DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA REPORT CityofPoway
January 17, 2023
Honorable Mayor and Members of the City Council
Audrey Denham, Director of Community Services AO
Roger Morrison, Senior Management Analyst @
(858) 668-4581 or [email protected]
CITY COUNCIL
Agreement with HASA, Inc., for the Supply of Chemicals for the Poway Swim Center, Bid 23-005
A bid request for pool chemicals for the Poway Swim Center was issued on November 16, 2022. Two responsive bids were received. Staff is recommending award of the agreement to the lowest responsible bidder, HASA, Inc. As the cost of pool chemicals has increased and now exceeds the budgeted amount, an appropriation of $18,000 is required to award the agreement.
Recommended Action:
It is recommended the City Council approve the Agreement for Supply of Chemicals for the Poway Swim Center to HASA, Inc., authorize the City Manager to execute all necessary documents associated with the Agreement, and appropriate funds for the remainder of the fiscal year.
Discussion:
The City contracts supply and delivery of sodium hypochlorite (chlorine) and hydrochloric acid used to operate the pool. Because of the large quantities and the special delivery requirements to pump the chemicals into the large storage tanks at the pool, as well as consolidation within the pool chemicals industry, there are few companies who have the capability to provide these chemicals.
In 2018 after a competitive bidding process with two bidders, the City awarded the contract to Commercial Aquatic Services, Inc., which was subsequently acquired by The Illini Companies, Inc., and then sold to HASA, Inc. The agreement had a term of one year with up to four one-year extensions.
The agreement also allowed a Consumer Price Index-based increase in costs at each extension, not to exceed 5% annually. Based on this agreement, three extensions were executed.
Costs for pool chemicals have greatly increased across the industry due to inflation and supply chain issues, and the contractor declined the fourth extension, requesting a much higher increase. The City 1 of 8
January 17, 2023, Item #4
therefore
put
the
contract
back
out
to
bid.
The
bid
was
advertised
in
the
Poway
News
Chieftain
on
November
24 and
December
1,
2022.
Two
bids
were
received
by
December
13,
2022:
Contractor
Annual
Cost
HASA,
Inc.
$80,623.00
Waterline
Technologies,
Inc.
$94,292.00
An
additional
nonresponsive
proposal was
received
by
email
but
did
not
meet
bid
requirements.
Staff
is
recommending
award
of
the
contract
to
the
lowest
responsible
bidder,
HASA,
Inc.,
in
the
amount
of
$80,623.
The
term
is
once
again
one
year
with
four
potential
one-year
extensions
that
allow
a Consumer
Price
Index-based
increase
in
costs
at
each
extension,
not
to
exceed
5%
annually.
Because
the
cost
of
the
new
agreement
is
greater
than
the
amount
budgeted
for
FY22/23,
an
appropriation
of
$18,000
from
the
General
Fund
will
be
required
to
fund
the
chemical
purchases
for
the
rest
of
the
fiscal
year.
Environmental Review: This
action
is
not
subject
to
review
under
the
California
Environmental
Quality
Act
(CEQA).
Fiscal
Impact:
The
annual
cost
of
the
agreement
based
on
estimated
chemical
use
is
$80,623.
Staff
is
recommending
the
City
Council
appropriate
$18,000
from
the
General
Fund's
Unassigned
Fund
Balance
to
the
Aquatics
Division
Budget
-
Chemicals
account
(203020-41200)
to
ensure
sufficient
budget
for
the
remainder
of
the
fiscal
year
. Sufficient
funds
are
available
for
this
request.
Public
Notification:
None. Attachment: A.
Agreement
Reviewed/
Approved
By:
Wendyl!iaserman Assistant
City
Manager
2 of8
Reviewed
By:
Alan
Fenstermacher
City
Attorney
Approved
By:
January 17, 2023, Item #4
CITY
OF
POWAY
FORM
OF
CONTRACT
SALE
AND
PURCHASE
OF
GOODS
AND
MA
TE
RIALS
This
Contract,
entered
into
this
17th
day
of
January,
2023,
by
and
between
the
CITY
OF
POWAY,
a
general
law
city
and
municipal
corporation
(the
"City"),
and
HASA,
Inc.,
a
California
corporation,
(the
"Seller").
1. Sale
and
Purchase.
Seller
will
sell,
transfer
and
deliver
to
City,
and
City
will
accept
and
purchase
from
Seller
at
the
location
identified
in
Section
5,
below,
and
in
Bid
Schedule,
attached
hereto
as
Exhibit
"A"
and
made
part
hereof,
all
of
the
goods,
materials
and
other
items
in
such
quantities
as
City
may
require,
of
such
specified
sizes,
quality
and
types,
classifications,
and
minimum
order
for
each
shipment,
as
defined
by
the
Community
Services
Department,
and
as
are
identified
in
the
Bid
Schedule.
2. Term.
The
length
of
this
contract
shall
be
for
one
year
beginning
on
or
about
January
17,
2023.
The
contract
may
be
extended
annually
for
four
(4)
additional
one-year
periods
for
a
maximum
total
of
five
(5)
years.
Each
year
of
the
Contract,
the
Seller's
costs
may
be
adjusted
based
on
the
annual
change
of
the
Consumer
Price
Index
for
the
San
Diego
Carlsbad
area
from
January
1 to
December
31 of
the
previous
year.
The
CPI
shall
be
based
on
"All
Urban
Consumers",
not
to
exceed
five
(5)
percent.
The
CPI
increase
to
start
with
the
contract
renewal
in
2024,
if executed.
The
City
may
terminate
this
contract
without
cause
upon
providing
a
60-day
notice
. The
City
requires
a
90-day
written
notice
for
contractors
who
have
the
intention
not
to
renew
an
extension
or
to
exit
the
contract.
3. Price.
Seller
agrees
to
invoice
the
goods
and
services,
as
it may apply,
sold
at
the
prices
identified
in
Bid
Schedule.
Price
to
include
any
State
or
Federal
fees
e.g.
CA
Mill
assessment
fee. 4.
Payment.
The
City
shall
make
payment
within
30 days
of
receipt
of
invoice
after
delivery
of
chemical
product.
Payment
shall
be
considered
as
having
been
made
upon
the
date
such
payment
is
deposited
in
the
U.S.
Mail,
first-class
postage
pre-paid
and
addressed
to
Seller.
3 of
8 ATTACHMENT
A
January 17, 2023, Item #4
5. Delivery.
Delivery
shall
be
to
the
City
of
Poway
Swim
Center
at
13094
Civic
Center
Drive,
Poway,
CA
92064,
as
needed.
Delivery
hours
are
Monday-
Friday
from
7:30
a.m.
to
6:30
p.m.
and
per
the
requirements
of
the
bid
document.
6. Supply
and
Output
Capability
of
Seller
.
If
Seller
is
unable
for
any
reason
to
supply
City's
requirements,
Seller
shall
immediately
notify
City
and
provide
its
best
estimate
of
the
delivery
and
installation,
as
it
may
apply.
City
may,
at
its
sole
and
exclusive
option,
notify
Seller
in
writing
of
City's
decision
to
terminate
the
order
without
liability.
If the
inability
to
supply
City
with
its
needs
is
not
due
to
the
negligence
or
faults
of
Seller,
and
Seller
has
notified
City
in
writing
as
soon
as
Seller
discovers
the
circumstances
necessitating
a
revised
delivery
date,
the
termination
of
the
order
shall
not
entitle
City
to
any
damages.
7. Claims.
The
shipment
will
be
FOB
Poway,
CA
at
the
address
set
forth
in
Section
5,
above,
with
all
delivery
charges
and
claims
for
damage
in
route
are
the
responsibility
of
the
Seller
.
Evident
damage
to
any
shipment
will
be
indicated
by
a
notation,
which
will,
with
the
exception
of
concealed
damages,
be
made
by
the
carrier's
agent
on
the
delivery
receipt
before
the
receipt
is
signed
for
acceptance.
The
notation
must
clearly
specify
the
extent
of
damage.
Concealed
damage
must
be
reported
to
the
carrier
within
15 days
of
delivery.
8. Assignment
and
Delegation:
Successors.
Neither
Seller
nor
City
shall
assign
any
rights
or
delegate
any
obligations
to
the
Contract
without
express
written
approval
and
acceptance
of
the
other
party.
Any
such
assignment
or
delegation
without
express
written
approval
and
acceptance
shall
be
null
and
void.
All
terms,
conditions
and
provisions
of
this
bid
proposal
shall
inure
to
and
bind
each
of
the
parties
hereto,
and
each
of
their
successors
in
interest,
executors,
and
administrators.
9. Indemnification.
Seller
agrees
to
indemnify,
defend
by
an
attorney
of
the
City's
own
choice,
and
hold
harmless,
the
City,
and
its
elected
and
appointed
officers,
agents
and
employees
(the
"lndemnitees")
against
any
and
all
liabilities,
claims,
actions,
causes
of
action,
proceedings,
suits,
damages,
judgments,
liens,
levies,
costs
and
expenses
of
whatever
nature,
including
reasonable
attorneys'
fees
and
disbursements
(collectively
"Claims"),
which
lndemnitees
may
suffer
or
incur
or
to
which
lndemnitees
may
become
subject
by
reason
of
or
arising
out
of
any
injury
to
or
death
of
any
person(s),
damage
to
property,
loss
of
use
of
property,
economic
loss
or
otherwise
occurring
as
a
result
of
or
allegedly
caused
by
the
City's
use
of
the
product
and
installation
services
sold
by
seller
to
City,
4 of8
January 17, 2023, Item #4
provided
that
City
has
not
altered
or
tampered
with
such
product
in
any
way
and
has
used
such
product
in
accordance
with
Seller's
or
manufacturer's
instructions
and
warnings.
If any
action
or
proceeding
is
brought
against
lndemnitees
by
reason
of
any
of
the
matters
against
which
Seller
has
agreed
to
indemnify
lndemnitees
as
provided
above,
Seller,
upon
notice
from
City,
shall
defend
lndemnitees
at
Applicant's
expense
by
counsel
acceptable
to
City,
such
acceptance
not
to
be
unreasonably
withheld.
lndemnitees
need
not
have
first
paid
for
any
of
the
matters
to
which
lndemnitees
are
entitled
to
indemnification
in
order
to
be
so
indemnified
.
The
insurance
required
to
be
maintained
by
Seller
under
Section
10 of
this
Agreement
shall
ensure
Seller's
obligations
under
this
section,
but
the
limits
of
such
insurance
shall
not
limit
the
liability
of
Seller
hereunder.
Seller
shall,
upon
receipt
of
written
notice
of
any
Claim,
promptly
take
all
action
necessary
to
make
a
claim
under
any
applicable
insurance
policy;
however,
if
Seller
fails
to
take
such
action
as
is
necessary
to
make
a
claim
under
any
such
insurance
policy,
Seller
shall
reimburse
City
for
any
and
all
costs,
charges,
expenses,
damages
and
liabilities
incurred
by
City
in
making
any
claim
on
behalf
of
Seller
under
any
insurance
policy
or
policies
required
pursuant
to
this
Agreement.
The
provisions
of
this
section
shall
survive
the
expiration
or
earlier
termination
of
this
Agreement.
The
provisions
of
this
section
do
not
apply
to
Claims
occurring
as
a
result
of
this
City's
sole
negligence
or
willful
acts
or
omissions
.
The
parties
agree
to
cooperate
fully
in
the
resolution
of
any
claims
for
such
liability,
loss
or
damage.
10. Seller's
Insurance.
The
City
shall
be
named
as
an
additional
insured
with
the
bidder.
Refer
to
the
Insurance
Code
of
the
State
of
California.
Evidence
shall
be
furnished
that
the
requirements
of
said
code
are
met.
Unless
specified
otherwise,
the
minimum
requirements
are
as
follows:
•
Comprehensive
General
Liability:
$1,000,000
Bodily
Injury
&
Property
Damage
combined
each
occurrence
and
$2,000,000
aggregate;
•
Automobile
Liability,
including
owned,
hired,
and
non-owned
vehicles:
$1,000,000
Combined
Single
Limit
coverage;
•
Workers'
Compensation
insurance:
Per
the
statutory
amount.
Each
policy
is
to
provide
primary
coverage
to
City
and
its
elected
and
appointed
boards,
officers,
agents,
and
employees.
It
is
not
secondary
or
in
any
way
subordinate
to
any
other
insurance
or
coverage
maintained
by
City.
The
failure
of
bidder
to
provide
City
with
insurance
meeting
all
requirements
of
this
Contract
within
15 calendar
days
after
the
Award
of
Bid
shall
constitute
a
material
breach
of
the
Contract,
entitling
City
to
terminate
the
Contract.
All
bonds
and
all
insurance
shall
meet
the
following
standards.
The
issuing
5 of
8 January 17, 2023, Item #4
company:
a. Shall be an "admitted surety" or an insurance company listed by the State Insurance Commissioner; and
b. Shall have a rating in the latest Best's Rating Guide of "A-" or better and Class VI or better; or be "treasury listed" for the size of risk to be undertaken.
In the event that the company does not satisfy subsection (b) above, the City Attorney or City Manager may only approve such company if the small size of the insurance or surety obligation or other risk factor justify approval, and satisfactory evidence is produced by the company that its financial responsibility and performance capability are sufficient to insure or secure adequately the risk obligation. (See City Council Resolution 90-082.)
11. Integration.
The terms of this Contract are intended by the parties to be the final expression of our agreement with respect to such terms and also as a complete and exclusive statement of such terms. Any documents prepared and issued by City in preparation for and preliminary to the award and execution of a Purchase Order are expressly made a part of this Bid. However, in the event of any conflict between the written expressions of such prior documents and the written expressions of this document, the terms and interpretations given to the provisions of this writing shall prevail. No agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of either party, shall be of any effect unless it is in writing and executed by the party to be bound thereby.
12. Applicable Law.
The order shall be governed by the laws of the State of California. Any legal action brought to enforce the terms and conditions of this Agreement shall be filed in a court of competent jurisdiction with San Diego County. Seller hereby waives any right to remove any action from San Diego County as is otherwise provided in California Code of Civil Procedure Section 394. In the event any legal action is taken by either party to this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees. costs of suit and other litigation expenses, including expert witness fees, from the other party.
[Remainder of Page Left Blank Intentionally]
6 of 8
January 17, 2023, Item #4
IN
WITNESS
WHEREOF
, the
parties
hereto
have
caused
this
order
to
be
executed
by
their
respective
authorized
representatives.
SELLER:
____________
_
Company
Name
BY:
------------------Signature
of
Seller's
Authorized
Representative
PRINT
NAME:
--------------
CITY
OF
POWAY:
BY:
------------------Chris
Hazeltine,
City
Manager
Date:
-----------------
ATTEST: BY:
Date:
----------------
----------
Carrie
Gallagher,
CMC,
City
Clerk
Approved
as
to
form:
BY:
Date:
----------------
----------
A I
an
Fenstermacher,
City
Attorney
7 of
8 January 17, 2023, Item #4
8 of 8
EXHIBIT A BID SCHEDULE
SUPPLY OF CHEMICALS FOR THE POWAY SWIM CENTER,
Bid No. 23-005
(To be completed by bidder.)
CHEMICAL DESCRIPTION UNIT QUANTITY UNIT PRICE
Sodium Hypochlorite (12.5% Gallons 20,000 $ 3.09 solution) for Main Pool Hydrochloric Acid (31 % solution) for Gallons 2,000 $ 4.31 Main Pool Sodium Hypochlorite (12.5% Gallons 1,500 $ 6.45 solution) for Splash Pad Hydrochloric Acid (31% solution) for Gallons 100 $ 5.28 Splash Pad Total Price
•• All costs for delivery are to be borne by the bidder ..
TOTAL AMOUNT OF BID IN FIGURES: $ 80,623.00
TOTAL.,.
$ 61,800.00
$ 8,620.00
$ 9,675.00
$ 528.00
$ 80,623.00
------------------
TOTAL AMOUNT OF BID IN WORDS: __ ei=g_ht~y_th_o_u_s_a_nd_si_x_h_u_nd_r_e_d_a_nd_tw_e_n~ty~t_h_re_e __ _ _______________ DOLLARS and ___ z_e_r_o ______ CENTS
PRICES SHALL BE FIRM FROM DATE OF AWARD OF BID THROUGH JANUARY 16, 2024.
DEPOSIT POLICY: (Show Item for Reference) even exchange deposit policy. 53g Drums $75 DEMURRAGE POLICY: (Show Item for Reference) ______________ _ ******************************"k,l:***********"l:-ll:lnt-:t-lr*tt~******HH*~tt***¼>l:***:t-,1:*~*******tt..,._tt~** January 17, 2023, Item #4