County of Orange Page 1 of 25 RCA-017-22010155
County Procurement Office File No. 2267902
REGIONAL COOPERATIVE AGREEMENT (RCA)
CONTRACT NUMBER RCA-017-22010155
BETWEEN
COUNTY OF ORANGE/COUNTY PROCUREMENT OFFICE
AND
DS SERVICES OF AMERICA, INC., DBA PRIMO WATER NORTH AMERICA FOR
BOTTLED WATER AND RELATED PRODUCTS
This Contract RCA-017-22010155 for Bottled Water and Related Product s (“Contract”) is made and entered into as o f the date fully executed by and between the County of Orange, a pol itical subdivision of the State of California , (“County”) and DS Services of America, Inc., doing business as Primo Water North Am erica, a state o f Delaware corporati on (“Contractor”) with a County and Contractor sometimes referred to individually as (“Party”) or collectively as (“Parties”).
ATTACHMENTS
This Contract is comprised of this document and the f ollowing Attachments, which ar e attached hereto and incorporated by reference into this Contract:
Attachment A – Scope of Work
Attachment B – Pricing and Compensation
RECITALS
WHEREAS, Contractor and County are entering into this Contract for Bottled Water and Related Products under a usage Contract; and,
WHEREAS, County solicited Contract for Bottled Water and Related Product s as set forth herein, and Contractor represented that it is qualified to provide Bottled Water and Related Product s to the County as further set forth here; and,
WHEREAS, Contractor agrees to prov ide Bottled Water and Related Product s to the County as further set forth in the Scope of Work, attached hereto as Attachment A; and, WHEREAS, County agrees to pay Contractor based on the sche dule of fees set forth in Payment/Compensation, attached hereto as Attachment B; and, NOW, THEREFORE, the Parties mutually agree as follows
ARTICLES
GENERAL TERMS AND CONDITIONS:
A. GOVERNING LAW AND VENUE: This Contract has been negotiated and executed in t he state of California and shall be governed by and construed under the laws of the state of California. In the event of any legal action to enforce or interpret this Contract, the sole and exclusive venue sha ll be a court of competent jurisdiction located in Orange County, C alifornia, and the parties h ereto agree to a nd do he reby submit to the jur isdiction of such court, notwithstanding Code of Civil Procedure Section 394. Furthermore, the parties specifically agree to waive any and all rights to request that an action be transferred for adjudication to another county.
B. ENTIRE CONTRACT: This Contract contains the entire Contract between the parties with respect to the matters herein, and there are no restricti ons, promises, warranties or undertaki ngs other than those set fort h herein o r referred to here in. No exceptio ns, alte rnatives, substitutes or revisions are valid or binding on County unless authorized by County in writing. Electro nic acceptance of any a dditional terms, co nditions or supplem ental Con tracts by any County EXHIBIT 1
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employee or agent, including but not limited to installers of software, shall not be valid or binding on County unless accepted in writing by County’s Purchasing Agent or designee.
C. AMENDMENTS: No alteration or variation of th e terms o f this Contract shal l be valid unless made in wr iting and signed by the parties; no oral understanding or agreement not incorporated herein shall be binding on either of the parties; and no exceptions, alterna tives, s ubstitutes or revisions are valid or binding on County unless authorized by County in writing.
D. TAXES: Unless otherwise provided herein or by law, price quoted does not include California state sales or use tax. Out -of-state Contractors shall indi cate California Board of Equalization permit nu mber and sales permi t number o n invoices, if Cal ifornia sales ta x is add ed and collectable. I f no permit numbers are shown, sales tax will be deducted from payment. The Auditor-Controller will then pay use t ax directly to the State of California in lieu of payment of sales tax to the Contractor.
E. DELIVERY: Time of de livery of goods or services is of the essence in this C ontract. C ounty reserves the right to refuse any goods or services and to cancel all or a ny part of the goods not conforming to applicable specifications, drawings, samples or descriptions or services that do not conform to the prescribed statement of work. Acceptance of any part of the order for goods shall not bind C ounty to accept future s hipments nor de prive it of the right t o return goods already accepted at Contractor’s expense. Over shipments and under shipments of goods shall be only as agreed to in writing by C ounty. Delivery shall not be deemed to be complete until all goods or services have actually been received and accepted in writing by County.
F. ACCEPTANCE/PAYMENT: Unless otherwise agreed to in writing by County, 1) acceptance shall not be deemed complete unless in writing and until all the services have a ctually been rendered, inspected, and tested to the satisfact ion of Co unty, and 2) payment shall be made after satisfactory acceptance.
G. WARRANTY: Contractor expressly warrants that the goods covered by this Contract are 1) free of liens or encumbrances, 2 ) merchantable and good for the ordinary purposes for which t hey are used, and 3) fit for the particular purpose for w hich they are intended. Acceptance of this or der shall constitute an agreement upon Contractor’s part to indemnify, defend and hold County and its indemnities a s identified in Article “Z” below, a nd as more fully described in Article “Z,” harmless from liability, loss, damage and expense, including reasonable counsel fees, incurred or sustained by County by reason of the failure of the goods/services to conform to such warranties, faulty work per formance, neg ligent or unlawf ul acts, and n on-compliance with any applicable state or federal c odes, or dinances, o rders, or statutes, including the Occupational Safety and Health Act (OSHA) and t he California Industrial Safety Act. Such remedies shall be in addition to any other remedies provided by law.
H. PATENT/COPYRIGHT MATERIALS/PROPRIETARY INFRINGEMENT: Unless otherwise expressly provided in this Contract, Contractor shall be solely responsib le for clearing the rig ht to use any patented or copyrighted materials in the performance of this Contra ct. Contracto r warrants that any software as modified through services provided hereunder will not infringe upon or violate any patent, proprietary rig ht, or trade secret rig ht of any third party. Contractor agr ees that, in accordance with the more specific requirement contained in Article “Z” below, it shall indemnify, defend and hold County and County Indemnitees harmless from any and all such claim s and be responsible for payment of all co sts, damages, penal ties and expens es related to or arising from such claim(s), including, costs and expenses but not including attorney’s fees.
I. ASSIGNMENT: The terms, covenants, and conditions contained herein shall apply to and bind the heirs, successors, executors, admini strators and as signs of the p arties. Further more, neither the performance of t his Contract nor any portion thereof may be assigned by Contractor without the express written consent of County. A ny attempt by Contractor to assign the performance or any portion thereof of this Contract without the express written consent of County shall be invalid and shall constitute a breach of this Contract.
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J. NON-DISCRIMINATION: In the performance of this Contra ct, Contractor agrees t hat it w ill comply with the requirements of Section 1 735 of the Cal ifornia Labor Code and not engage nor permit any s ubcontractors to e ngage in discrimination in employment of persons because of the race, religious creed, color, nati onal origin, ancestry, physical disability, mental disability , medical condi tion, marital status, or sex o f s uch pe rsons. Contractor acknow ledges t hat a violation of this provision shall subject Contractor to penalties pursuant to Section 1741 of the California Labor Code.
K. TERMINATION: In addition to any other rem edies or rights it may have b y law, County ha s the right to immediately terminate this Contract without penalty for cause or after 30 days’ written notice without cause , unless otherwise specifie d. Cause shall be defi ned as any material breach of contract, any misrepresentation or fraud on the part of the Contractor. Exercise by County of its right to terminate the Contract shall relieve County of all further obligations.
L. CONSENT TO BREACH NOT WAIVER: No term or prov ision of this Contract shall be deemed waived and no breach excused, unless such wa iver or c onsent shall be in writi ng and si gned by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether e xpress o r implied, shall not constitut e consent to, w aiver of, or excuse for any other different or subsequent breach.
M. INDEPENDENT CONTRACTOR: Contractor shall be considered an independent contractor and neither Contractor, its empl oyees, nor anyone worki ng under Contractor shall be considere d an agent or a n employee of County. Neither Contractor, its employees nor an yone working under Contractor shall qualify for workers’ compensation or other fringe benefits of any kind through County.
N. PERFORMANCE WARRANTY: Contractor shall warrant all wor k under this Co ntract, taking necessary steps and precautions to perform the work to County’s satisfaction. Contractor shall be responsible for the professional quality, technical assurance, tim ely completion and coor dination of all doc umentation and othe r goods/services furnished by the Contractor under this Contract.
Contractor shall perform all w ork diligently, carefully, and in a good and workmanlike manner; shall furnish all necessary labor, supervision, machinery, equipment, materials, and supplies, shall at its s ole expense ob tain and maintai n a ll per mits and lice nses required by pub lic authorities, including those of County required in its governmental capacity, in connection with perform ance of the work. If pe rmitted to subcontract, Contractor sha ll be fully res ponsible for a ll work performed by subcontractors.
O. INSURANCE PROVISION: Contractor will need to comply with the following insurance requirements if making the deliveries to the County of Orange. No insurance is required if a common carrier makes deliveries to the County of Orange.
Prior to t he provision of services u nder this Contract, the Contractor agrees to purchase all required insurance at Contractor’s expense, including all endorsements required herein, necessary to satisfy the County that the insura nce provisions of this Contrac t have been complied w ith.
Contractor agrees to kee p such insurance coverage, Certificates of Insurance, and endorsements on deposit with the County during the entire term of this Contract. In addition, all subcontractors performing work on behalf of Con tractor pursuant to this Contract shall obtain insurance subject to the same terms and conditions as set forth herein for Contractor.
Contractor shall ensure that all subcontractors performing work on behalf of Contractor purs uant to this Contract shall be covered under Contrac tor’s insur ance as a n Addition al Insured or maintain insurance subject to the same terms and conditions as set forth herein for Contractor.
Contractor shall not allow subcontractors to work if subcontrac tors have less than the level of coverage required b y County fr om Contra ctor under this Contract. It is the obligation of Contractor to provide notice of the insurance requirements to every subcontractor and to receive proof of insurance prior to allowing any subcontractor to begin wo rk. Su ch proof of ins urance must be maintained by Contractor through the entirety of this Contract for inspection by County representative(s) at any reasonable time.
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All self-insured retentions (SIRs) shall be clearly stated on the Certificate of Insurance. Any self- insured retention ( SIR) in a n amount i n excess of Fifty Thousand Dollars ($50,000) shall specifically be approved by the County’s Risk Manager, or designee, upon review of Contractor’s current audited financial r eport. If Contractor’s SIR is approved, Contractor, in addition to, and without l imitation of, any other indemnity provision(s) in this Contract, agrees to all of the following:
1. In addition to the duty to indemnify and hold the County harmless against any and all liability, claim, dem and or suit resulting from Contra ctor’s, i ts agents, employee’s or subcontractor’s performance of this Contract, Contractor shall defend the County at its sole cost and expense with counsel approved by Board of Supervisors against same; and
2. Contractor’s duty to defend, as stated above, shall be absolute and irrespective of any duty to indemnify or hold harmless; and
3. The provisions of California Civil Code Section 2860 shall apply to any and all actions to which the duty to defe nd stated above applies, and t he Contractor’s SIR provision shall be interpreted as though the Contractor was an insurer and the County was the insured.
If the Contractor fails to maintain insurance acceptable to the County for the full term of this Contract, the County may terminate this Contract.
Qualified Insurer
The policy or policies of insurance must be issued by an insurer with a minimum rating of A - (Secure A.M. Best's Rating) and VIII (Financial Size Category as determined by the most current edition of the Best's Key Rating Gu ide/Property-Casualty/United States or ambest.com). It is preferred, but not mandatory, that the insurer be licensed to do business in the state of California (California Admitted Carrier).
If the insurance carrier does not h ave an A.M. Best Rating of A -/VIII, the CEO/Office o f Risk Management re tains the right to approve or reject a carrier after a review of the company's performance and financial ratings.
The policy or policies of insurance maintained by the Contractor shall provide the minimum limits and coverage as set forth below:
Coverage Minimum Limits
Commercial General Liability $1,000,000 per occurrence $2,000,000 aggregate
Automobile Liability including coverage
for owned, non-owned and hired vehicles $1,000,000 per occurrence Workers Compensation Statutory
Employers Liability Insurance $1,000,000 per occurrence Required Coverage Forms
The Commercial General Liability coverage shall be written on Insurance Services Office (ISO) form CG 00 01, or a substitute form providing liability coverage at least as broad.
The Business Auto Liability coverage shall be writte n on ISO form CA 00 01, CA 00 05, CA 0012, CA 00 20, or a substitute form providing coverage at least as broad.
Required Endorsements
The Commercial General Liability policy shall contain the following endorsements, which shall accompany the Certificate of Insurance:
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1. An Additional Insured endorsement using ISO form CG 20 26 04 13or a form at least as broad naming the County of Or ange its elected and appointed officials, officers, agents and employees as Additional Insureds, or provide blanket coverage, which will state AS REQUIRED BY WRITTEN CONTRACT.
2. A primary non -contributing endorsement using ISO form CG 20 01 04 13, or a for m at least as broad evidencing that the Contractor’s insurance is primary and an y insurance or self-insurance maintained by the County of Orange shall be excess and non-contributing.
The Workers’ Compensation policy shall contain a waiver of subrogation en dorsement waiving all rights o f subrogation against the County of Orange , its elected and appointed officials, officers, agents and employees or provide blanket coverage, whi ch will s tate AS REQUIRED BY WRITTEN CONTRACT.
All insurance policies required b y this Contract shall waive al l rights of subrogatio n against t he County of Orange, its elected and appointed officials, officers, agents and employees when acting within the scope of their appointment or employment.
Contractor shall notify County in writi ng within thirty (30) days of any policy cancellatio n and ten ( 10) days for no n-payment of premium and provide a copy of the cancellation notice to County. Failure to provide written notice of cancellation may constitute a material breach of the Contract, upon which the County may suspend or terminate this Contract.
The Commercial General Liability policy shall contain a “Severability of Interests” clause also known as a “Separation of Insureds” clause (standard in the ISO CG 0001 policy).
Insurance certif icates should be forwarded to the agency/department address li sted on th e solicitation.
If the Contractor fails to provi de the insurance certificates and endorsements within seven (7) days of notification by CEO/ Procurement or the agency/department procurement division, award may be made to the next qualified vendor.
Insurance certificates should be emailed to [email protected].
Insurance certificates should state:
County of Orange
c/o: CEO/County Procurement Office
Attn: Insurance
400 West Civic Center Drive, 5th Floor
Santa Ana, CA 92701
County expressly retains the right to require Contractor to increase or decrease insurance of any of the above insurance types throughout the term of this Contract . Any increase or decrease in insurance will be as deemed by C ounty of Orange Risk Manager as appropriate to adequa tely protect County.
County shall notify Contractor in writing of changes in the insurance requirements. If Contractor does not deposit co pies of acceptable Certificate s of Insurance and end orsements w ith Count y incorporating such changes within thirty (30) days of receipt of such notice, this Contract may be in breach without further notice to Contractor, and County shall be entitled to all legal remedies.
The procuring of such required poli cy or polic ies of in surance shall not be construed to limit Contractor's liability hereunder nor to fulfill the indemnification provisions and requirements of this Contract, nor act in any way to reduce t he policy coverage and limits available from the insurer Contractor will need to comply with the following insurance requirements if making the deliveries to the County of Orange. No insurance is required if a common carrier makes deliveries to the County of Orange.
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P. CHANGES: Contractor shall make no chang es in the work or perform a ny additional work without the County’s specific written approval.
Q. CHANGE OF OWNERSHIP: Contractor agrees that if there is a change or transfer in ownershi p of Contractor’s business prior to completion of this Contract, and the County ag rees to a n assignment of the Contract, the new owners s hall be required under the terms o f sale or other instruments of transfer to assume Contractor’s duties and obligations contained in th is Contract and complete them to the satisfaction of the County.
County res erves the right to immediately terminate the C ontract in the ev ent the County determines that the a ssignee is not qualified or is otherwise unacceptable to the Count y for the provision of services under the Contract.
In addition, Contrac tor has t he duty t o notify the County in writing of any change i n the Contractor’s status with res pect to name change s that do not require an assignment of the Contract. The Contract or is also oblig ated to notify the County in writ ing if the Contractor becomes a p arty to any litigation against the County, or a party t o litigation that may reasonably affect the Contracto r’s perfo rmance under the Contract, as well as any potential confl icts of interest between Contractor and County th at may arise prior to or during the period of Contract performance. While Contractor wil l be r equired to provide this info rmation without pro mpting from the County any time there is a change in Contractor’s name, conflict of interest or litigation status, Contractor must also provide an update to the County of its status in these areas whenever requested by the County.
The Contractor shall ex ercise reasonable care and diligence to prevent any actions or con ditions that could result in a conflict with Coun ty interests. In addition to the Contractor, this obligation shall apply to the Contrac tor’s employees, agents, and subco ntractors associate d with th e provision of goods and services provided under this Con tract. The Cont ractor’s efforts shall include, but not be limited to est ablishing rules and procedures preventing its employees, agents, and s ubcontractors from providing or offering gifts , entertainment, payments, loans or other considerations which could be deemed to influence or appear to influence County staff or elected officers in the performance of their County.
R. FORCE MAJEURE: Contractor shall not be assessed with liquidated damages or unsati sfactory performance penalties during any delay beyond th e time named fo r the performance of this Contract caused by any act of Go d, war, civil disorder, employment strike or other cause beyond its re asonable co ntrol, provided C ontractor gives wri tten noti ce of the cause of the delay to County within 36 hours of the start of t he delay and Contractor avails him self of any available remedies.
S. CONFIDENTIALITY: Contractor agrees to maintain the confi dentiality of all County and County- related records a nd inform ation pursuant to all statutory laws relating to privacy and confidentiality that currently exist or exist at any time during the term of this Contract. All such records and information shall b e considered confidential and kept confidential by Contractor and Contractor’s staff, agents and employees.
T. COMPLIANCE WITH LAWS: Contractor represents and warrants th at services to be provid ed under this Contract shall fully comply, at Contractor’s expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations (collectively “laws”), including, but not limited to those issued by County in its governmental capacity and all other laws applicable to the services at the ti me services are provided to and ac cepted by County. Contractor acknowledges that County is relying on Contractor to en sure such compliance, and pursuant to the requirements of Article “Z” below, Con tractor a grees th at it shall defend, indemnify and hold County and County INDEMNITEES harmless from all liability, damages, costs and expenses arising from or related to a violation of such laws.
U. FREIGHT (F.O.B. DESTINATION): Prior to the County’s express acceptance o f de livery of products, Contractor assumes full responsibility for all trans portation, transportation scheduling, County of Orange Page 7 of 25 RCA-017-22010155
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packing, handling, insurance, and o ther services associated with delivery of all products deemed necessary under this Contract.
V. SEVERABILITY: If any term, covenant, condition or provision of this Contract is held by a court of competent jurisdiction to be invalid, void, or unenforceable, th e remainder of the provisions hereof shall remain in full for ce a nd effect and shall in no way be affected, impaired or invalidated thereby.
W. ATTORNEY FEES: In any action or proceeding to enforce or inte rpret any provision of this Contract, each party shall bear their own attorney’s fees, costs and expenses.
X. INTERPRETATION: This Contract has been ne gotiated at a rm’s length and between persons sophisticated and knowledgeable in the matte rs dealt with in th is Contra ct. In addition, each party had been represented by experienced and knowledgeable independent legal counsel of their own choosing o r has k nowingly declined to seek su ch counsel despite being encouraged and given the o pportunity to do so. Each pa rty furth er acknowledges that they have not been influenced to any extent whatsoever in executing this Contract by any other party hereto or by any person representing them, or both. Accordingly, any rule or law (including Cal ifornia Civil Code Section 1654) or legal decision that would require interpretatio n of any ambiguities in this Contract against the party that has drafted it is not appl icable and is waived. T he provisions of this Contract shall be interpreted in a reaso nable manner to affect the purpose of the parties and this Contract.
Y. EMPLOYEE ELIGIBILITY VERIFICATION: Contractor warrants that it fully compl ies with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its emp loyees performing w ork under this Contract meet the citizenship or alien status requirement set forth in Fe deral statutes and regulati ons. The Contractor shall obtain, from all employees performing work hereunder, all verification and other docu mentation of employment eligibility status required by Federal or State statutes and regulations including, but not limited to, the Immigration Reform and Control Act of 1986, 8 U.S.C. §1324 et seq., as they currently exist and as they may be hereafter amended. The Contractor shall retain all such documentation for all covered employees for the period prescribed by the law. The Contractor shall i ndemnify, defend with counsel approved in writing by County, and hold harmless, the County, its agents, officers , and employees from employer sanctions and any other liability which may be assessed against the Contractor or the County or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for em ployment o f any persons perfo rming work under this Contract.
Z. INDEMNIFICATION PROVISIONS: Contractor agrees to indemnify, defend with counsel approved in writing by Count y, and hold County, its elected and appointed officials, officers, employees, agents and those s pecial districts an d agencies which County’s Board of Supervisors acts as the governing Board (“County Inde mnitees”) harmless from any claims, demands or liabil ity of any kind or nature, including but not limited to personal injury or property da mage, arising from or related to the s ervices, products or other performance provid ed by Co ntractor pursuant to this Contract. If judgment is e ntered against Contractor and Cou nty by a court of competent jurisdiction because of the concurrent active negli gence of C ounty or County Ind emnitees, Contractor and County agree that liability w ill be a pportioned as determined b y the court.
Neither party shall request a jury apportionment.
AA. AUDITS/INSPECTIONS: Contractor agrees to permit the County’s Auditor -Controller or t he Auditor-Controller’s aut horized rep resentative (incl uding auditors fro m a priv ate auditing firm hired by the County) access during normal working hours to all books, accounts, records, reports, files, financial records, supporting documentatio n, includi ng payroll and acco unts payable/receivable records, and other papers or property of Contractor for the purpose of auditing or inspecting any aspect of performance under this Contract. The inspection and/or audit will be confined to those matters connected with the performan ce of th e Contract including, but no t limited to, the costs of administering the Contract. The County will provide reasonable notice of such an audit or inspection.
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BB. CONTINGENCY OF FUNDS: Contractor acknowledges that funding or portions of funding for this Contract may be contingent upon state budget approval; receipt of funds from, and/or ob ligation of funds by, the s tate of California to County; and inclusion of sufficient funding for the services hereunder in the budget appro ved by County’s Board of Supervisors for each fiscal year covered by this Contract. If suc h ap proval, funding or app ropriations are not forthco ming, or are otherwise limited, County may immediately terminate or modify this Contract without penalty.
CC. EXPENDITURE LIMIT: Contractor shall notify the County of Orange assigned Deputy Purchasing Agent in writing when the expend itures against the Contract reach 75 percent of the dollar l imit on the Contract. T he County will not be responsible for any expenditure o verruns and will not pay for work exceeding the dollar limit on the Contract unless a change order to cover those costs has been issued.
ADDITIONAL TERMS AND CONDITIONS:
1. SCOPE OF CONTRACT: This Contract specifies the contractual terms and conditions by wh ich the County will procure goods/services from Contractor as further detailed in the Scope of Work, identified and incorporated herein by this reference as Attachment A.
2. TERM OF CONTRACT: The initial term of this Contract shall become effective March 1, 2023 and shall continue for five (5) calendar years, unless otherwise terminated by County.
3. AMERICANS WITH DISABILITIES ACT (ADA): Section 504 of the Rehabilitation Act of 1973 as amended; Title VI and VII of the Civil Rights Act of 1964 as amended; Americans with Disabilities Act, 42 USC 121 01; California Code of Regul ations, Title 2, Title 22: Californ ia Government Code, Sections 11135, et seq ; and other fede ral and state laws and executiv e orders prohibit discrimination. All programs, ac tivities, employment opportunities, and services must be m ade available to all persons, including persons with disabilities
4. AUTHORIZATION WARRANTY: The Contractor represents and warrants that the person executing this Contract on behalf of and for the Contractor is an authorized agent who has actual authority to bind the Contractor to each and every term, condition and o bligation of this Contract and that all requirements of the Contractor have been fulfilled to provide such actual authority
5. BREACH OF CONTRACT: The failure of the Contractor to comply with any of the provisions, covenants or conditions of this Contract shall be a material breach of this Contract. In such event the County may, and in addition to any other remedies availa ble at law, in equity , or otherwise specified in this Contract:
a. Terminate the Contract immediately, pursuant to Section K herein; b. Afford the Contractor written notice of the breach and ten calendar days or such shorter time that may be specified in this Contract within which to cure the breach; c. Discontinue payment to the Contactor for and during the period in which the Contractor is in breach; and
d. Offset against any monies billed by the Contractor but yet unpaid by the County those monies disallowed pursuant to the above.
6. CAL-OSHA VEHICLE REGULATION: All vehicles must meet California Motor Vehicle and Cal- OSHA regul ations and all other appli cable codes requi red for vehicl e use on th e roa ds or highways in the state of California.
7. CIVIL RIGHTS: Contractor attests that services p rovided sh all be in accordance with the provisions of Title VI and Title VII of th e Civil Rights Act of 1964, as amen ded, Section 504 of the Rehabilitation Act of 1 973, as am ended; the Age Discrimination Act of 197 5 as amended; Title I I of the Americans wi th Disabilities Act of 1990, and other applicable Stat e and federal laws and regulations prohibiting discrimination on the basis of race, color, national origin, ethnic group identification, age, religion, marital status, sex or disability.
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8. CONFLICT OF INTEREST–CONTRACTOR’S PERSONNEL: The Contractor shall ex ercise reasonable care an d diligence to prevent any actio ns or conditions that c ould result in a c onflict with the best interest s of t he Coun ty. This o bligation sh all apply to the Contractor ; the Contractor’s employees, ag ents, and subcontractors associat ed with acc omplishing wor k a nd services hereunder. The C ontractor’s efforts sha ll i nclude, but no t be limited to establishing precautions to prevent its employees, agents, and subcontractors from providing or offering gifts, entertainment, payments, loan s or other considerations which coul d be deemed to influe nce or appear to influence County staff or elected officers from acting in the best interests of the County.
9. CONFLICT OF INTEREST– COUNTY PERSONNEL: The County of O range Board of Supervisors policy prohibits its employees from engaging in activities invo lving a conflict of inte rest. The Contractor shall no t, during the peri od of this C ontract, employ any County employee for any purpose.
10. CONTRACTOR WORK HOURS AND SAFETY STANDARDS: The Contractor sha ll ensure compliance wit h all safety and hourly requirem ents for employees in ac cordance with federal, state and County’s safety regulations and laws.
11. CONTRACTOR PERSONNEL REFERENCE CHECK: The Contractor warrants that al l persons employed to provide ser vice under t his Contract have satisfactory past work reco rds indicating their abi lity to adequately perform the work under this C ontract. Co ntractor’s e mployees assigned to thi s project must meet character standards as dem onstrated by background investigation and reference checks, coordinated by the agency/department issuing this Contract.
12. CONTRACTOR’S EXPENSE: The Contractor will be re sponsible for a ll costs related to photo copying, telephone communications, fax communications, and parking while on Count y sites during the performan ce of work and services under this Contract. The Co unty will not provide free parking for any service in the County Civic Center.
13. CONTRACTOR PERSONNEL UNIFORMS/BADGES/IDENTIFICATION: The Contractor warrants that all pe rsons em ployed to p rovide ser vice un der this C ontract have satisfactory past wo rk records indicating their ability to adequately perform the work under this Contract.
All Contractor’s employees shall be requ ired to wea r uniforms, badges or other means of identification which are to be furnished by t he contractor and must be worn at all times while working on Cou nty property. The assigne d Depu ty Purchasing Agen t m ust b e no tified in writing, within seven days of notification of award of Contract, of the un iform and/or badges and/or ot her ide ntification to be worn by employees prior t o beginni ng work and notified i n writing seven days prior to any changes in this procedure.
14. CONTRACTOR’S RECORDS: The Contractor shall keep true and accurate accounts, records, books a nd data whi ch shall c orrectly reflect the business transacted by the Co ntractor in accordance with gen erally accepted accounting principles. These reco rds shall be stored in Orange County for a period of three ( 3) years after final payment is rece ived from the Count y.
Storage of re cords in a nother county will require writte n approval from the County of O range assigned Deputy Purchasing DPA.
15. CONDITIONS AFFECTING WORK: Contractor shall be responsible for taking all steps reasonably necessary to ascertain the nature and location of the work to be performed under this Contract and to know the general conditions, which can affect the work or the cost thereof. Any failure by the Contractor to do so will not relieve Contractor from responsibility for successfully performing the work withou t additional cost to the Count y. The County assumes no responsibility for any understanding or representations concerning the nature, location(s) or general conditions made by any of its officers or agents prior to t he execution of this C ontract, unless such understanding or representations by the County are expressly stated in the Contract.
16. COUNTY OF ORANGE LOCAL SMALL BUSINESS PREFERENCE REQUIREMENTS: Contractor certifies it is in compliance with County of Orange Local Small Business Preference requirements at the time this Contract is executed.
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17. DATA – TITLE TO: All materials, documents, data or information obtained from the County data files or any County medium furnished to the Contractor in the performance of this Contract will at all times remain the property of th e County. Such data or information ma y not be used or copied for direct or indirect use by the Contractor after completion or termination of this Contract without the express written consent of the County. All materials, documents, data or information, including copies, must be returned to the County at the end of this Contract.
18. DEBARMENT: Contractor shall certi fy that neither Contracto r nor its principles are pr esently debarred, proposed for debarment, declar ed ineligible or voluntarily exc luded from participation in the transaction by any F ederal department or agency. Where Contractor as the recipient of federal funds, in unable to ce rtify to any of the stateme nts in the certification, Contractor must include an explanation with the bid/pr oposal. Debar ment pendin g debarment, declared ineligibility or voluntary exclusion from participation by any Federal department of agency may result in the bid/proposal being deemed non-responsible.
19. DEFAULT: In case of default by Contractor, the County of Orange may procure the services from other sources. If the cost for those goods and/or services is high er than under the terms of the existing Contract, Contractor will be r esponsible for paying the County the difference between the Con tract cost and th e price paid, and the Cou nty may deduct this cost fr om any unpaid balance due the Contractor. The price p aid by the County shall be the prevailing market price at the time suc h purchase is made. This is in addition to any other remedies available under t his Contract and under law.
20. DELIVERY LOCATION – NO LOADING DOCK: Delivery locations may not have loading d ocks.
The Contract or is re quired to make all necessary arr angements for lift trucks or other means necessary to complete delivery. Inside delivery to secured facilities may be required.
21. COUNTY OF ORANGE DISABLED VETERAN BUSINESS ENTERPRISE PREFERENCE REQUIREMENTS: Contractor certifies it is in compliance with County of Orange Disable Veteran Business Enterprise Preference requirements at the time this Contract is executed.
22. DISPUTES – CONTRACT:
a. The parties shall deal in good faith and attempt to resolve potential disputes informally. If the dispute concerning a question of fact arising under the terms of this Contract is no t disposed of in a re asonable period of time by the Contractor’s Project Manager and the Count y‘s Project Manager, such matter shall be br ought to the at tention of t he Co unty Deputy Purchasing Agent by way of the following process:
i. Contractor shall submit to the agenc y/department assigned Deputy Purchas ing Agent a written demand for a final decision regarding the disposition of any dis pute between the parties arising under, related to, or involving this Contract, unless the County, on its own initiative, has already rendered such a final decision. ii. Contractor’s written demand shall be fu lly supported by factual information, and, if such demand involves a cost adjustment to the Contract, the Contractor shall include with the demand a written statement signed by a senior official indicating that the demand is made in good faith, that the su pporting data are accurate and complete, and that t he amo unt requested accurately reflects t he Contract ad justment for whi ch the Contractor believes the County is liable.
b. Pending the fina l resolut ion of a ny dispute arising under, related to, or involving t his Contract, the Contractor agrees to diligently proceed with the provision of services under this Contract. The Contractor’s failure to diligently proceed shall be considered a material breach of this Contract.
Any final decision of the County shall be expressly identified as such, shall be in writing, and shall be signed b y the County Deputy Purchasing Agent or his desig nee. If the County fails to render a decision within 90 days afte r receipt of the Contractor’s demand, it shall be deemed a final decision adverse to the Contractor’s contentions. Not hing in this section shall be construed County of Orange Page 11 of 25 RCA-017-22010155
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as affecting the County’s right to terminate the Contract for cause or termination for convenience as stated in section K herein.
23. DRUG-FREE WORKPLACE: The Contractor hereby certifies compliance with Government Code Section 8355 in matters relating to providing a drug-free workplace. The Contractor will:
a. Publish a statement notifying emplo yees that u nlawful manufactu re, distribution, dispensation, possession, or use of a controlled substance is prohibited and specifying actions to be take n against em ployees f or violations, as requi red by Government Code Section 8355(a)(1).
b. Establish a drug-free awareness program as required by Government Code Section 8355(a)(2) to inform employees about all of the following:
i. The dangers of drug abuse in the workplace;
ii. The organization’s policy of maintaining a drug-free workplace; iii. Any available counseling, rehabilitation and employee assistance programs; and iv. Penalties that may be imposed upon employees for drug abuse violations. c. Provide as required by Government Code Section 8355(a)(3) that every employee who works under this Contract:
i. Will receive a copy of the company’s drug-free policy statement; and ii. Will agree to abide by the terms o f the company’s statement as a condition of employment under this Contract.
d. Failure to comply with the se requirements may result in suspension of payments under the Contract or termination of the Contract or both, and the Contractor may be ineligible for award of any future County cont racts if the County determines that any of the following has occurred:
i. The Contractor has made false certification, or
ii. The Contractor violates the certification by failing to carry out the requirements as noted above.
24. ERRORS A ND OMISSIONS: All reports, fi les and other documents prepared and submi tted by Contractor shall be complete and shall be carefully c hecked by the professional(s) identified by Contractor as project m anager and key personnel attached hereto, prior to submi ssion to the County. Contractor agrees that County review is discretionary, and Contractor shall n ot assume that the County will dis cover errors and/or omissions. If the Count y discovers any errors o r omissions prior to approving Contractor’s reports, fil es and other written documents, the reports, files or documents will be returned to Contractor for correction. Should the County or o thers discover errors or omissions in the r eports, fil es or other w ritten documents submitted by the Contractor after Count y approval the reof, County app roval of Contractor’s reports, files or documents shall not be used a s a defense by Contractor in any a ction between the County and Contractor, and the reports, files or documents will be returned to Contractor for correction
26. EQUAL EMPLOYMENT OPPORTUNITY: Contractor shall comply with U.S. Executi ve Order 11246 entitled, “Equal Employment Opportunity” as am ended by Executive Order 11375 and as supplemented in Department of Labor regulations (41 CFR, Part 60 ) and appli cable stat e of California regulations as may now ex ist or be amen ded in the future . The Contractor shall not discriminate against any employee or appl icant for employment on the basis o f race, col or, national origin, ancestry, religion, sex, ma rital statu s, political affiliation or physical or mental condition.
Regarding handicapped pe rsons, the Contractor will not discriminate against any emplo yee or applicant for employme nt because of physical or mental handicap in regard to any position for which the employee or applicant for employment is qualified. T he Contractor agrees to provide County of Orange Page 12 of 25 RCA-017-22010155
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equal opportunity to handi capped persons in employment or in advancement in employment or otherwise tre at qualifie d handicapped individuals wi thout discrimination based upon their physical or menta l handicaps in a ll employment practices s uch as the follow ing: employment, upgrading, promotions, transfers, recruitme nts, advertising, layoffs, te rminations, rate of pay o r other forms of compensation, and selection for training, including apprenticeship. The Contractor agrees to comply with the provisions of Sections 503 and 504 of the Rehabilitation Act of 1973, as amended, pertaining to prohibition of discrimination against qualified handicapped persons in all programs and/or activities as detailed in regulations signed by the Secretary of the Department of Health and Human Services effective June 3, 1977, and found in the Federal Register, Volume 42, No. 68 dated May 4, 1977, as may now exist or be amended in the future.
Regarding Americans with disabilities, Contractor agrees to comply with applicable provisions of Title 1 of the Americans with Disabilities Act enacted in 1990 as may now exist or be amended in the future.
27. EQUIPMENT MAINTENANCE SERVICE: Cleaning, ins pecting, re placing al l worn parts, lubricating, tes ting, an d a djusting will be provided as re quired to maintain the equi pment in satisfactory operating co ndition. The Contractor inspections will b e completed during Count y work hours and will be coordinated with the agency/department having control of the equipment.
Emergency service required and performed during normal bu siness hours is included at no ext ra charge. The Contractor shall list any p arts that a re not consid ered p art of th is equipment maintenance price agreement.
28. GRATUITIES: Contractor warra nts that no gratuities, i n the form of ent ertainment, gifts or otherwise, were offered or given by the Contractor or any agent or re presentative o f the Contractor to any officer or employee of the County with a view toward securing the Contract or securing favorable treatment with respect to any d eterminations concerning th e performance of the Contract. Fo r breach or violation of this warranty, the County shall have the r ight t o terminate the Contract, either in whole or in part, and any loss or damage sustained by the County in p rocuring on the o pen market any goods or ser vices which the Contractor agreed to supply shall be borne and paid for by the Contractor. The rights and remedies of the County provided in the clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under the Contract.
29. HAZARDOUS CONDITIONS: Whenever the Contractor’s operations create a condition hazardous to traffic or t o the public, the Contractor shall provide flagmen and furnish, erect a nd maintain control devic es as are necessa ry to prevent accidents or damage or injury to the public at Contractor’s expense and with out cost to th e County. The Contractor shall comply with County directives regarding potential hazards.
Emergency lights and traffic cones must also be readily available at all times and must be used in any hazardous condition. Emergency traffic cones must be placed in front of and behind vehicles to warn oncoming traffic.
Signs, lights, flags, and other wa rning and safety devices shall conform to the requirements set forth in Chapter 5 of the current traffic manual, Traffic Control for Construction and Maintenance Work Zones, published by the state of California Department of Transportation.
30. INTERPRETATION: This Contra ct has been negotiated at ar m’s length and be tween persons sophisticated and knowledgeable in the matters dealt wi th in this Contract. In addition, each party had been represented by experienced and knowledgeable independent legal counsel of their own cho osing or has knowingly decli ned to seek such counsel despite being encou raged and given the opportunity to do so. Each party further a cknowledges th at they h ave not been influenced to any extent whatsoever i n executing this Contract by any ot her party her eto or by any person representing them, or bo th. Accordingly, any rule or law (including California Civil Code Section 1654) or legal decision that would require interpretation of any ambiguities in this Contract against the par ty that has dr afted it is n ot applicable and is waived. The provisions of County of Orange Page 13 of 25 RCA-017-22010155
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this Contract shall be i nterpreted in a reasonable manner to effect the purpose of the parties and this Contract.
31. LOBBYING: On the best inf ormation and belief, Contractor certifies no federal ap propriated funds have been paid or will be paid by, or on behalf of, the Contractor to any person influencing or attempting to influence an officer or employee of Congress; or an employee of a member of Congress in connec tion with t he awardin g of any feder al contract, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement.
32. MATERIAL SAFETY DATA SHEETS (MSDS): The Contractor is required to provide a completed Material Safety Data Sheet ( MSDS) for each hazardous substance provided to the Coun ty under the Contractor’s Contract with the County. This includes hazardous s ubstances that are not directly included in the Contract but are included in the g oods or services pro vided by th e Contractor to the Coun ty. The pro vision of the MSDSs must be i n accordance with the requirements of Califo rnia Labor Code Sections 6380 thro ugh 6399 , General Industry Sa fety Order Section 5194, and Title 8, California Code of Regulations. The MSDSs for each substance must be sent to the place of shipment or provision of goods/services and must also be sent to:
County of Orange
CEO/Risk Management
Attn: Safety and Loss Prevention Program
PO Box 327
Santa Ana, CA 92702
33. NEWS/INFORMATION RELEASE: Contractor agrees that it will n ot issue any news releases in connection with either the award of this Contract or any subsequent amendment of or effort under this Contract without first obtaining review and written approval of said news releases from th e County through the County’s Project manager.
34. NOTICES: Any and all notices , requests deman ds and other communications contemplated, called for, permitt ed, or re quired to be given he reunder shall be in wr iting, except through the course of the parties’ pr oject managers’ routine exchange of information and cooperation during the terms of the work and services. Any written communications shall be deemed to have been duly given upon act ual in-person delivery, if delivery is by d irect hand, or upon delivery o n the actual day of receipt or no greater than four calendar days after bein g mailed by US c ertified or registered mail, return receipt requested, postag e prepaid, whichever occurs fi rst. The dat e of mailing shall count as th e first day. All communicatio ns shall be addressed to the appro priate party at the address stated herein or such other ad dress as the parties hereto may designate by written notice from time to time in the manner aforesaid.
Contractor: DS Services of America, DBA Primo Water North America Attn: Anthony Baza-Fainn
2300 Windy Ridge Pkwy, Ste. 500N
Atlanta, GA 30339
Phone: (770) 984-6948
Email: [email protected]
For County: County of Orange
County Procurement Office
Attn: Robert Esparza, Deputy Purchasing Agent
400 West Civic Center Drive, 5th Floor
Santa Ana, CA 92701
Phone: (714)-567-5153
Email: [email protected]
35. ORDER DATES: Orders may be placed during the term of the Contract even if delivery may not County of Orange Page 14 of 25 RCA-017-22010155
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be made until after the term of the Contract. The Contractor must clearly identify the order date on all invoices to County and the order date must precede the expiration date of the Contract.
36. OWNERSHIP OF DOCUMENTS: County has permanent ownership of all directly connected and derivative materials produced under this Contract by the Contractor. All documents, reports and other incidental or derivative work or materials furnished hereunder shall become and remain the sole property of the County and may be used by the County as it may require without additional cost to t he County. None of the docume nts, reports and othe r incidental or derivative work or furnished materials shall be used by the Contractor without the ex press written consent of the County.
37. PRECEDENCE: The Contract documents consist of this Contract and its exhibits and attachments.
In the event of a conflict between or among the Contract documents, the order of precedence shall be the provisions of the main body of this Contract, i.e., those provisions set forth in the recitals and articles of this Contract, and then the exhibits and attachments.
38. PROJECT MANAGER, COUNTY: The County shall app oint a project man ager to a ct as liaison between the County and the Contractor during the term of this Contract. The County’s project manager shall coordinate the activities of the County staff assigned to work with the Contractor.
The County’s project manager shall have the right to require the removal and replacement of the Contractor’s project manager and key personnel. The County’s pro ject manager shall notify the Contractor in w riting of such action. The Contractor shall accomplish the removal with in three (3) business days after written notice from the County’s project manager. The C ounty’s project manager shall review and approve t he appointment of the replaceme nt for the Con tractor’s project mana ger and key per sonnel. Said a pproval shall not be unreasonably with held. The County is not requir ed to pro vide any additional information, reason or rat ionale in the event it requires the removal of Contractor’s Project Manager from providing further services under the Contract.
39. PROJECT MANAGER AND KEY PERSONNEL, CONTRACTOR: Contractor shall appoint a Proj ect Manager to dire ct the Contract or’s efforts i n fulfilling Contractor’s obliga tions under this Contract. This Project Manager s hall be subject to a pproval by the Co unty and shall not be changed without the written consent of the County’s Project Manager, which consent shall not be unreasonably withheld.
The Contractor’s Project Manager shall be assigned to this project for the duration of the Contract and shall dilig ently pursue all work and servic es to meet the projec t time lines. The County’s Project Manager shall have the right to re quire the removal and replacement of the Contr actor’s Project Manager from prov iding services to the County unde r this Contract. The County’s Project manager shall notify the Contractor in wr iting of such action. The Con tractor sh all accomplish the remov al within thre e (3) business days after writte n n otice by the County’s Project Manager. The Cou nty’s Project Ma nager shall review an d approve the appointment of the replacement for the Contractor’s Project Manager. The County is not required to provide any additional information, reason or rationale in the event it requires the rem oval of Contracto r’s Project Manager from providing further services under the Contract.
40. REGIONAL COOPERATIVE CONTRACT: The provisions and pricing of thi s Contrac t will be extended to other g overnmental entities. Governmental entities wishing to use this Con tract will be responsible for issuing their own purchase documents, providing for their own acceptance, and making any subsequent payments. Contractor shall b e required to i nclude in any subordinate contract entered into with another governmental entity pursuant to this Contract, a contract clause that wi ll h old harmless the County of Orange from all claims , demands, actions or causes of actions of every kind resulting directly or indirectly, arising out of, or in any way c onnected with the use of this Con tract. Failure to do so will be considered a mate rial breach of this Contract and grounds for immediat e Contract termination. Governmental entities are respo nsible for obtaining all cert ificates of insu rance, endorsements and bonds required. The Parties agree that any other governmental entity utilizing this Contract shall not be deemed to be an agent or County of Orange Page 15 of 25 RCA-017-22010155
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employee of County for any purpose whatsoever. The Contractor is resp onsible for pr oviding each governmental entity a copy of this Contract upon request. The County of Orange makes no guarantee of usage by other users of this Contract.
The Contractor sh all be required to maintain a list of the Coun ty of Ora nge departments and governmental entities using this Contract. The list shall report dollar volumes spent annually and shall be provided on an annual basis to the County, at the County’s request.
41. SUB-CONTRACTING: No performance of this Cont ract or a ny p ortion thereof may be subcontracted by the Contractor without the express written consent of the County. Any attempt by the C ontractor to subcontract a ny performance of this Contract without the express writ ten consent of the County shall be invalid and shall constitute a breach of this Contract.
In the event that th e Contractor is authorized b y the County to s ubcontract, this Contract shall take precedence over the terms of the Contract between Contractor and subcontractor and shall incorporate by reference the terms o f this Contract. The County shall look to the Co ntractor for performance an d i ndemnification and not deal dire ctly with an y subcontr actor. All work performed by a subcontractor must meet the approval of the County of Orange.
42. SUBSTITUTIONS: The Contract or is required to meet all specifications and req uirements contained herein. No substitutions will be accepted without prior County written approval.
43. TERMINATION ORDERLY: After receipt of a termination notice from the County of Orange, the Contractor may submit to the County a termination claim, if appl icable. Such claim shall be submitted promptly, but in no event later than 60 days from the effective date of the termination, unless one or more extensions in writing are granted by the County upon written request of the Contractor. Upon termination Cou nty ag rees to pay the Contractor for all ser vices performed prior to termination which meet the requirements of the Contract, provided, however, that such compensation combined wi th previously paid compensa tion s hall not exceed the total compensation set forth in the Contract. Upon te rmination or o ther expiration of this Contract, each party shall promptly return to the other party all papers, materials, and other properties of the other held by each for purposes of performance of the Contract.
44. USAGE: No guarantee is given by th e County to the Contractor regarding usage of this Contract.
Usage figures, if provided, are approx imations. The Contractor agrees to s upply services and/or commodities requested, as needed by the County of Orange, at rates/prices listed in the Contract, regardless of quantity requested.
45. USAGE REPORTS: The Contractor shall submit usage reports on an an nual basis to the assigned Deputy Pur chasing Agent of the County of Orange user age ncy/department. Th e usage report shall be in a format specified by the user agency/department and shall be submitted 90 days prior to the expiration date of the Contract term, or any subsequent renewal term, if applicable.
46. WAIVERS - CONTRACT: The failure of the Cou nty in any one or more instances to insist upon strict performance of any of the terms of this Contract or to exercise any option contained herein shall not be co nstrued as a w aiver or relinquishment to any e xtent of th e right to assert or rely upon any such terms or option on any future occasion.
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ATTACHMENT A
SCOPE OF WORK
I. GENERAL INFORMATION: The County of Orange is comprised of 2 2 Departments and over 18,000 employees located throughout the Count y. The County’s core busi nesses are p ublic safety, public works, construction management, public healt h, environmental protection, regional planning, public assistance, social services and aviation.
Contractor is to provide Bottled Water to various County facilities located throughout the County of Orange on an as needed basis and usage is not guaranteed. Facility locations may be a dded or deleted, and service hours modified at any given time.
Each Department may have different hours of operations, but all non-urgent deliveries shall be done within regular County business hours . All emergency/urgent deliveries shall be coordinated with each respective ordering Department. Contractor is required to provide Bottled Water upon request by any County Department.
II. CONTRACTOR RESPONSIBILITIES:
A. Contractor shall possess all Federal, State and Local permits, licen ses a nd approvals necessary to provide g oods required in the Scope of Work. Any associated fees shall be the responsibility of the Contractor.
B. Contractor shall perform all work i n accordance with industry standards and California State Health and Safety Codes.
C. Bottled water provided under this Contract shall be in compliance with all applicable Local, State and Federal Laws, Food and Drug Administration Regul ations and any other r ule applicable.
D. Contractor shall provide a dedicated account manager/sales re presentative and/or inside customer service representative knowledgeable of the Contract products, to efficiently answer all County questions/inquiries. Con tractor account manage r/sales repr esentative shall be available during regular business hours to assist County with placement of orders, follow-ups and any other areas requiring assistance within the realm of their responsibility.
E. All pricing is to be F.O.B. DESTINATION. No shi pping charges will be authorized for payment for items ordered against this Contract, including items listed under Additional Goods/Products.
F. Contractor shall itemize all applicable Federal and State taxes, as well as any other applicable taxes/fees as separate line items when invoicing. No self-imposed fees shall be accepted.
G. Contractor shall not charge Cou nty for urgent order request s, which will be delivered as promptly as possible.
H. Contractor shall mak e delivery arrangements direc tly with the requesting Department at the location specified on the order. Deliveries are expe cted to be mad e in full. Approv al for delivery of partial o r incomplete orders shal l be obtained prior to deliver y fr om the department placing the order. Partia l deliveries without approval may n ot be accepted and any charges incurred shall be the responsibility of the Contractor.
I. Contractor shall no tify respectiv e ordering department of any order or delivery delays on requested items at the time of order is placed or as soon it is known.
J. Contractor shall bill for items as per Attachment B- Pricing and Compensation. No exceptions shall be made.
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K. Contractor shall be able to provide dispensers in various sizes and types as requested by each County Departments. (Example: Free-standing, countertop, 3-gallons, 5-gallons, etc.) L. Contractor shall provide bottled water and any other product/service listed on this Contract to Water Clubs established in County locations in accor dance with Pricing and the Terms and Conditions of this Contract.
M. Contractor shall invoice Water Club accounts according to the instructions provided by each “Water Club” coordinator. Contractor shall not invoice County for bottled water provided to Water Clubs.
N. Contractor shall maintain, at Contractor’s expense, a telephone answering system, which, at a minimum, provides eight (8) hours p er day, five (5) days per we ek, live coverage from the hours of 7:30 a.m. to 4:30 p.m. and/or an e -mail address to place all requests/orders, as we ll as a contact name and number for 24-hour access phone number for emergency orders.
O. Contractor shall complete all work within regula r County business ho urs, Monday th rough Friday 8:00 a.m. to 5:00 p.m., u nless other arrangem ents are made by County Site Coordinator. Each Department may have different needs due to facility structure and/or hours of operations. Contractor shall accommodate requests based on each Facility needs and hours of operations.
III. DELIVERY INSTRUCTIONS:
A. Contractor shall deliver accord ing to a predetermined schedule and/or as requeste d by each County Department. Delivery requirements may vary by location and shall be specified by each Site Coordinator/Department and accommodated by Contractor. All delivery schedules shall be mutually agreed upon between Contractor and each County Department.
B. Contractor shall perform all deliveries and to act in a safe and professional manner, adhering to all a pplicable Local, State and Federal Laws and th e Food and Drug Admi nistration regulations.
C. There are numerous locations that require delivery thr oughout the County, Contractor shall make delivery arrangements directly with the requesting Department at the location specified on the order. Water Clubs shall also have a site coordinator responsible to coordinate water club deliveries.
D. Contractor shall no t charge County for occasional emerg ency/urgent delivery of bottled water.
IV. DELIVERY LOCATIONS:
A. Contractor shall be responsible for any parking fees at time of delivery services. County shall not provide free parking for delivery services, parking fee s wi ll not be reimbursed, and parking passes shall not be issued.
B. Contractor shall make deli very of goods to any and al l County locati ons throughout the County; C ontractor shall coordinate with ordering department accordi ngly. Contra ctor is required to make deliveries throughout entire County of Orange.
C. Some delivery locations may not have loadi ng docks. The Contractor is required to make all necessary arrangements and means necessary to complete delivery. Inside deliver y to secured facilities may be required.
D. Contractor shall make delivery of go ods to any/all County facility throughout the County for Water Club members.
V. CONTRACTOR PERSONNEL:
A. All Contractor personnel shall be employees of the Contractor and wear uniforms while on County premises. Please refer to Article 13 of this Contract.
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B. Contractor shall ensure that all personnel are trained and licensed as appropriate for the work required to be performed under this Contract . Any fees associated with said licenses an d permits are the sole responsibility of Contractor.
C. Any damages by the Contra ctor to the County’s facility including equipment , furniture, materials or ot her County prop erty will be repaired or replaced by the Contractor to the satisfaction of the County at no cost to County.
D. Contractor shall not allow any personnel under the influence of alcohol or drugs on County premises or in County buildings.
E. Contractor’s personnel shall be courteous to the public and all County personnel.
F. Contractor’s personnel sha ll perform all services in accordan ce with th e Contract and at the direction of the agency/department administrator or Site Coordinator/Supervisor.
G. Contractor’s pe rsonnel shall direct all inquiries and/or requ ests related to the services provided to the department Administrator or Site Coordinator/Supervisor.
VI. PURIFIED WATER SPECIFICATIONS:
A. Deionized wa ter shall be filtered and oz onated. Definition of f iltered – remove organic impurities, metal and other ions in the water.
B. Definitions of ozonated – break down organic constituents and reduce odor potential in water while sanitizing to minimize further mic robial contamination. Distilled water – water is heated until it changes to steam. Steam is allowed to cool down and condense into liquid form again.
VII. PRODUCT SPECIFICATIONS:
A. Contractor shall not charge for bottle deposits, bottle water crates and/or self-imposed fees.
B. Contractor may bill for lost or damaged bot tles a ccording to Attachment B- Pricing and Compensation at the end of Contract and/or periodically as per account reconciliation. This shall be coordinated with each County Department.
C. Cups must be made from certified recycled paper with a minimum 20% post-consumer or higher and must be 100% recyclable.
VIII. ORDERS AND EMERGENCY ORDERS:
A. Contractor shall have the capability to accept orders via email, telephone or fax.
B. Contractor shall not require minim um quantity and/or cost per order. No oth er minimum delivery requirements shall apply. County does not intend to place multiple small orders, but orders shall be placed at the convenience of each Department.
C. County may place Emergency/Urgent order s, whic h are defined as goods require to be delivered as soon a s possible , or within next busi ness day from receiving the call/email, including County observed holidays and weekends.
D. Contractor shall not bill a ny additional fees for emergency/urgent deliveries. During the course of the Contract, departments may require an emergency/urgent order for delivery.
E. All emergency/urgent deliveries sha ll be coordinated with each respective orde ring site coordinator or Department.
F. The Intent of this Contract is for daily operations; however, in an E mergency Event or Declared D isaster by the County, Contract or shall service the County during such a n emergency under the same te rms and conditions th at apply durin g regular s tandard non- emergency/disaster conditions. This Cont ract may be subject to unusu al usage. Emergency Events or Declared Disasters may be rare occurrences.
IX. DISPENSERS:
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A. Contractor shall provide water dispensers at a monthly fee per dispenser to the County.
B. Contract shall provide electric water dispensers at the rates set forth in Attachment B- Pricing and Compensation
C. Contractor prices for dispensers shall include all delivery, set-up, removal of equipment, etc.
D. Contractor shall exchange rented dispensers at County’s request if unsatisfied with dispenser functionality/operation.
E. Contractor shall n ot charge for delivery, set up or pick -up of any dispenser for any reaso n including cancellation of services, dispenser downgrades or upgrades.
F. For dispenser installation: power outlet should be five (5) feet from wall socket.
X. WATER CLUBS, PROCESS AND SET-UP:
A. Contractor shall provide bottled water to Wate r Clubs establishe d in County lo cations in accordance with the Pricing and the Terms and Conditions of this Contract.
B. Water Clubs will be subject to credit approval.
C. Contractor shall invoice water clu bs according to the instructions provided by each “Wate r Club” contact/coordinator. Contractor shall not invoice County for bottl ed water provided to Water Clubs.
D. County assumes no responsibility for deliveries and/or payments from Water Club accounts.
E. Bottled Water provided to Water Clubs shall be for consumption at County locations. Water club members shall not take bottled water home for personal consumption.
F. Water Club coordinators shall be responsible to open accounts, place or ders and resolve any invoice discrepancies. County shall not be held responsible for Water Club accounts.
G. Contractor shall provide the same quality bottled water to Water Club accounts.
H. County assumes no responsibility for deliveries and/or payments from Water Clubs.
I. Water Club contacts shall coordinate with Contractor all billing and delivery arrangements.
Contractor shall not invoice County for bottled water provided to Water Clubs.
J. Water Clubs may be subject to credit approval.
K. Bottled Water provided to Water Clubs shall be for consumption at County locations. Water Club members shall not take bottled water home for personal consumption.
L. For first time account set up/orders, County shall include the following information:
1. Orders shall be clearly identified as “Water Clubs” account.
2. Orders shall provide clear instructions at time of set-up/ordering.
3. Orders shall have a delivery and billing address (if different and/or the same, it must be noted accordingly)
4. Orders shall include a site point of contact and phone number. If different for billing, please list the billing point of contact and phone number.
5. Orders shall list items to be ordered, such as number of coolers, specify type of cooler, number of bottles, size of bottle, etc.
XI. COUNTY RESPONSIBILITIES:
A. County shall appoint a County Site Coordinator/Project Manager for each Department and/or service order, including a telephone number. An additional Co unty phone number shall be provided as a back-up contact.
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B. County Site Coordinator/Project Ma nager shall ensure Contractor acce ss to all service locations and site facilities.
C. County Departments shal l be responsible for amending their subordinate Contracts as facilities may be added or deleted and service hours may be increased or decreased at a given location at any time during the term of the Contact.
D. The County reserves the right to obt ain competitive bids on any material or service and to utilize the data provided under this Contract relative to necessary materials and services.
XII. SECURITY REQUIREMENTS: The County operates sever al se cured faciliti es: most notab le are several Probation, Sheriff and Airport operated sites. Contractors and their employees who perform services in these f acilities will be required to strict oper ation policies and may be required to pass a background c heck prior to their employment du e to security requirem ents fo r certain facilities covered under this Contract. During performanc e of the work, especially at detention facilities, workers shall clos ely monitor all tools, equipment and other materials at a ll times. Workers shall have no contact verbal or phys ical, w ith any in mate of these facilities. These policies have been designed with the primary purpose of ensuring a safe and secure environment for all involved.
A. The Contractor will provide a list of all personnel/employees who will be directly performing tasks associated with the Contract. Contractor’s personnel/employees provid ing service in a secured detention facility, a Probation facility or a Sheriff’s facility, will be expected to pass two (2) se parate background c hecks performed by the Orange County Sheriff’s Department and the Orange County Probation Department. No chang es s hall be authorized to th e approved list without a request in writ ing submitted by the Co ntractor and approved by the County Site Coordinator. At no time w ill unauthorized Contr actor employees perform any task associated with this Contract. If this oc curs, the Contractor will be notified that they have not complied wit h the terms of this Con tract and a re subject to Contract termination.
The list of all Per sonnel/Employees working on C ounty projects shall be submitted prior to award of this Contract.
B. Contractor shall prepare and submit a Security Clearance form to the County Site Coordinator for all persons who will be working on or who will need access to secured facilities.
C. Security Clearance forms shall be submitted at least five (5) working days prior to the start of work or prior to the use of any person subsequent to the start of work.
D. Said Security Clearance forms shall be thoroughly and accurately complete. Omissions or false st atements, regardless of the nature or magnitude, may be grounds for denying clearance.
E. No person shall be employed on this work who has n ot received prior clear ance from t he Probation Department, Sheriff’s Department or John Wayne Airport.
F. The County, John Wayne Airport, the Probation Department and the Sheriff’s Department are not under any obligation to give a reason clearance is denied.
G. The Contractor shall be responsible to sign in with the C ounty Site Coordinator or designee, as required. Upon arrival at any se cure facility (e.g., JWA, Probation) the Contractor shall report to the Central Contro l Center (Control). Contractor personnel shall have no contact, either verbal or physical, with internees in secured detention facilities.
Specifically:
1. Do not give names or addresses to internees.
2. Do not receive any names or addresses from internees.
3. Do not disclose the identity of any internee to anyone outside the facility.
4. Do not give any materials to internees.
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5. Do not receive an y materials from inter nees (i ncluding m aterials to be passed to another individual or internee).
*Failure to comply with these requirements is a criminal act and can result in prosecution.
H. Any Contrac tor personnel/employee( s) en gaged in the p erformance of work under this Contract shall be expected to pass the screening requirements and abide by all of the security requirements s et forth by the Federal Aviation Administ ration (FAA) and the Co unty of Orange.
“The Federal Avia tion Administration (FAA) approve d security program for John Wa yne Airport requires that each person issued a John Wayne Airport security badge is made aware of his/her responsibilities regarding the privilege of access to restricted areas of the airport”.
All persons within the restricted air operation areas of the airport are required to display, on their person, a John Wayne Airpor t security badge, unless they are specifically exempted for reasons or they are under esco rt by a pro perly badge individual. Each airport empl oyee or airport tenant employee who has been issued a John Wayne Airport security badge is responsible for challenging any individual who is not properly displaying an airport issued or approved and valid identification badge. Any perso n who is not properly displaying or who cannot produce a valid J ohn Wayne Airport security badge must immediately be referred to the Sheriff’s Department Airport Detail Office for proper handling.
The John Wayne Airport security badge is the property of the County of Orange and must be returned upon termination of employment at John Wayne Airport. The loss of a badge shall be reported within twenty -four (24) hours to the Sheriff’s Department Airport Dispatch Center (949) 252-5000. A report shall be made before a replacement badge will be issued.
I. All vehicles parked on-site shall be locked and thoroughly secured at all times.
J. All equipment and materials shall remain in the Contractor possession at al l times and shall never be left un attended. All lost or misplaced equipment or materials shall be reported immediately to the (a) security staff or Control in secured detention facilities o r (b) the escort or Control in Sheriff’s facilities.
K. Personnel shall not smoke or use profanity or other inappropriate language while on-site.
L. Personnel sha ll not enter the facil ity while under t he i nfluence of alcohol, drugs or other intoxicants and shall not have such materials in their possession.
M. Personnel shall plan their activities to minimize the number of times they must enter and exit a facility, i.e., transport all equip ment and m aterials needed for the day at the start of work and restrict all breaks to the absolute minimum.
N. Contractor employee(s) shall be well -disposed to the public and County staff utilizing the facilities but shall be responsive only to the requests o f the Coun ty Site Coordinator unless otherwise directed and shall direct all inquiries or requests to the County Site Coordinator.
XII. PRODUCT LIST:
ITEM
NO. PRODUCT DESCRIPTION
DEIONIZED WATER
1. 5 Gallon Bottle (Purified)
2. 5 Gallon Bottle (Spring)
3. 5 Gallon Bottle (Distilled)
4. 3 Gallon Bottle
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ITEM
NO. PRODUCT DESCRIPTION
5. 0.5LT 24PK (Purified)
6. 0.5LT 24PK (Spring)
MISCELLANEOUS ITEMS
7. 9 Oz Flat Cup/Sleeve
(50 Pcs/Sleeve.)
8. 7 Oz Cup/Sleeve
(50 Pcs/Sleeve.)
9. Filtration (22)
ELECTRIC DISPENSERS
10. Top Load Hot & Cold Cooler
11. Bottom Load Hot & Cold Cooler
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ATTACHMENT B
PRICING AND COMPENSATION
I. COMPENSATION: This i s a firm fixed fee Contract between Cou nty and Contractor to provide Bottled Water and Related Product as set forth in Attachment A, “Scope of Work.
The Contractor agrees to ac cept t he specified compensation as set f orth in this C ontract as full payment for performing al l se rvices and furnishing all staffing and m aterials req uired, for any reasonably unforeseen difficulties which may arise or be encountered in the execution of t he services until a cceptance, for risks connected with the servi ces, and for p erformance by the Contractor of all its duties and obligations hereunder. The Contractor shall only be compensated as set forth herein for work performed in accordance with the Scope of Work. The County shall have no obligation to pay any s um in excess o f the Fixed Prices and Total Contract Amount specified herein unless authorized by amendment in accordance with Articles C and P of the County Contract Terms and Conditions, which may require approval by the County Board of Supervisors.
II. PRICING: County will pay the f ollowing fees in accordance with the provisions of this Contract.
Payment shall be as follows:
A. Price List:
ITEM
NO. PRODUCT DESCRIPTION UOM PRICE
DEIONIZED WATER YEAR 1 YEAR 2 YEAR 3 YEAR 4 YEAR 5
1. 5 Gallon Bottle (Purified) Bottle $3.99 $4.49 $4.99 $5.49 $5.99
2. 5 Gallon Bottle (Spring) Bottle $4.49 $4.99 $5.49 $5.99 $6.49
3. 5 Gallon Bottle (Distilled) Bottle $4.49 $4.99 $5.49 $5.99 $6.49
4. 3 Gallon Bottle Bottle $3.99 $4.49 $4.99 $5.49 $5.99
5. 0.5LT 24PK (Purified) Case $5.25 $5.75 $6.25 $6.75 $7.25
6. 0.5LT 24PK (Spring) Case $5.99 $6.49 $6.99 $7.49 $7.99
MISCELLANEOUS ITEMS
7. 9 Oz Flat Cup/Sleeve
(50 Pcs/Sleeve.) Sleeve $3.69 $3.79 $3.89 $3.99 $4.09
8. 7 Oz Cup/Sleeve
(50 Pcs/Sleeve.) Sleeve $3.49 $3.69 $3.79 $3.89 $3.99
9. Filtration (22) Each $24.99 $24.99 $24.99 $24.99 $24.99
ELECTRIC DISPENSERS
10. Top Load Hot & Cold Cooler Month $3.99 $3.99 $3.99 $4.25 $4.25
11. Bottom Load Hot & Cold
Cooler Month $4.99 $4.99 $4.99 $5.25 $5.25
III. PRICE INCREASE/DECREASES: No price incre ases will be permitted du ring the fi rst year of the Contract. The County requires documented proof of cost increases on Contracts prior to any price adjustment. A m inimum o f 18 0-days advance notice in writing is req uired to secure such adjustment. No retroactive price adjustmen ts will be considered. All pric e decre ases will automatically be extended to the County of Orange. The County may enforce, negotiate, or cancel County of Orange Page 25 of 25 RCA-017-22010155
County Procurement Office File No. 2267902
escalating price Contr acts or take any other a ction it deems appropriate, as it sees fit. The net dollar amount of profit will remain firm during the period of the Contract. Adjustments increasing the Contractor’s profit will not be allowed.
IV. CONTRACTOR’S EXPENSE: The Contrac tor will be responsible for all costs related to photo copying, telephone communications and fax co mmunications while on County sites during the performance of work and services under this Contract
V. PAYMENT TERMS: Invoices are to be sub mitted to the user a gency/department to the ship-to address, unless otherwise directed in this Contract. Contractor shall reference Contract number on invoice. Payment will be ne t 30 days after re ceipt o f an invoice in a format acceptable to the County of Or ange and verifie d and approv ed by the ag ency/department and subject to r outine processing r equirements. The responsibility for providin g an a cceptable invoi ce rests with the Contractor.
Billing shall cover services and/or goods not previou sly invoiced. T he Contractor shall reimburse the County of Orange for any m onies paid to the Contractor for goods or services not provided or when goods or services do not meet the Contract requirements.
Payments made by the County shall not preclude the right of the County from thereafter disputing any items or services involved or billed under this Contract and shall n ot be construed as acceptance of any part of the goods or services.
VI. PAYMENT – INVOICING INSTRUCTIONS: Contractor will provide an invoice on the Contractor’s letterhead for goods delivered and/or services rendered. In the case of goods, the Contractor will leave an invoice with each del ivery. Each invoice will have a num ber an d will include t he following information:
A. Contractor’s name and address
B. Contractor’s remittance address, if different from A. above C. Contractor’s Taxpayer ID Number
D. Name of County Agency/Department
E. Delivery/service address
F. Master Agreement (MA) or Purchase Order (PO) number
G. Agency/Department’s Account Number
H. Date of invoice
I. Product/service description, quantity, and prices
J. Sales tax, if applicable
K. Freight/delivery charges, if applicable
L. Total
Contractor shall issue a nd send invoices acco rding to each De partment Subordinate Agreement instructions/requirements of the Contra ct. A djustments increasing the Contractor’s profit will not be allowed.
VII. ELECTRONIC FUNDS TRANSFER (EFT): County of Orange offers Con tractors the op tion of receiving payment directly to their bank account via an Electronic Fund Transfer (EFT) process in lieu of a check pa yment. Paym ent made via EFT will also receive an Electroni c Remitta nce Advice with t he payment details via e-mail. An e-mail address will need to be pr ovided to the County of Orange via an EFT Authorization Form. To request an EFT form, please contact the DPA.