Agreement

LINKING AGREEMENT
BETWEEN
THE CITY OF GLENDALE, ARIZONA
AND
DURAMAX HOLDINGS LLC

This Linking Agreement (“Agreement”) is entered into as of this day of , 2023, between the
City of Glendale, an Arizona municipal corporation (“City”), and DURAMAX HOLDINGS LLC, an Ohio
limited liablity company, dba Otto Environmental Systems, authorized to do business in Arizona
(“Contractor”), collectively, the “Parties.”

RECITALS

A. On March 6, 2023, under S.A.V.E Cooperative Purchasing Agreement, the City of Mesa entered into
a contract with Contractor to purchase the goods and services described in the City of Mesa
Agreement 2023125, Residential Refuse and Recycling Containers (“Cooperative Purchasing
Agreement”), which is attached hereto as Exhibit A. The Cooperative Purchasing Agreement
permits its cooperative use by other governmental agencies including the City.

B. Section 2-149 of the City’s Procurement Code permits the Materials Manager to procure goods and
services by participating with other governmental units in cooperative purchasing agreements when
the best interests of the City would be served.

Cc. Section 2-149 also provides that the Materials Manager may enter into such cooperative agreements
without meeting the formal or informal solicitation and bid requirements of Glendale City Code
Sections 2-145 and 2-146.

D. The City desires to contract with Contractor for supplies or services identical, or nearly identical, to
the supplies or services Contractor is providing other units of government under the Cooperative
Purchasing Agreement. Contractor consents to the City’s utilization of the Cooperative Purchasing
Agreement as the basis of this Agreement, and Contractor desires to enter into this Agreement to
provide the supplies and services set forth in this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated by reference, and
the covenants and promises contained in this Linking Agreement, the patties agree as follows:

1. Term of Agreement.

A. As provided in the Cooperative Agreement, purchases can be made by governmental entities
from the date of award, which was April 1, 2023, until the date the contract terminates on
March 31, 2026, unless the term is extended by mutual agreement of the parties to the
Cooperative Agreement. The Cooperative Agreement, however, may not be extended
beyond March 31, 2028. The initial period of this Agreement is the period from the Effective
Date of this Agreement until March 31, 2026.

B. Consistent with the Cooperative Agreement, the City may extend the term of this Agreement
for a maximum of two years and on a month-to-month basis to complete the Procurement
Process, if the Cooperative Agreement is likewise extended. Extension(s) shall occur if the

1
05/10/2023

City gives the Contractor notice that it is exercising its option to extend this Agreement 30
days prior to the anniversary of the Effective Date. Glendale extensions are not automatic
and shall only occur if the City affirmatively exercises its right to extend this Agreement.

Scope of Work; Terms, Conditions, and Specifications.

A. Contractor shall provide City the supplies and/or services identified in the Scope of Work
attached as Exhibit B.

B. Contractor agrees to comply with all the terms, conditions and specifications of the
Cooperative Purchasing Agreement. Such terms, conditions and specifications are
specifically incorporated into and are an enforceable part of this Agreement.

Compensation.

A. City shall pay Contractor compensation at the same rate and on the same schedule as
provided in the Cooperative Purchasing Agreement, which is attached hereto as Exhibit C.

B. The total purchase price for the supplies and/or services purchased under this Agreement
shall not exceed Two Million, Five Hundred Forty-Eight Thousand, Two Hundred dollars
($2,548,200) for the entire term of the Agreement (initial term plus any extensions).

Cancellation. This Agreement may be cancelled pursuant to A.R.S. § 38-511.

Non-discrimination. Contractor must not discriminate against any employee or applicant for
employment on the basis of race, color, religion, sex, national origin, age, marital status, sexual
orientation, gendet identity or expression, genetic characteristics, familial status, U.S. military veteran
status or any disability. Contractor will require any Sub-contractor to be bound to the same
requirements as stated within this section. Contractor, and on behalf of any subcontractors, warrants
compliance with this section.

Insurance Certificate. A certificate of insurance applying to this Agreement must be provided to the
City prior to the Effective Date.

E-verify. Contractor complies with A.R.S. § 23-214 and agrees to comply with the requirements of
ARS. § 41-4401.

No Boycott of Israel. To the extent A-R.S § 35-393 through § 35-393.03 are applicable, the parties
hereby certify that they are not currently engaged in, and agree for the duration of the Agreement to
not engage in, a boycott of goods or services from Israel, as that term is defined in A.R.S § 35-393.

Uyghur Forced Labor Prevention Act (UFLPA). Contractor certifies that it does not currently, and
during the term of this Agreement, will not use:
the forced labor of ethnic Uyghurs in the People’s Republic of China;

b. any goods or services produced by the forced labor of ethnic Uyghurs in the People’s
Republic of China; and

05/10/2023

c any contractors, subcontractors or suppliers that use the forced labor ot any goods
ot services produced by the forced labor of ethnic Uyghurs in the People’s Republic
of China.

10, Attestation of PCI Compliance. When applicable, the Contractor will provide the City annually with
a Payment Catd Industry Data Security Standard (PCI DSS) attestation of compliance certificate
signed by an officer of Contractor with oversight responsibility.

11. Notices. Any notices that must be provided under this Agreement shall be sent to the Parties’
respective authorized representatives at the address listed below:

City of Glendale

c/o Johnny Morales
Field Operations

6210 W. Myrtle Avenue
Glendale AZ 85301

DURAMAX HOLDINGS LLC
c/o Shawn Whiteman

12700 General Drive

Charlotte, NC 28273

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year set
forth above.

“City” “Contractor”
City of Glendale, an Arizona DURAMAX HOLDINGS LLC,
municipal corporation an Ohio limited liability company
£2
By: By: Cian
Kevin R. Phelps Name: Shawn Whiteman
City Manager Title: Vice President
ATTEST:
Julie K. Bower (SEAL)
City Clerk
APPROVED AS TO FORM:

Michael D. Bailey
City Attorney

05/10/2023

LINKING AGREEMENT
BETWEEN
THE CITY OF GLENDALE, ARIZONA
AND
DURAMAX HOLDINGS LLC

EXHIBIT A
City of Mesa Agreement 2023125, Residential Refuse and Recycling Containers

meSa:aZ

AGREEMENT PURSUANT TO SOLICITATION

CITY OF MESA AGREEMENT 2023125
RESIDENTIAL REFUSE AND RECYCING CONTAINERS

CITY OF MESA, Arizona (“City”)

Department Name City of Mesa — Purchasing Division
Mailing Address P.O. Box 1466
Mesa, AZ 85211-1466
Delivery Address 20 East Main St, Suite 450
; - Mesa, AZ 85201
Attention Evan Karl, NIGP-CPP, CPPB
Procurement Officer! =
E-Mail _ _... .... Evan. Karl@MesaAZ gov
Telephone _ _ (480) 644-2356

With a copy to: City of Mesa — Solid Waste Operations
Attn: Justin Stadt, SR Fiscal Analyst
P.O. Box 1466
Mesa, AZ 85211-1466
Justin. Stadt@MesaAZ.qov

AND
DURAMAX HOLDINGS, LLC DBA OTTO ENVIRONMENTAL SYSTEMS, (“Contractor”)
| Mailing Address _ 12700 General Drive
. Charlotte, NC 28273
Remit to Address | P.O.Box72605 =. .
Cleveland, OH 44192-0002
Attention Brandon Budlong
E-Mail | Brandon.budlong@otto-usa.com
Telephone .. 104-500-4546
| Facsimile 704-588-5250.
Page 1 of 62 Contract #2023125

Otto Environmental Systems.

CITY OF MESA AGREEMENT PURSUANT TO SOLICITATION

This agreement pursuant to Solicitation (‘Agreement’) is entered into this 6" day of March, 2023, by and
between the City of Mesa, Arizona, an Arizona municipal corporation (“City”), and Duramax Holdings, LLC
dba Otto Environmental Systems, a(n) Ohio company (“Contractor”). The City and Contractor are each a
“Party” to the Agreement or together are “Parties” to the Agreement.

RECITALS

A. The City issued Solicitation number 2023125 (“Solicitation”) for RESIDENTIAL REFUSE AND
RECYCLING CONTAINERS, to which Contractor provided a response (“Response”); and

B. The City Selected Contractor's Response as being in the best interest of the City and wishes to
engage Contractor in providing the services/materials described in the Solicitation and Response.

In consideration of the reciprocal promises contained in the Agreement, and for other valuable and good
consideration, which the Parties acknowledge the receipt and sufficiency of, the Parties agree to the
following Terms & Conditions.

TERMS & CONDITIONS

1. Term. This Agreement is for a term beginning on April 1, 2023 and ending on March 31, 2026.
The use of the word “Term” in the Agreement includes the aforementioned period as well as any
applicable extensions or renewals in accordance with this Section 1.

1.1 Renewals. On the mutual written agreement of the Parties, the Term may be renewed up
to a maximum of two (2) years. Any renewal(s) will be a continuation of the same terms
and conditions as in effect immediately before the expiration of the then-current term.

1.2 Extension for Procurement Processes. Upon the expiration of the Term of this
Agreement, including any renewals permitted herein, at the City’s sole discretion this
Agreement may be extended on a month-to-month basis for a maximum of six (6) months
to allow for the City’s procurement processes in the selection of a vendor to provide the
services/materials provided under this Agreement. The City will notify the Contractor in
writing of its intent to extend the Agreement at least thirty (30) calendar days before the
expiration of the Term. Any extension under this Subsection 1.2 will be a continuation of
the same terms and conditions as in effect immediately before the expiration of the then-
current term.

2. Scope of Work. The Contractor will provide the necessary staff, services, and associated
resources to provide the City with the services, materials, and obligations attached to this
Agreement as Exhibit A (“Scope of Work”) Contractor will be responsible for all costs and expenses
incurred by Contractor that are incident to the performance of the Scope of Work unless otherwise
stated in Exhibit A. Contractor will supply all equipment and instrumentalities necessary to perform
the Scope of Work. If set forth in Exhibit A, the City will provide Contractor's personnel with
adequate workspace and such other related facilities as may be required by Contractor to carry out
the Scope of Work.

The Agreement is based on the Solicitation and Response which are hereby incorporated by
reference into the Agreement as if written out and included herein. In addition to the requirements
specifically set forth in the Scope of Work, the Parties acknowledge and agree that the Contractor
shall perform in accordance with all terms, conditions, specifications, and other requirements set
forth within the Solicitation and Response unless modified herein.

3. Orders. Orders are placed with the Contractor by either a: (i) Purchase Order when for a one-time
purchase; (ii) Notice to Proceed, or (iii) Delivery Order off of a Master Agreement for Requirement

Page 2 of 62 Contract #2023125
Otto Environmental Systems

Contract where multiple as-needed orders will be placed with the Contractor. The City may use
the Internet to communicate with Contractor and to place orders as permitted under this Agreement

4. Document Order of Precedence. In the event of any inconsistency between the terms of the

body of the Agreement, the Exhibits, the Solicitation, and Response, the language of the
documents will control in the following order.

a. Agreement

b. Exhibits
1. Mesa Standard Terms & Conditions
2. Scope of Work
3. Other Exhibits not listed above

c. Solicitation including any addenda

d. Contractor Response

5. Payment.

5.1

5.2

5.3

5.4

Page 3 of 62

General. Subject to the provisions of the Agreement, the City will pay Contractor the
sum(s) described in Exhibit B (“Pricing”) in consideration of Contractor's performance of
the Scope of Work during the Term.

Prices. All pricing shall be firm for the Term and all extensions or renewals of the Term
except where otherwise provided in this Agreement and include all costs of the Contractor
providing the materials/service including transportation, insurance, and warranty costs. No
fuel surcharges will be accepted unless allowed in this Agreement. The City shall not be
invoiced at prices higher than those stated in the Agreement.

The Contractor further agrees that any reductions in the price of the materials or services
covered by this Agreement will apply to the undelivered balance. The Contractor shall
promptly notify the City of such price reductions.

No price modifications will be accepted without proper request by the Contractor and
response by the City’s Purchasing Division.

Price Adjustment. Any requests for reasonable price adjustments must be submitted in
accordance with this Section 5.3. Requests for adjustment in the cost of labor and/or
materials must be supported by appropriate documentation. There is no guarantee the
City will accept a price adjustment therefore Contractor should be prepared for the Pricing
to be firm over the Term of the Agreement. The City is only willing to entertain price
adjustments based on an increase to Contractor’s actual expenses or other reasonable
adjustments in providing the services/materials under the Agreement. If the City agrees to
the adjusted price terms, the City shall issue written approval of the change.

During the sixty (60) day period before each annual anniversary date of the Agreement,
the Contractor may submit a written request to the City to allow an increase to the prices
in an amount not to exceed the twelve (12) month change in the Producer Price Index for
Plastics Material and Resin Manufacturing 325211325211,” Not Seasonally Adjusted
as published by the U.S. Department of Labor, Bureau of Labor Statistics
(http://www.bls.gov/ppi/home.htm). The City shall review the request for adjustment and
respond in writing; such response and approval shall not be unreasonably withheld.

Renewal and Extension Pricing. Any extension of the Agreement will be at the same
pricing as the initial Term. If the Agreement is renewed in accordance with Section 1,
pricing may be adjusted for amounts other than inflation that represent actual costs to the
Contractor based on the mutual agreement of the parties. The Contractor may submit a
request for a price adjustment along with appropriate supporting documentation

Contract #2023125
Otto Environmental Systems

5.5

5.6

5.7

6.1

6.2

6.3

Page 4 of 62

demonstrating the cost to the Contractor. Renewal prices shall be firm for the term of the
renewal period and may be adjusted thereafter as outlined in the previous section. There
is no guarantee the City will accept a price adjustment.

Invoices. Payment will be made to Contractor following the City’s receipt of a properly
completed invoice. No terms set forth in any invoice, purchase order, or similar document
issued by Contractor will be deemed accepted by the City; the terms of the contractual
relationship between the Parties are as set forth in this Agreement. Any issues regarding
billing or invoicing must be directed to the City Department/Division requesting the service
or material from the Contractor. A properly completed invoice should contain, at a
minimum, all of the following:

Contractor name, address, and contact information;

City billing information;

City contract number as listed on the first page of the Agreement;
Invoice number and date;

Payment terms;

Date of service or delivery;

Description of materials or services provided;

If materials provided, the quantity delivered and pricing of each unit;
Applicable Taxes; and

Total amount due.

“rsa r*~ao7D

Payment of Funds. Contractor acknowledges the City may, at its option and where
available use a Credit Card/Procurement Card to make payment for orders under the
Agreement with no additional charge/fee. Otherwise, payment will be through a traditional
method of a check.

Disallowed Costs, Overpayment. If at any time the City determines that a cost for which
payment was made to Contractor is a disallowed cost, such as an overpayment or a charge
for materials/service not in accordance with the Agreement, the City will notify Contractor
in writing of the disallowance; such notice will state the means of correction which may be,
but is not limited to, adjustment of any future claim/invoice submitted by Contractor in the
amount of the disallowance, or to require repayment of the disallowed amount by
Contractor. Contractor will be provided with the opportunity to respond to the notice.

Insurance.

Contractor must obtain and maintain at its expense throughout the term of Contractor's
agreement, at a minimum, the types and amounts of insurance set forth in this Section 6
from insurance companies authorized to do business in the State of Arizona: the insurance
must cover the materials/service to be provided by Contractor under the Agreement. For
any insurance required under the Agreement, Contractor will name the City of Mesa, its
agents, representatives, officials, volunteers, officers, elected officials, and employees as
additional insured, as evidenced by providing either an additional insured endorsement or
proper insurance policy excerpts.

Nothing in this Section 6 limits Contractor's responsibility to the City. The insurance
requirements herein are minimum requirements for the Agreement and in no way limit any
indemnity promise(s) contained in the Agreement.

The City does not warrant the minimum limits contained herein are sufficient to protect
Contractor and subcontractor(s) from liabilities that might arise out of performance under
the Agreement by Contractor, its agents, representatives, employees, or subcontractor(s).
Contractor is encouraged to purchase additional insurance as Contractor determines may
be necessary.

Contract #2023125
Otto Environmental Systems

6.4 Each insurance policy required under the Agreement must be in effect at or before the
execution of the Agreement and remain in effect for the term of the Agreement.

6.5 Before the execution of the Agreement, Contractor will provide the City with a Certificate
of insurance (using an appropriate “ACORD” or equivalent certificate) signed by the issuer
with applicable endorsements. The City reserves the right to request additional copies of
any or all of the policies, endorsements, or notices relating thereto required under the
Agreement.

6.6 When the City requires a Certificate of Insurance to be furnished, Contractor's insurance
is primary of all other sources available. When the City is a certificate holder and/or an
additional insured, Contractor agrees no policy will expire, be canceled, or be materially
changed to affect the coverage available without advance written notice to the City.

6.7 The policies required by the Agreement must contain a waiver of transfer rights of recovery
(waiver of subrogation) against the City, its agents, representatives, officials, volunteers,
officers, elected officials, and employees for any claims arising out of the work of
Contractor.

6.8 All insurance certificates and applicable endorsements are subject to review and approval
by the City's Risk Management Division.

6.9 Types and Amounts of Insurance. Contractor must obtain and retain throughout the
term of the Agreement, at a minimum, the following:

6.9.1 Worker's compensation insurance in accordance with the provisions of Arizona
law. If Contractor operates with no employees, Contractor must provide the City
with written proof Contractor has no employees. If employees are hired during
the course of this Agreement, Contractor must procure worker's compensations
in accordance with Arizona law.

6.9.2 The Contractor shall maintain at all times during the term of this contract, a
minimum amount of $3 million per occurrence/$5 million aggregate Commercial
General Liability insurance, including Products and Contractual Liability. For
General Liability insurance, the City of Mesa, their agents, officials, volunteers,
officers, elected officials, or employees shall be named as additional insured, as
evidenced by providing an additional insured endorsement.

6.9.3 Automobile liability, bodily injury, and property damage with a limit of $1 million
per occurrence including owned, hired, and non-owned autos.

7. Requirements Contract. Contractor acknowledges and agrees the Agreement is a requirements
contract; the Agreement does not guarantee any purchases will be made (minimum or maximum).
Orders will only be placed when the City identifies a need and issues a purchase order or a written
notice to proceed. The City reserves the right to cancel purchase orders or a notice to proceed
within a reasonable period of time of issuance; any such cancellation will be in writing. Should a
purchase order or notice to proceed be canceled, the City agrees to reimburse Contractor for any
actual and documented costs incurred by Contractor. The City will not reimburse Contractor for
any avoidable costs incurred after the receipt of cancellation including, but not limited to, lost profits,
shipment of product, or performance of services.

8. Notices. All notices to be given pursuant to the Agreement will be delivered to the Contractor as
listed on Page 1 of this Agreement. Notice will be delivered pursuant to the requirements set forth
in the Mesa Standard Terms and Conditions that is attached to the Agreement as Exhibit D.

Page 5 of 62 Contract #2023125
Otto Environmental Systems

10.

11.

12.

13.

14.

15.

Representations of Contractor. To the best of Contractor’s knowledge, Contractor agrees that:

a. Contractor has no obligations, legal or otherwise, inconsistent with the terms of the Agreement
or with Contractor's undertaking of the relationship with the City;

b. Performance of the services called for by the Agreement do not and will not violate any
applicable law, rule, regulation, or any proprietary or other right of any third party;

c. Contractor will not use in the performance of Contractor's responsibilities under the Agreement
any proprietary information or trade secret of a former employer of its employees (other than
City, if applicable); and

d. Contractor has not entered into and will not enter into any agreement, whether oral or written,
in conflict with the Agreement.

Mesa Standard Terms and Conditions. Exhibit C to the Agreement is the Mesa Standard Terms
and Conditions as modified by the Parties, which are incorporated by reference into the Agreement
as though fully set forth herein. In the event of any inconsistency between the terms of the
Agreement and the Mesa Standard Terms and Conditions, the language of the Agreement will
control. The Parties or a Party are referred to as a “party” or “parties” in the Mesa Standard Terms
and Conditions. The Term is referred to as the “term” in the Mesa Standard Terms and Conditions.

Counterparts and Facsimile or Electronic Signatures. This Agreement may be executed in two
(2) or more counterparts, each of which will be deemed an original and all of which, taken together,
will constitute one agreement. A facsimile or other electronically delivered signature to the
Agreement will be deemed an original and binding upon the Party against whom enforcement is
sought.

Incorporation of Recitals and Exhibits. All Recitals and Exhibits to the Agreement are hereby
incorporated by reference into the Agreement as if written out and included herein. In the event of
any inconsistency between the terms of the body of the Agreement and the Exhibits, the language
of the Agreement will control.

Exhibits to this Agreement are the following:

(A) Scope of Work

(B) Pricing

(C) Mesa Standard Terms and Conditions

(D) Technical Specifications & Warranty Information

(E) Easibuy, LLC Reverse Auction Procedures and Terms & Conditions

ooo00

Attorneys’ Fees. The prevailing Party in any litigation arising out of the Agreement will be entitled
to the recovery of its reasonable attorney’s fees, court costs, and other litigation-related costs and
fees from the other Party.

Additional Acts. The Parties agree to execute promptly such other documents and to perform
such other acts as may be reasonably necessary to carry out the purpose and intent of the
Agreement.

Headings. The headings of the Agreement are for reference only and will not limit or define the
meaning of any provision of the Agreement.

Page 6 of 62 Contract #2023125

Otto Environmental Systems

RESPONDENT CERTIFICATION

By submitting the Response and signing this Certification, the Respondent understands and
certifies to all of the following:

a) The information provided in Respondent's Response it true and accurate to the best of
Respondent's knowledge.

b) Respondent is under no legal prohibition that would prevent Respondent from contracting with the
City of Mesa.

c) Respondent has read and understands the Solicitation packet as a whole (including attachments,
exhibits, and referenced documents) and: (i) can attest that Respondent is in compliance with the
requirements of the Solicitation packet; and (ii) is capable of fully carrying out the requirements of
the Solicitation as set forth in Respondent's Response.

d) To Respondent's knowledge, Respondent and Respondent’s employees have no known,
undisclosed conflicts of interest as defined by applicable law or City of Mesa Procurement Rules.
If Respondent or Respondent employees have a known conflict of interest, Respondent has
disclosed the conflict in its Response.

e) Respondent did not engage in any anti-competitive practices related to its Response or the
Solicitation. The prices offered by Respondent were independently developed without consultation
or collusion with any other Respondents or potential Respondents.

f) No gifts, payments or other consideration were made to any City employee, officer, elected official,
agent, or consultant who has or may have a role in the procurement process for the
services/materials covered by the Solicitation.

g) Respondent grants the City of Mesa permission to copy all parts of its Response including, without
limitation, any documents and materials copyrighted by Respondent: (i) for the City's use in
evaluating the Response; and (ji) to be disclosed in response to a public records request under
Arizona’s public records law (A.R.S. § 39-121 et. seq.) or other applicable law, subpoena, or other
judicial process provided such disclosure is in accordance with City of Mesa Procurement Rule
6.13.

h) If a contract is awarded to Respondent as a result of the Response submitted to the Solicitation
Respondent will:

i. Provide the materials or services specified in the Response in compliance with all
applicable federal, state, and local statutes, rules and policies;
ii. Honor all elements of the Response submitted by Respondent to the City including, but not
limited to, the price and the materials/services to be provided; and
iii. Enter into an agreement with the City based on the terms and conditions of the Solicitation
and the Response, subject to any negotiated exceptions and terms.

i) Respondent is current in all obligations due to the City including any amounts owed the City and
any licenses/permits required for the general lawful conduct of business. Respondent shall acquire
all licenses/permits necessary to lawfully conduct business specific to the Solicitation prior to the
execution of a contract with the City pertaining to the Solicitation.

j) The signatory of this Certification is an officer or duly authorized agent of Respondent with full
power and authority to submit binding offers for the goods/services specified herein. Respondent
intends by the submission of this Certification to be bound by the terms of the Certification,
Solicitation, and Response, subject to any negotiated terms/exceptions.

ACCEPTED AND AGREED
Seo Ee. i

Company Name: DBA:

RESPONDENT:
LC

Signature:

Printed Name: _ Robert Cheney

Title: __ Chief Commercial Officer

Date: 12 L122

7/1/2020 Required Response Forms — Page 5 of 5 2023125
Page 7 of 62 Contract #2023125
Otto Environmental Systems

City Acceptance of Offer
The below document will be executed when Agreement is finalized and awarded.

ACCEPTANCE OF OFFER:

The offer is hereby accepted. The Contractor is now bound to sell the materials or services specified in the
Contract, including all terms and conditions, specifications, addenda, etc. This contract shall henceforth be
referred to as Contract Number 2023125.

Edward Quedens

cn=Edward Quedens,

o=City of Mesa, 2023.

Awarded this _ .
u=Bosiness Services —
hore. — Director / City of Mesa,

email=ed.quedens@mesaa
Zgov, c=US
2023.03.07 09:13:59 -07'00'
Edward Quedens, CPPO, C.P.M.
As Business Services Director

REVIEWED BY:

By Caan Karl 3/6/2023
Evan Karl, NIGP-CPP, CPPB
Procurement Officer |

Page 8 of 62 Contract #2023125
Otto Environmental Systems

EXHIBIT A
SCOPE OF WORK

1. SCOPE OF WORK: Contractor shall furnish and provide Residential Refuse and Recycling
Containers to the Municipal Parties listed both above and in Estimated Annual Container Quantity
and Delivery Locations (Exhibit 2). Each Municipal Party seeks firm(s) that can supply the specified
containers for each agency as per each of the agency’s specifications.

2. TESTING PROCEDURES: The City of Mesa will perform tests for those containers which are being
considered for award. The containers of the lowest responsive and responsible bid will be tested
first. Should the container fail the test, the container from the next lowest responsive and
responsible Contractor will be tested. Sample containers must pass all tests to be eligible for an
award,

a. PERFORMANCE/STABILITY: The container shall be stable and self-balancing when in
the upright position when either loaded or empty. The containers will be tested for stability
by lifting each into the hopper area of an automated side loader and then setting it down.
Containers will be tested in the following positions: facing forward toward the truck,
turning 45° to the front, turning 45° to the rear, and facing backward. There will be ten (10)
lifts for each position with the exception of the barrel backward position, which will be
done five (5) times; for a total of thirty-five (35) tests. The container must not slip through
the grippers into the hopper or slip to the wheels. Stability is defined as the state of
remaining upright and immobile after the container is set in place. To pass the stability
test, the barrel must remain upright after at least thirty-three (33) of the thirty-five (35) lifts.
If the barrel is out of position in the arms while being set down, no attempt will be made by
the operator to keep the barrel balanced and upright.

b. DROP TEST: Containers shall be drop tested to examine the container’s ability to
withstand being dropped by a collection vehicle when loaded to its maximum
recommended capacity of + /- 200 Ibs. Test containers will be filled with sandbags (+/- 200
Ibs.), raised to a height of six (6) to seven (7) feet, and dropped. Failure is defined as
damage occurring to the container that would prevent normal use or failure to meet the
conditions defined in the specifications. The City retains the exclusive right to determine
the normal use of a container.

c. RESIN WEIGHT TEST:

i. The container and lid of the 32/35-gallon test container shall weigh a minimum of
seventeen (17) pounds without hardware and wheels and have a nominal wall
thickness of .170 inches. Measurements will be verified by City staff. If
discrepancies in measurements are found, an independent service will be utilized
with certified scales/measuring devices. All measurements are made without
hardware, wheels, or axle. Failure to meet the weight or wall thickness requirement
for the container shall be grounds for disqualification. Bidders may submit an
exception to the nominal wall thickness of .170 inch and the City will review the
submittals accordingly.

ii. The container and lid of each 60/68-gallon test container shall weigh a minimum
of twenty-five (25) pounds without hardware and wheels and have a minimum
of .170-inch uniform wall thickness. Measurements will be verified by City staff.
If discrepancies in measurements are found, an independent service will be
utilized with certified scales/measuring devices. All measurements are made
without hardware, wheels or axle. Failure to meet the weight or wail thickness
requirement for the container shall be grounds for disqualification. Bidders
may submit an exception to the nominal wall thickness of .170 inches and the
City will review the submittals accordingly.

Page 9 of 62 Contract #2023125
Otto Environmental Systems

d.

ii. The container and lid of each 90/98-gallon test container shall weigh a minimum
of thirty-five (35) pounds without hardware and wheels and have a minimum of
.170-inch uniform wall thickness. Measurements will be verified by City staff. If
discrepancies in measurements are found, an independent service will be utilized
with certified scales/measuring devices. All measurements are made without
hardware, wheels or axle. Failure to meet the weight or wall thickness requirement
for the container shall be grounds for disqualification. Bidders may submit an
exception to the nominal wail thickness of .170 inches and the City will review the
submittals accordingly.

iv. The container and lid of each 160-gallon test container shall weigh a minimum of
seventy-five (75) pounds without hardware and wheels and have a minimum of
.200-inch uniform wall thickness. Measurements will be verified by City staff. If
discrepancies in measurements are found, an independent service will be utilized
with certified scales/measuring devices. All measurements are made without
hardware, wheels or axle. Failure to meet the weight or wail thickness requirement
for the container shall be grounds for disqualification.

v. The container and lid of each 300-gallon test container shall weigh a minimum of
eighty-five (85) pounds without hardware and wheels or have a minimum of .210-
inch uniform wall thickness. Measurements will be verified by City staff. If
discrepancies in measurements are found, an independent service will be utilized
with certified scales/measuring devices. All measurements are made without
hardware, wheels, or axle. Failure to meet the weight or wall thickness requirement
for the container may be subject to container disqualification. Each container shall
be capable of withstanding the compression force of the Automatic Loading
Equipment of four hundred (400) pounds.

WATERTIGHT: All test containers must remain watertight during and after a liquid
capacity check is completed. Failure to retain water shall be grounds for disqualification.

3. CONTAINER CAPACITY:

Page 10 of 62

a.

All 32/35-gallon containers shall hold a minimum of thirty-two (32) U.S. liquid gallons of
water in the barrel portion as determined by the following test: All containers will be filled
with water while using a flowmeter to ensure volume measurement. Failure to meet the
minimum requirements of thirty-two (32) gallons shall be grounds for disqualification. The
City may also reject containers that are oversized or in a form not conducive to proper
collection or use by customer. Capacity shall not exceed thirty-five (35) gallons.

All 40/48-gallon containers shall hold a minimum of forty (40) U.S. liquid gallons of water
in the barrel portion as determined by the following test: All containers will be filled with
water while using a flowmeter to ensure volume measurement. Failure to meet the
minimum requirements of forty (40) gallons shall be grounds for disqualification. The City
may also reject containers that are oversized or in a form not conducive to proper collection
or use by customer. Capacity shall not exceed forty-eight (48) gallons.

All 60/68-gallon containers shall hold a minimum of fifty-nine (59) U.S. liquid gallons of
water in the barrel portion as determined by the following test: All containers will be filled
with water while using a flowmeter to ensure volume measurement. Failure to meet the
minimum requirements of fifty-nine (59) gallons shall be grounds for disqualification. The
City may also reject containers that are oversized or in a form not conducive to proper
collection or use by customer. Capacity shall not exceed sixty-eight (68) gallons.

All 90/98-gallon containers shall hold a minimum of eighty-nine (89) U.S. liquid gallons of
water. All containers will be filled with water while using a flowmeter to ensure volume

Contract #2023125
Otto Environmental Systems

measurement. Failure to meet the minimum requirements of eighty-nine (89) gallons shall
be grounds for disqualification. The City may also reject containers that are oversized or in
a form not conducive to proper collection or use by customer. Capacity shall not exceed
ninety-eight (98) gallons.

e. All 160-gallon containers shall hold a minimum of one-hundred-sixty (160) U.S. liquid
gallons of water. All containers will be filled with water while using a flowmeter to ensure
volume measurement. Failure to meet the minimum requirements of one-hundred-sixty
(160) gallons shall be grounds for disqualification. The City may also reject containers that
are oversized or in a form not conducive to proper collection or use by customer. Capacity
shall not exceed one-hundred-sixty (160) gallons.

f. All 300-gallon containers shall hold a minimum of three hundred (300) U.S. liquid gallons
of water. All containers will be filled with water while using a flowmeter to ensure volume
measurement. Failure to meet the minimum requirements of three hundred (300) shall be
grounds for disqualification. The City may also reject containers that are oversized or ina
form not conducive to proper collection or use by customer. Capacity shall not exceed three
hundred twenty-five (325) gallons.

g. All test containers must remain watertight during and after the liquid capacity test is
completed. Failure to retain water shall be grounds for disqualification.

4. INVENTORY LEVELS: The Contractors inventory levels shall be sufficient to provide daily support
of each agency. Failure to supply item(s) within thirty days (30) of order placement may result in
ordering from an alternate supplier. Repeated incidents of late delivery shall be grounds for
termination of the contract.

Ly HAZARD COMMUNICATION REQUIREMENTS: The successful Contractor agrees to provide
Material Safety Data Sheets for all substances that come under the Federal Toxic and Hazardous
Substance - Hazard Communication Standard, (reference - Occupational Safety and Health
Standard, Subpart -2- Toxic and Hazardous Substances - Hazardous Communication Standard.
Section 1910 - 1200 Hazard Communication). MSDS copies will be provided separately and
simultaneously to each City, Town, and Schoo! District listed above.

6. LABELS: All labels are provided for informational purposes. Text and photographs may be
modified to reflect a change in phone number, website address, etc.

7. DELIVERY: Delivery shall be made to the location(s) contained herein no longer than thirty (30)
calendar days after receipt of an order.

Containers will be ordered as needed and shall be delivered and assembled within thirty (30)
calendar days after receipt of an order. Orders placed will be a minimum of a truckload
(approximately 500 barrels). Unit prices shall be based on full truckload quantity orders which
include all freight (Freight on Board destination, freight prepaid and allowed), insurance, warranty
costs, and any other applicable costs excluding taxes within the Phoenix Metropolitan Area.
Agencies ordering less than full truckload quantities or are located outside the Phoenix Metropolitan
Area may be subject to additional fees to be negotiated with the contractor. All containers will be
delivered, unloaded, assembled, and stacked as directed by the Municipal Parties or designated
representatives. All unit prices shall include assembly, bolts, plates, hardware, and other incidental
items necessary for delivery and ready-for-use product.

All containers will be delivered, unloaded, assembled, and stacked at the following addresses,
listed in the Estimated Annual Container Quantity and delivery Locations (Exhibit 2) or as directed
by the Municipal Parties or designated representative.

Page 11 of 62 Contract #2023125
Otto Environmental Systems

10.

11

12.

DELIVERY TICKETS / INVOICES: All delivery tickets and invoices must delineate the supplier's
name, address, date, and quantity of units delivered. The Municipal Party shall only authorize
payment for the actual quantity of containers delivered to each site.

DELIVERY METHOD: The Contractor will be responsible for delivery, unloading and
placing in designated area specified by the department representative.

BUYBACK OF MATERIAL: As barrels in our inventory are no longer covered under warranty or
are past their useful life, the material remains valuable and can be recycled (high-density
polyethylene HDPE only). The Municipal Parties would like the option of having the Contractor
purchase these barrels. The buyback of these barrels will be issued to the Municipal Parties in the
form of a credit toward purchasing new barrels. The Contractor will arrange to have the
containers stacked, picked up, and removed from the Municipal Party’s designated locations.
Contractor will be responsible for disassembling wheels and axles from containers.

CONTAINERS AND HARDWARE: When the words "containers and hardware" are used in this
specification, it is defined as a complete unit including a full lid assembly. All containers furnished
shall be unconditionally warranted for a period of ten (10) years against defects including, but not
limited to, cracking, chipping, peeling, distortion, failures at attachment, weathering degradation,
defective or insufficient material, poor material workmanship on the part of the manufacturer and
lowered ultraviolet resistance to aging in the process or normal operational use. Defective
containers which are replaced under the warranty provisions shall be replaced as complete
containers, i.e., with lids, hardware, wheels, etc.

A defective container is any container, including any component part that:

(1) Does not continuously perform in the intended manner as set forth in the bid specifications
(including smooth maneuverability);

(2) Does not comply with the minimum design requirements of the bid specifications;

(3) Does not continuously perform in an intended manner within the warranty period.

Such container(s) shall then be considered to be defective in material, workmanship, and/or design
and shall be covered by the terms of this warranty specification. Any defective container shall be
replaced or repaired at no cost to the City of Mesa as per Section 12. All costs associated with the
replacement of such defective containers shall be borne by the Seller. In the event that containers
or any component parts have been manufactured and supplied to the Seller by a subcontractor,
the City of Mesa shall consider the Seller as the manufacturer regarding product liability. The
warranty terms set forth herein Section 13 shall be applied in full to the Seller.

Containers and hardware which the Seller is obligated to replace under warranty provision shall be
promptly replaced. Failure by the Seller to replace defective containers, lids, or hardware within
thirty (30) calendar days after notice from the City, shall be sufficient cause for the City to bill the
Contractor to recover predetermined costs as per Specifications.

WARRANTY: All containers delivered shall be warrantied for a minimum period of ten (10) years
from the date of acceptance against any defects in material and workmanship. At any time during
the period, if a defect should occur in any item, that item shall be repaired or replaced by the Seller
at no cost or obligation to the Buyer, except where it be shown that the defect was caused by fire
damage. Example, a defective lid will be replaced with a lid, a defective wheel will be replaced with
a wheel, a defective container body, will be replaced with a complete container. All replacements
due to a defect or workmanship shall include all costs, including freight.

TheContractor expressly warrants all items to be new, free from defects in design, materials,
and workmanship, and to be fit and sufficient for their intended purpose. All warranties shall
survive acceptance and payment by the Municipal Parties.

Page 12 of 62 Contract #2023125

Otto Environmental Systems

13.

The Contractor will arrange to have the containers stacked, picked up, and removed from the
Municipal Parties’ designated Facility. Contractor will disassemble wheels and axles from
containers.

LIQUIDATED DAMAGES: If the Contractor fails to deliver the refuse containers, including
unloading, stacking, assembly, and storage placement, within the time specified in these
specifications, or any extension thereof, the actual damages to the City for the delay will be difficult
or impossible to determine. Therefore, in lieu of actual damages, the Contractor shall pay to the
City as fixed, agreed, and liquidated damages for each calendar day of delay, the amount of $1.00
per container per calendar day for containers not received per the delivery schedule listed in the
specifications or as agreed to in writing by both parties. The liquidated damages of $1.00 per day

per barrel, will be accounted for as a direct credit to the corresponding invoice for which
the liquidated damages occurred. The City may also terminate this contract in whole or part as

provided in the "Default" provision. In that event, the Contractor shall be liable for such liquidated
damages accruing until such time as the City may reasonably obtain delivery or performance of
similar supplies and services. The Contractor shall not be charged with liquidated damages when
the delay arises without the fault or negligence of the Contractor.

Page 13 of 62 Contract #2023125

Otto Environmental Systems

EXHIBIT B

PRICING

Residential Refuse and Recycling Containers
Bids for Otto Environmental Systems (AZ), LLC
Lot 1 - Pricing 22/35 Gallon Refuse/Recycling containers per specifications 4 $44.49 1000 $44,490.00}

ot 1 Pricing Replacement Lid & Hardware for 32/35 Gallon al $20.00 50] $1,000.00

‘ot 1 - Pricing [60/68 Gallon Refuse/Recyciing containers per specifications 3] $50.00 73750) $657,500.00)

‘ot 1 - Pricing Replacement Lid & Hardware for 60/68 Gallon zal $20.00 650 $13,200.00}
Lot 1- Pricing 190/98 Gallon Refuse/Recyciing containers per specifications 4 $55.99] 702768) $5,753,980.32|
Lot 7 - Pricing Replacement Lid & Hardware for 90/98 Gallon al $20.00 5140 $102,600.09]
Lot 2 - Buyback of Materials [32/35 GALLON MOPE Buyback of Materials 7a $0.01 1 $0.01
Lot 2 - Buyback of Materials [32/35 GALLON HDPE Buyback of Materials a) $0.11 1 $0.17
Lot 2- Buyback of Materials [32/85 GALLON Cross-Linked Buyback of Materials “.¢| 0.0° 4 50.01
Lot 2 - Buyback of Materials [40/48 GALLON MDPE Buyback of Materials 2-al 0.07 1 50.0
Lot 2- Buyback of Materials 40/48 GALLON HDPE Buyback of Materials, 2-5) $0.0 7 0.9.
Lot 2 - Buyback of Materials 40/48 GALLON Cross-Linked Buyback of Materials 2-0] 0.01) i 0.0
Lot 2 - Buyback of Materials [60/68 GALLON MDPE Buyback of Materials Sal $0.04 1 0.071
Lot 2 - Buyback of Materials [60/68 GALLON HDPE Buyback of Materials En) 0.07) 1 0.01
Lot 2 - Buyback of Materials [60/68 GALLON Cross-Linked Buyback of Materials, Ex 50.01 1 0.01
Lot 2 - Buyback of Materials 190/98 GALLON MDPE Buyback of Materials eal 0.01 fl 0.01
Lot 2- Buyback of Materials 60/98 GALLON HDPE Buyback of Materials 0 0.11 1 0.17
Lot 2- Buyback of Materials [90/98 GALLON Cross-Linked Buyback of Materials 4c 0.01 7 0.01)
Lot 3 - Optional items: IRFID Tag (price per container - all sizes) E} 33.50] 4 3.50)
Lot 3 - Optional items ir_ mold Labeling (price per container - all sizes) 9] 4.00] 1 $4.00)
Lot 3- Optional Items Hot Stamp Die Creation Charge (price per die - all sizes) 70] 0.00} 1 $300.00)
Lot 4 - BAFO [40/48 Gallon Refuse/Recycling containers per specifications 2| $48.99 400) $79,596.00}
Lot 4 - BAFO. Replacement Lid & Hardware for 40/48 Galion 2al $16.50 20 $330.00]

Contract #2023125

Page 14 of 62

(Otto Environments! Systems

EXHIBIT C
MESA STANDARD TERMS AND CONDITIONS

a INDEPENDENT CONTRACTOR. It is expressly understood that the relationship of Contractor to
the City will be that of an independent contractor. Contractor and all persons employed by
Contractor, either directly or indirectly, are Contractor's employees, not City employees.
Accordingly, Contractor and Contractor's employees are not entitled to any benefits provided to
City employees including, but not limited to, health benefits, enrollment in a retirement system, paid
time off or other rights afforded City employees. Contractor employees will not be regarded as City
employees or agents for any purpose, including the payment of unemployment or workers’
compensation. If any Contractor employees or subcontractors assert a claim for wages or other
employment benefits against the City, Contractor will defend, indemnify and hold harmless the City
from all such claims.

2. SUBCONTRACTING. Contractor may not subcontract work under this Agreement without the
express written permission of the City. If Contractor has received authorization to subcontract work,
it is agreed that all subcontractors performing work under the Agreement must comply with its
provisions. Further, all agreements between Contractor and its subcontractors must provide that
the terms and conditions of this Agreement be incorporated therein.

3. ASSIGNMENT. This Agreement may not be assigned, either in whole or in part, without first
receiving the City’s written consent. Any attempted assignment, either in whole or in part, without
such consent will be null and void and in such event the City will have the right, at its option, to
terminate the Agreement. No granting of consent to any assignment will relieve Contractor from
any of its obligations and liabilities under the Agreement.

4. SUCCESSORS AND ASSIGNS, BINDING EFFECT. This Agreement will be binding upon and
inure to the benefit of the parties and their respective permitted successors and assigns.
5. NO THIRD-PARTY BENEFICIARIES. This Agreement is intended for the exclusive benefit of the

parties. Nothing set forth in this Agreement is intended to create, or will create, any benefits, rights,
or responsibilities in any third parties.

6. NON-EXCLUSIVITY. The City, in its sole discretion, reserves the right to request the materials or
services set forth herein from other sources when deemed necessary and appropriate. No
exclusive rights are encompassed through this Agreement.

7. AMENDMENTS. There will be no oral changes to this Agreement. This Agreement can only be
modified in a writing signed by both parties. No charge for extra work or material will be allowed
unless approved in writing, in advance, by the City and Contractor.

8. TIME OF THE ESSENCE. Time is of the essence to the performance of the parties’ obligations
under this Agreement.
9. COMPLIANCE WITH APPLICABLE LAWS.

a. General. Contractor must procure all permits/licenses and pay all charges and fees necessary
and incidental to the lawful conduct of business. Contractor must stay fully informed of existing
and future federal, state, and local laws, ordinances, and regulations that in any manner affect
the fulfillment of this Agreement and must comply with the same at its own expense. Contractor
bears full responsibility for training, safety, and providing necessary equipment for all
Contractor personnel to achieve compliance throughout the term of the Agreement. Upon
request, Contractor will demonstrate to the City's satisfaction any programs, procedures, and
other activities used to ensure compliance.

b. Drug-Free Workplace. Contractor is hereby advised that the City has adopted a policy
establishing a drug-free workplace for itself and those doing business with the City to ensure
the safety and health of all persons working on City contracts and projects. Contractor will
require a drug-free workplace for all Contractor personnel working under this Agreement.
Specifically, all Contractor personnel who are working under this Agreement must be notified
in writing by Contractor that they are prohibited from the manufacture, distribution,

Page 15 of 62 Contract #2023125
Otto Environmental Systems

Page 16 of 62

dispensation, possession, or unlawful use of a controlled substance in the workplace.
Contractor agrees to prohibit the use of intoxicating substances by all Contractor personnel
and will ensure that Contractor personnel do not use or possess illegal drugs while in the course
of performing their duties.

Federal and State Immigration Laws. Contractor agrees to comply with the Immigration
Reform and Control Act of 1986 (IRCA) in performance under this Agreement and to permit the
City and its agents to inspect applicable personnel records to verify such compliance as
permitted by law. Contractor will ensure and keep appropriate records to demonstrate that all
Contractor personnel have a legal right to live and work in the United States.

i. As applicable to Contractor, under the provisions of A.R.S. § 41-4401, Contractor hereby
warrants to the City that Contractor and each of its subcontractors will comply with, and
are contractually obligated to comply with, all federal immigration laws and regulations that
relate to their employees and A.R.S. § 23-214(A) (hereinafter collectively the “Contractor
Immigration Warranty”).

ii. A breach of the Contractor Immigration Warranty will constitute a material breach of this
Agreement and will subject Contractor to penalties up to and including termination of this
Agreement at the sole discretion of the City.

iii. To ensure Contractor and its subcontractors are complying with the Contractor Immigration
Warranty, the City retains the legal right to conduct random verification of the employment
records of any Contractor or subcontractor employee who works on this Agreement,
including the inspection of the papers of such employees. Contractor agrees to assist the
City in regard to any random verification performed.

iv. Neither Contractor nor any subcontractor will be deemed to have materially breached the
Contractor Immigration Warranty if Contractor or subcontractor establishes that it has
complied with the employment verification provisions prescribed by Sections 274a and
274b of the Federal Immigration and Nationality Act and the E-Verify requirements
prescribed by A.R.S. § 23-214(A).

Nondiscrimination. Contractor understands and acknowledges that it is the policy of the City
of Mesa to promote nondiscrimination. As such, Contractor represents and warrants that it
does not discriminate against any person on the basis of race, color, ethnicity, national origin,
age, disability, religion, sex, sexual orientation, gender identity, veteran's status, marital status,
familial status, or genetic information (collectively, “protected status”) in employment, housing,
or facilities, establishments, accommodations, services, commodities, or use offered to or
enjoyed by the general public. Contractor further represents and warrants that it does not, on
the basis of protected status, refuse to hire or employ or bar or discharge from employment
any person, or to discriminate against such person in compensation, conditions, or privileges
of employment. In performance of this Agreement, Contractor shall comply with all applicable
federal, state, and local laws and executive orders regarding non-discrimination including, but
not limited to, the following (as amended): Title VII of the U.S. Civil Rights Act of 1964; Section
504 of the Federal Rehabilitation Act; Age Discrimination Act of 1967; Equal Pay Act of 1963;
and Americans with Disabilities Act of 1990.

State Sponsors of Terrorism Prohibition. Per A.R.S. § 35-392, Contractor must not be in
violation of section 6(j) of the Federal Export Administration Act and subsequently prohibited
by the State of Arizona from selling goods or services to the City.

Israel Boycott Divestments. In accordance with the requirements of A.R.S. § 35-393.01, by
entering into this Agreement, Contractor certifies that it is not currently engaged in, and agrees
for the duration of the Agreement to not engage in, a boycott of Israel.

Forced Ethnic Uyghur Labor Prohibition. In accordance with the requirements of A.R.S. §
35-394, Contractor certifies that it does not currently, and agrees for the duration of the contract
that it will not, use (i) the forced labor of ethnic Uyghurs in the People’s Republic of China; (ii)
any goods or services produced by the forced labor of ethnic Uyghurs in the People’s Republic

Contract #2023125
Otto Environmental Systems