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Home My WebLink AboutC2011-163 - 4/26/2011 - ApprovedSERVICE AGREEMENT for HIGH- EFFICIENCY TOILET DISTRIBUTION PROGRAM THIS service agreement ( "Agreement ") is entered into by and between Caroma USA, Inc., a corporation, (the "Contractor "), and the City of Corpus Christi, a Texas home -rule municipal corporation (the "City ") effective for all purposes upon execution by the City Manager or his designee. WHEREAS Contractor has proposed to provide a HIGH - EFFICIENCY TOILET DISTRIBUTION PROGRAM in response to Request for Proposal (RFP) No. BI- 0084 -11. WHEREAS the City has determined Contractor to be the Best Value Supplier; NOW, THEREFORE, Contractor and City enter into this Agreement and agree as follows: 1. Services and Fees. Contractor will provide the services described in Exhibits A and B. Contractor will provide the following toilets: A. CAROMA SYDNEY LOW PROFILE - ROUND FRONT, 12" rough in, 609151AW Bowl with 622330W Tank, Wax Ring, Bolts and Seat at $99.61 per unit. B. CAROMA SYDNEY LOW PROFILE — ADA, 12" rough in, 60912OW Bowl with 622330W Tank, Wax Ring, Bolts and Seat at $120.71 per unit. C. All costs, both direct and indirect, of providing the services described in this Agreement, including the services described in Exhibits A and B incorporated herein by reference, are included in the price - per -unit stipulated in Section 1, A and B of this Agreement. D. For the purposes of transportation costs and legal ownership, all High - Efficency Toilets are F.O.B. Destination -- Point of transfer from Contractor to City. 2. Term. This Agreement shall commence on the date signed by the last signatory hereto and shall continue for a period of one year with an option to extend for up to two additional one -year periods subject to the approval of the Contractor and the City Manager or his designee ( "City Manager "). 3. Contract Administrator. The Contract Administrator designated by the City is responsible for approval of all phases of performance and operations under this Agreement including deductions for non - performance and authorizations for payment. All of Contractor's notices or communications regarding this Agreement must be directed to the Contract Administrator, who is the Director of Water. 4. Independent Contractor. Contractor will perform the services hereunder as an independent contractor and will furnish such services in its own manner and method, and under no circumstances or conditions may any agent, servant or employee of Contractor be considered as an employee of the City. 5. Insurance. Before activities can begin under this Agreement, Contractor must deliver a Certificate of Insurance, as proof of the required insurance coverages to the Contract Administrator. Additionally, the Certificate must state that the Contract Administrator will be given at least 30 days notice of cancellation, material change in the coverages, or intent not to renew any of the policies by first class mail. The City must be named as an Additional Insured on commercial general liability and automobile liability coverage. The City Attorney must be given rnniPC r% r alt policies within 15 days of the City Manager's or his designee's written 2011 -163 [uirements are incorporated by reference in Exhibit A and may be revised M2011 -097 anager upon 30 days written notice to Contractor. 04/26/11 1 y IrT Caroma USA INDZ� b. Assignment. No assignment of this Agreement or any right or interest therein by Contractor except to its parent or subsidiary is effective unless the City first gives its written consent to such assignment. The performance of this Agreement by Contractor is of the essence of this Agreement and the City's right to withhold consent to such assignment is within the sole discretion of the City on any ground whatsoever. 7. Fiscal Year. All parties recognize that the continuation of any contract after the close of any fiscal year of the City, which fiscal year ends on July 31 annually, is subject to appropriations and budget approval providing for such contract item as an expenditure in said budget. The City does not represent that said budget item will actually be adopted, since such determination is within the sole discretion of the City Council at the time of adoption of each budget. 8. INDEMNIFICATION. CAROMA USA, INC, ( INDEMNITOR) SHALL INDEMNIFY, DEFEND AND HOLD THE CITY OF CORPUS CHRISTI, AND ITS OFFICERS, EMPLOYEES, AND AGENTS (INDEMNITEES) HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY, LOSS, CLAIMS, DEMANDS, SUITS, AND CAUSES OF ACTION OF ANY NATURE ON ACCOUNT OF DEATH, PERSONAL INJURIES, PROPERTY LOSS OR DAMAGE TO PROPERTY (INCLUDING, WITHOUT LIMITING THE FOREGOING, WORKERS' COMPENSATION AND DEATH CLAIMS), OR ANY OTHER KIND OF DAMAGE, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, ATTORNEYS' FEES AND EXPERT WITNESS FEES, WHICH ARISE OR ARE CLAIMED TO ARISE OUT OF OR IN CONNECTION WITHTHIS AGREEMENT OR THE PERFORMANCE OF THIS AGREEMENT REGARDLESS OF WHETHER THE INJURIES, DEATH OR DAMAGES ARE CAUSED BY OR ARE CLAIMED TO BE CAUSED BY, THE CONCURRENT OR CONTRIBUTING NEGLIGENCE OF INDEMNITEES, BUT NOT BY THE SOLE NEGLIGENCE OF INDENNITEES UNMIXED WITH THE FA UL T OF ANY OTHER PERSON OR GROUP, INDEMNITOR SPECIFICALL Y AGREES TO INDEMNIFY INDEMNITEES FROM THE NEGLIGENCE OF ITS EMPLOYEES UNLESS NEGLIGENCE IS SOLE NEGLIGENCE OF INDEMNITEES INDEMNITOR MUST, AT ITS OWN EXPENSE, INVESTIGATE ALL CLAIMS, ATTEND TO THEIR SETTLEMENT OR OTHER DISPOSITION, DEFEND INDEMNITEES IN ALL ACTIONS BASED ON THOSE CLAIMS WITH COUNSEL SATISFACTORY TO INDEMNI TEES, AND PAYALL ATTORNEYS' FEES, COSTS AND EXPENSES OF EVER YKIND AND CHARACTER WHATSOEVER RESULTING FROM THE CLAIMSS, 9. Waiver. No waiver of any breach of any term or condition of this Agreement, or Contractor's proposal submitted in response to RFP No. BI- 0084 -11 waives any subsequent breach of the same. 10. Compliance with Laws. This Agreement is subject to all Federal laws and laws of the State of Texas. All duties of the parties will be performed in the City of Corpus Christi, Texas and or on property owned/or leased by the City of Corpus Christi, Texas. The applicable law for any legal disputes arising out of this Agreement is the law of Texas and such form and venue for such disputes is the appropriate district, county, or justice court in and for Nueces County, Texas. 11. Subcontractors. Contractor may not use subcontractors in connection with the work performed under this Agreement. 12. Amendments. This Agreement may be amended only by written agreement signed by duly authorized representatives of the parties hereto. 13. Termination. The City Manager or his designee may terminate this Agreement for Contractor's failure to perform the services specified in RFP BI- 0084 -11 or Contractor's failure to keep all insurance policies in force for the entire term of this Agreement. The Contract Administrator must give Contractor written notice of same and provide Contractor a reasonable opportunity to cure. If the Contractor has not cured within the cure period, the City Manager or his designee may terminate this Agreement immediately thereafter. Alternatively, City may terminate this Agreement, with or without cause, upon 20 days written notice to Contractor. However, City may terminate this Agreement on 24 -hours written notice to Contractor for failure to pay or provide proof of payment of taxes as set out herein. 14. Taxes. Contractor covenants to pay payroll taxes, Medicare taxes, FICA taxes, unemployment taxes, and all other related taxes according to Circular E Employer's Tax Guide, Publication 15, as it may be amended. Contractor must provide proof of payment of these taxes within 30 days after City Manager's written request therefor. Failure to pay or provide proof of payment is grounds for the City Manager to immediately terminate this Agreement. 15. Drug Policy. Contractor must adopt a Drug Free Workplace and drug testing policy that substantially conforms to the City's policy, which is a Zero Tolerance policy that eliminates drugs in the workplace. 16. Notice. Notice may be given by facsimile, hand delivery, or certified mail, postage prepaid, and is deemed received on the day faxed or hand delivered or on the third day after deposit if sent certified mail. Notice shall be sent as follows: IF TO CITY: City of Corpus Christi Attention: Director of Waste Water P.O. Box 9277 Corpus Christi, Texas 78469 -9277 Fax No.: (361) 826 -4382 IF TO CONTRACTOR: Contractor Name: Caroma USA, Inc. Contact Person: Eddie Wilcut; National Conservation Manager _ Address: 4902 Las Scala Street City, State, Zip: San Antonio, TX 78233 Fax No.: 210 -590 -2625 SIGNED this 12th day of April , 2011. CONTRACTOR: Name: Eddie Wilcut Title: National Conservation Manager, CITY TI Michael 13&Tera Assistant Director of Financial Services 1 092 l - a `7 AuT1,0RjzEQ USA NY CVUMCIL ., o... U i SECRETARY Date APPROVED AS TO FORM THIS I!Z DAY OF _A x etl , 2011 Carlos Vald , C TTORNEY BY: B fan aez, Assistant City Attorney Incorporated by reference: Exhibit A: RFP No. BI- 0084 -11 Exhibit B: Proposer's Proposal, as clarified