns and Conditions shall impose no obligation on the City to utilize Vendor for the purchase of all goods of this type which may be needed during the Term. This is not an exclusive agreement. The City specifically reserves the right to concurrently contract with other companies for similar goods if it deems such action to be in the City's best interest. 12. Modifications. A. There shall be no increase in the Unit Prices or the Agreed Amount as a result of the mismanagement, improper act, or other failure of Vendor or its employees, agents or subcontractors to properly perform their obligations under these Terms and Conditions. B. Notwithstanding anything to the contrary contained in these Terms and Conditions, there shall be no increase in the Unit Prices or the Agreed Amount except pursuant to a writing duly executed by both Parties. C. The City may make additions, deletions or modifications to any Purchase Order at any time upon mutual agreement of the Parties; provided, however, the City may modify the Goods ordered under a Purchase Order without Vendor's consent at any time before Vendor sends such Goods out for delivery. 13. Notices. Unless and to the extent otherwise provided in these Terms and Conditions, all notices, demands, requests for approvals and other communications which are required to be given by either party to the other shall be in writing and shall be deemed given and delivered on the date delivered in person, upon the expiration of five (5) business days following the date mailed by registered or certified mail, postage prepaid, return receipt requested, or upon the date delivered by overnight courier (signature required) to the address(es) for each party set forth in the BPA/CPA Form. 14. Indemnification. A. Vendor shall defend at its expense, pay on behalf of, hold harmless and indemnify the City, its officers, employees, agents, elected and appointed officials and volunteers (collectively, "Indemnified Parties") from and against any and all claims, demands, liens, liabilities, penalties, fines, fees, judgments, losses and damages (collectively, "Claims"), whether or not a lawsuit is filed, including, but not limited to Claims for damage to property or bodily or personal injuries, including death at any time resulting therefrom, sustained by any persons or entities; and costs, expenses and attorneys' and experts' fees at trial and on appeal, which Claims are alleged or claimed to have arisen out of or in connection with, in whole or in part, directly or indirectly: (i) The performance of the requirements set forth in these Terms and Conditions by Vendor, its employees, agents, representatives or subcontractors; or (ii) The failure of Vendor, its employees, agents, representatives or subcontractors to comply and conform with applicable Laws, as hereinafter defined; or (iii) Any negligent act or omission of Vendor, its employees, agents, representatives, or subcontractors, whether or not such negligence is claimed to be either solely that of Vendor, its employees, agents, representatives or subcontractors, or to be in conjunction with the claimed negligence of others, including that of any of the Indemnified Parties; (iv) Any reckless or intentional wrongful act or omission of Vendor, its employees, agents, City of St. Petersburg Page 8 of 13 Blanket Purchase Agreement 230020, 1 representatives, or subcontractors; (v) Any infringement or alleged infringement of the Goods, the City's use of the Goods (provided that Vendor was notified of the City's intended use or provided that such use is customary for goods of that type), or any materials contained in the Goods upon any copyright, trademark, patent, or trade secret right of any party. B. The provisions of this paragraph are independent of, and will not be limited by, any insurance obtained by Vendor, and shall survive the expiration or earlier termination of these Terms and Conditions with respect to any claims or liability arising in connection with any event occurring prior to such expiration or termination. 15. Successors and Assigns. These Terms and Conditions shall inure to the benefit of and be enforceable by and against the Parties, their heirs, personal representatives, successors, and assigns, including successors by way of reorganization. 16. Compliance with Laws. Vendor shall comply at all times with all federal, state, and local statutes, rules, regulations and ordinances, the federal and state constitutions, and the orders and decrees of lawful authorities having jurisdiction over the matter at issue (collectively, "Laws"), including but not limited to Florida Public Records laws. Vendor hereby makes all certifications required under Florida Statute section 287.135. Vendor shall also comply with all applicable City policies and procedures. 17. Non -appropriation. The obligations of the City as to any funding required pursuant to these Terms and Conditions shall be limited to an obligation in any given year to budget, appropriate and pay from legally available funds, after monies for essential City services have been budgeted and appropriated, sufficient monies for the funding that is required during that year. Notwithstanding the foregoing, the City shall not be prohibited from pledging any legally available non -ad valorem revenues for any obligations heretofore or hereafter incurred, which pledge shall be prior and superior to any obligation of the City pursuant to these Terms and Conditions. 18. Force Majeure. In the event that either party hereto shall be delayed or hindered in or prevented from the performance required hereunder by reason of strikes, lockouts, labor troubles, failure of power, riots, insurrection, war, acts of God, or other reason of like nature not the fault of the party delayed in performing work or doing acts ("Permitted Delay"), such party shall be excused for the period of time equivalent to the delay caused by such Permitted Delay. Notwithstanding the foregoing, any extension of time for a Permitted Delay shall be conditioned upon the party seeking an extension of time delivering written notice of such Permitted Delay to the other party within ten (10) business days after the event causing the Permitted Delay. 19. Due Authority. Each party to these Terms and Conditions that is not an individual represents and warrants to the other party that (i) it is a duly organized, qualified and existing entity authorized to do business under the laws of the State of Florida, and (ii) all appropriate authority exists so as to duly authorize the person executing these Terms and Conditions to so execute the same and fully bind the party on whose behalf he or she is executing. 20. Assignment. Vendor shall make no assignment of these Terms and Conditions without the prior written consent of the City. Any assignment of these Terms and Conditions contrary to this paragraph shall be void and shall confer no rights upon the assignee. 21. Subcontract. The hiring or use of outside services or subcontractors in connection with the performance of Vendor's obligations under these Terms and Conditions shall not be permitted without the prior written approval of the City, which approval may be withheld by the City in its sole and absolute discretion. Vendor shall promptly pay all subcontractors and suppliers. 22. Relationship of Parties. Nothing contained herein shall be deemed or construed by the Parties, or by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the Parties, it being understood and agreed that nothing contained herein, nor any acts of the Parties, shall be deemed to create any relationship between the Parties other than the relationship of independent contractors and principals of their own accounts. City of St. Petersburg Page 9 of 13 Blanket Purchase Agreement 230020, 1 23. No Construction against Preparer of Agreement. These Terms and Conditions have been prepared by the City and reviewed by Vendor and its professional advisors. The City, Vendor and Vendor's professional advisors believe that these Terms and Conditions express their agreement and that they should not be interpreted in favor of either the City or Vendor or against the City or Vendor merely because of the Parties' efforts in preparing them. 24. Use of Name. Subject to the requirements of Florida laws regarding public records, neither party shall use the other parry's name in conjunction with any endorsement, sponsorship, or advertisement without the written consent of the named party, except that Vendor may refer to the City in client lists. 25. Severability. Should any paragraph or portion of any paragraph of these Terms and Conditions be rendered void, invalid or unenforceable by any court of law for any reason, such determination shall not render void, invalid or unenforceable any other paragraph or portion of these Terms and Conditions. 26. Governing Law and Venue. The laws of the State of Florida shall govern these Terms and Conditions. Venue for any action brought in state court shall be in Pinellas County, St. Petersburg Division. Venue for any action brought in federal court shall be in the Middle District of Florida, Tampa Division, unless a division shall be created in St. Petersburg or Pinellas County, in which case the action shall be brought in that division. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the Parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction. 27. Third Party Beneficiary. Notwithstanding anything to the contrary contained in these Terms and Conditions, persons or entities not a party to these Terms and Conditions may not claim any benefit hereunder or as third party beneficiaries hereto. 28. Entire Agreement. These Terms and Conditions constitute the entire agreement between the Parties and supersede all prior and contemporaneous agreements, whether oral or written, between them. Any conflicting terms or conditions or any terms or conditions related to attorneys' fees, disclaimer of warranties, or indemnification set forth by Vendor in a quote, invoice, or any other communication or document are void and of no effect, even if such communication or document is attached to these Terms and Conditions, the BPA/CPA Form, or a Purchase Order. These Terms and Conditions may be modified only in a writing duly executed by both Parties. 29. No Waiver. No provision of these Terms and Conditions will be deemed waived by either party unless expressly waived in a writing signed by the waiving party. No waiver shall be implied by delay or any other act or omission of either party. No waiver by either party of any provision of these Terms and Conditions shall be deemed a waiver of such provision with respect to any subsequent matter relating to such provision, and the City's consent respecting any action by Vendor shall not constitute a waiver of the requirement for obtaining the City's consent respecting any subsequent action. 30. Headings. The paragraph headings are inserted herein for convenience and reference only, and in no way define, limit, or otherwise describe the scope or intent of any provisions hereof. 31. Survival. All obligations and rights of any party arising during or attributable to the period prior to expiration or earlier termination of this Agreement, including but not limited to Vendor's warranty obligations and those obligations and rights related to indemnification, shall survive such expiration or earlier termination. 32. Release Limits. In the event that any Purchase Order exceeds the individual purchase limit set forth in the BPA/CPA Form ("Release Limit"), Vendor shall immediately notify the City's Procurement & Supply Management Department by email at Louis.Moore@stpete.org that it has received a Purchase Order exceeding the Release Limit. If Vendor delivers Goods pursuant to a Purchase Order exceeding the Release Limits without first notifying the City's Procurement & Supply Management Department in accordance with this paragraph, the City reserves the right to cancel the Purchase Order and return any or all Goods ordered pursuant to that Purchase Order at no additional cost to the City. Vendor hereby acknowledges and accepts these Terms and Conditions by clicking "I accept" or similar affirming City of St. Petersburg Page 10 of 13 Blanket Purchase Agreement 230020, 1 language in the iSupplier Portal (if applicable) or by delivering any Goods to the City, whichever action comes first. 00299825 E-03. T&Cs solicited supply/equipment multi -year purchase City of St. Petersburg Page 11 of 13 Blanket Purchase Agreement 230020, 1 Price Escalation / De -Escalation Procedure Using ECI Index Pricing ("Unit Prices") shall remain firm for the first 12 months of the agreement term. After the first 12 months Vendor may request adjustments to the base pricing of the agreement. Requests for price adjustments shall in writing to the Procurement and Supply Management Director at least 30 days in advance. The request shall include written explanation and detailed supporting documentation as justification for the price change. Price adjustments shall not be effective prior to written approval by the City. Approval of price adjustments will establish a new base price from which subsequent adjustments will be calculated. City of St. Petersburg Page 12 of 13 Blanket Purchase Agreement 230020, 1 City of St. Petersburg Page 13 of 13 EXHIBIT B City of St. Petersburg st-porsiluri BLANKET PURCHASE AGREEMENT www.etpete-ere PURCHASE ORDER NO REVISION DATE SHIP TO: 230020 1 10-FEB-2020 Requesting Department Saint Petersburg, FL 33701 This Purchase Order No must appear on all invoices, packing lists United States and correspondence related to this order. VENDOR: VENDOR NO: 135753 Otto Environmental Systems North America Inc 12700 General Dr Charlotte, NC 28273 CSP BPA FORM FINANCE DEPARTMENT ACCOUNTS PAYABLE CITY OF ST PETERSBURG PO BOX 1257 Saint Petersburg, FL 33731 United States Description: Refuse Containers & Compactors, Commercial and Residential The work includes the supply and delivery of refuse Effective: 01-FEB-2020 End Date: 31-JAN-2023 Buyer/Phone: Angelique Cook / 727-551-3285 Email: angelique.cook@stpete.org Vendor/Phone: Sandra Abdow / (704) 583-5237 Ship Via: Best Way Freight Terms: Prepaid Terms: NET 30 FOB: FOB Destination Agreed Amount: $150,000.00 Supplier Notes: This BPA covers 450*601' Refuse containers, compactors, and related products. Effective February 1, 2020, throygJ1,4duary 31, 2023, with one, two-year renewal option. Incorporated into this BPA are your firm's bidsiipmittal, pricing page, and scope of service. l� r UNIT i 2 ; Container;.:commercial, front load, high density crosslink polyethylene, i EACH 1,195.00 includes Jid, 2 CY 3 Lgontalner, commercial, front load, high density crosslink polyethylene, I EACH j 1,090.05 ! 661udes lid, 3 CY i 4 Container, commercial, front load, high density crosslink polyethylene, EACH i 1,165.10 I includes lid, 4 CY. 5 Container, recycling, RFID, blue, large, 94-96 gallon EACH 44.01 To report fraudulent or unethical behavior, contact EthicsPoint, Inc. at 1-888-236-7053 or www.ethicsl2oint.com. For Page 1 of 13 grievance related to a specific solicitation, please adhere to the dispute and complaint instructions in the solicitation document. City of St. Petersburg Blanket Purchase Agreement 230020 LINE DESCRIPTION UOM UNIT PRICE 6 I Container, recycling, RFID, blue, medium, 64-66 gallon + EACH I i 38.22 7 Container, recycling, RFID, blue, medium, 64-66 gallon I i EACH I 38.22 8 I Container, recycling, RFID, blue, small, 32-35 gallon i EACH I i 30.15 State Sales Tax Exemption Number 85-8012740154C-1 Federal Employer ID Number 58-6000424 Procurement Director N To report fraudulent or unethical behavior, contact EthicsPoint, Inc. at 1-888-236-7053 or www.ethicspoint.com. For Page 2 of 13 grievance related to a specific solicitation, please adhere to the dispute and complaint instructions in the solicitation document. City of St. Petersburg Blanket Purchase Agreement 230020 Acceptance and Acknowledgement: Please log in to the iSupplier Portal and acknowledge acceptance of the terms and conditions of this agreement and all change notices. Once logged in, follow the steps outlined below to acknowledge this purchase order: 1. Click on 'Orders' tab 2. Select 'Purchase Orders to Acknowledge' from the View Menu 3. Select the specific purchase order 4. Click the 'Acknowledge' button 5. Select'Accept Entire Order y� 6. On next screen, click'Submit'`�' If login information is unknown or difficulties are experienced lease nta 9 p p Registration@stpete.org for assistance. . To report fraudulent or unethical behavior, contact EthicsPoint, Inc. at 1-888-236-7053 or www.ethicsooint.com. For Page 3 of 13 grievance related to a specific solicitation, please adhere to the dispute and complaint instructions in the solicitation document.