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09-21-17 Emergency Item - Termination of Debris Removal Contract with CERES Environmental and Award of Debris Removal Contract with Raynor Shine i° `i Hondo AGENDA ITEM COVER SHEET Meeting Date: September 21, 2017 Item # _Ty1ejgthc, I} Reviewed By: Contact Name: Steve Krug, Public Works Department Director: Contact Number: 6002 City Manager: Subject: Termination of Debris Removal Contract with CERES environmental and award of Debris Removal Contract with Raynor Shine Background Summary: On Tuesday, September 6, 2017, The City Commission awarded a debris removal contract to Ceres Environmental Services, Inc. in anticipation of the impact of Hurricane Irma. This award was executed by piggybacking on Orange County's contract with Ceres. This was done in preparation for the approaching Hurricane Irma and the Declaration of a State of Emergency from the Governor's Office, Executive Order Number 17-235. Due to the devastation imparted by Irma, the Mayor and City Manager activated the contract with Ceres by issuing a Notice To Proceed on September 13, 2017, for a not-to-exceed value of $1.2 million. The City issued written notice to proceed on September 13, 2017, and then public works staff and Ceres staff meet on Friday, September 15, agreeing to start on Wednesday September 20 to allow time for the City Commission to approve the monitoring contract with CPH engineers. Work was to have commenced with six crews at 7:00 a.m. on the morning of September 20. Ceres did not show up for duty, and repeated attempts to reach a representative resulted in City staff being informed that they did not have any trucks and it would be Thursday before they could provide a single truck. Additionally, Ceres was to have provided their bond by September 18, which did not occur. Following the events of Wednesday, September 20, The City met with Raynor Shine to determine if they were capable of fulfilling the scope agreed to by the nonperforming Ceres Environmental Services, Inc. Raynor Shine is equipped and experienced at following FEMA guidelines, has their own staging area, and has available trucks to begin immediately and meet the original schedule proposed by the Ceres contract, despite starting a few days late. The City attorney's office reviewed all applicable policies, rules, and statutes, and has determined that the City is justified to terminate its contract with Ceres Environmental Services, Inc. immediately and proceed with approval of a contract with Raynor Shine to begin work. The City Attorney's office has prepared the attached letter for termination of the contract with CERES, as well as an agreement for debris removal for Raynor Shine. Issue: Should the Honorable Mayor and City Commission authorize termination of its contract with Ceres Environmental Services, Inc. and proceed to approve a debris removal contract with Raynor Shine? Recommendations: Staff recommends that the Honorable Mayor and City Commission approve termination of its contract with Ceres Environmental Services, Inc. via the attached letter and authorize execution of a contracted work order with Raynor Shine, effective immediately for a not to exceed price of 1.2 million dollars. Staff requests that this action authorize the Mayor, City Clerk and Staff to execute the required contract documents and for the City Manager to approve additional work up to the limit of his purchasing authority and up to the allowable budget for unforeseen conditions, and for the Commission to delegate the authority to the City Manager to transfer money across funds to the Emergency Management account line 402-534-00-5224 to cover the costs expended in the 2016-2017 Fiscal Year. Staff requests that the City Commission authorize the City Manager to issue a check in advance of service to Raynor Shine for$50,000 for today's date (September 21, 2017), and to authorize the City Manager to reallocate any unspent funds for the 2016-2017 fiscal year to the Raynor Shine's contract for the 2017-2018 fiscal year. Attachments: Letter and Signed Agreement Financial Impact: The proposed contract is for emergency recovery only and will be submitted to FEMA& FHWA for potential future reimbursement. The costs incurred in the 2016-2017 Fiscal Year will be funded from unencumbered account funds and costs incurred in the 2017-2018 Fiscal Year as adopted at the September 18, 2017 Public Hearing. Type of Item: (please mark with an"x') Public Hearing For Clerk's Dept Use: Ordinance First Reading Consent Agenda Ordinance Second Reading Public Hearing Resolution Regular Agenda X Commission Approval Discussion&Direction Original Document/Contract Attached for Execution by City Clerk Original Document/Contract Held by Department for Execution N/A Reviewed by City Attorney Reviewed by Finance Dept. N/A Reviewed by N/A 2 1&0.4 September 21, 2017 OC O Q Q Via Email and Certified Mail, Return Receipt Requested florida Mayor Mr. David A. McIntyre Rusty Johnson Ceres Environmental Services, Inc. Commissioners 2635 Casey Key Road John Grogan Nokomis,1 Florida 34275 Rosemary Wilsen District 2 Re: Termination of City of Ocoee/Ceres Environmental Services Contract Richard Firstner District 3 Joel F.Keller Dear Mr. McIntyre: District 4 On September 6, 2017, the City of Ocoee City Commission approved a contract City Manager with Ceres Environmental Services, Inc. (Ceres) to piggyback disaster recovery and Robert D.Frank debris removal on the same terms and conditions as Contract Y15-1022B with Orange County (Contract). On September 7, 2017, a Notice of Approval of Contract was provided to Tia Laurie, Director of Administration at Ceres. On September 10, 2017 Hurricane Irma hit Central Florida. On September 13, 2017, the City issued a Notice to Proceed to Ceres Contracts Administrator, Suzan Dunlop, activating the Contract for removal of debris from Hurricane Irma. In the Notice to Proceed the City requested Ceres provide to the City a payment and performance bond. The City's directive for the Notice to Proceed was based on six (6) trucks and crews. On September 15, 2017, City and Ceres personnel met and discussed clean up action and agreed upon a commencement date of September 20, 2017. (The City approved a contract with the Field Monitor on September 19, 2017.) Though the City is teeming with debris post-Irma, and in immediate need of removal assistance, as of this date, the City has neither received the required payment and performance bond from Ceres nor has Ceres commenced performance under the Contract in accordance with the Notice to Proceed. For the health and safety of City residents, the City must immediately commence debris clean up and removal. For this reason, we have deemed it most expedient and in the best interest of the City to immediately terminate the City's Contract with Ceres. City of Ocoee • 150 N Lakeshore Drive • Ocoee, Florida 34761 Phone: (407) 905-3100 •www.ocoee.org 404. ()cope florida Rusty Pursuant to Governor Rick Scott's Executive Order 17-235 and Division of Emergency Management Director Bryan Koon's letter of September 18, 2017, Commissioners because Ceres has thus far refused to perform under the Contract, the City of Ocoee John Grogan willpursue an emergency, non-competitive contract with another vendor in District 1 accordance with 2 CFR section 200.320(f)(2). Rosemary Wilsen District 2 Please do not hesitate to contact me should you have any questions. Richard Firstner District 3 Sincerely, Joel F.Keller District 4 City Manager Robert D. Frank Robert D.Frank City Manager RDF/dlc Enclosures City of Ocoee • 150 N Lakeshore Drive • Ocoee, Florida 34761 Phone: (407) 905-3100 •www.ocoee.org AGREEMENT FOR DISASTER RECOVERY AND DEBRIS REMOVAL THIS AGREEMENT FOR DISASTER RECOVERY AND DEBRIS REMOVAL (hereinafter the "Agreement") is entered into this day of September, 2017, by and between the City of Ocoee, a municipal corporation established under the laws of the State of Florida (hereinafter the "City), and Raynor Shine Services, LLC, a Florida limited liability company (hereinafter the "Contractor"). WHEREAS, on September 4, 2017, in preparation for Hurricane Irma, Florida Governor Rick Scott issued Executive Order 17-235 which allows a City to waive the procedures and formalities otherwise required by law pertaining to entering into contracts in accordance with section 252.38, Florida Statutes; and WHEREAS, on September 6, 2017, the City approved a contract with the Orange County Contractor, Ceres Environmental Services, Inc., for disaster recovery and debris removal; and WHEREAS, as of September 20, 2017, Ceres Environmental Services, Inc., had failed to deliver a payment and performance bond to the City and had not provided the level of services directed by the City in the Notice to Proceed thus requiring the City to immediately terminate Ceres' contract; and WHEREAS, on September 18, 2017, Florida Division of Emergency Management Director Bryan W. Koon issued a letter stating that those local governments who have a contract for debris removal but have a vendor who is refusing to perform are authorized to pursue a non- competitive procurement in accordance with 2 CRF section 200.320(0(2); and WHEREAS, the City desires to pursue an emergency, non-competitive procurement and utilize the provisions of the above-referenced Contractor for disaster recovery and debris removal (hereinafter the "Work") in the wake of Hurricane Irma and Vendor consents to the aforesaid arrangement under the terms and conditions provided herein. NOW THEREFORE, in consideration of the above recitals and the provisions set forth in this Agreement, the receipt and sufficiency of which is acknowledged and agreed to by the parties, the Parties agree as follows: 1. Recitals. The foregoing Recitals are true and correct and are incorporated herein as material provisions of this Settlement Agreement by this reference 2. Services/Compensation. The Contractor agrees to perform and the City agrees to utilize the services of the Contractor at the rate of compensation and in a manner and upon the terms and conditions as set forth in Exhibit A, which is attached hereto and incorporated herein by reference. This Agreement is subject to the provisions of 2 C.F.R. Part 200 and the Robert T. Stafford Disaster Relief and Emergency Assistance Act. This statement of work describes and defines the services which are required for the execution of Natural Disaster-related emergency debris removal from Federal-Aid Highway segments, State, local, and private roadways within the City. The Contractor shall provide all services described herein and any other services required to complete the removal of debris during and following emergencies. Activities include, but are not limited to, field operations, debris pickup, debris hauling and removing, debris staging and reduction, temporary debris storage site management and debris management. All debris removal and disposal management services shall be in accordance with all applicable federal and state laws, and environmental regulations. Roads will be identified by the City and direction given to the Contractor for roads and limits for which the Contractor will be responsible for within each County assigned. The City reserves the right to add or delete roadway segments at the direction of the Engineer at no additional cost to the City. The City, at its sole discretion, may elect to perform work with in-house forces or additional contractual forces. This Agreement will be performed in conjunction with a solicitation for CEI/Debris Monitoring Services; the City will not award both contracts to the same firm. Proper documentation as required by Federal Highway Administration (FHWA), Federal Emergency Management Agency (FEMA), or other federal natural disaster response agency shall be provided for all debris removal operations to ensure reimbursement to the City from the appropriate federal agency. Contractor shall comply with FHWA and/or FEMA laws and regulations, including those now in effect and hereafter adopted. FHWA will only pay for debris due to an event "not declared a major disaster or emergency by the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act". Therefore, any time there is a Presidential Declaration within the State of Florida, all debris removal activities on federal-aid roads, first push/first pass or otherwise, will become potentially reimbursable by FEMA. (See attached Exhibit "B", roadways on the federal aid system, which is incorporated herein by reference.) The City will not provide price adjustments for cost increases or decreases in the price of fuel. The Contractor is required to perform at least 30% of the work with its own forces. The Florida Department of Transportation (FDOT) has published Specifications for Road and Bridge Construction and other applicable Design Indexes and Construction Standards, which are made part of this Agreement by reference and are applicable when proposing on and when performing work under this Agreement. Upon execution of this agreement, the Contractor will supply to the city a letter, from a surety authorized to do business in the State of Florida, verifying the Contractor is bondable in the State of Florida in an amount equal to or greater than the amount of the original Agreement. Within five (5) days after a written Notice to Proceed issued by the City for the commencement of any services pursuant to this Agreement, the Contractor will supply to the City and keep in force a $1,200,000 performance and payment bond provided by a surety authorized to do business in the State of Florida, payable to the City. The work will begin upon written authorization by the City. No guarantee of minimum or maximum amounts is made by the City under this Agreement. No adjustment to prices stated in Exhibit"A"will be considered due to increases or decreases in estimated quantities. In the event that the natural disaster impacts another local government jurisdiction, the terms and conditions of this Agreement may apply to work in the affected jurisdiction, with the concurrence of both parties. This Agreement is non-exclusive. The City, at its sole discretion, may award one or more Agreements based on the potential demand for services related to natural disasters. Any references to "Engineer" within this Agreement means the City Engineer, the City Public Works Director, their designees, or an employee of a construction engineering and inspection (CEI) firm retained by the City providing debris monitoring services. 3. Public Records Compliance. The City is a public agency subject to Chapter 119, Florida Statutes. The Contractor agrees to comply with Florida's Public Records Law. Specifically, the Contractor shall: A. Keep and maintain public records required by the City to perform the service. B. Upon request from the City's custodian of public records, provide the City with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in chapter 119, Florida Statutes, or as otherwise provided by law. C. Ensure that public records that are exempt or confidential and exempt from the public records disclosure requirements are not disclosed except as authorized by law for the duration of the Agreement term and following completion of the Agreement if the Contractor does not transfer the records to the City. D. Upon completion of the Agreement, Contractor agrees to transfer at no cost to the City all public records in possession of the Contractor or keep and maintain public records required by the City to perform the service. If the Contractor transfers all public record to the City upon completion of the Agreement, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Contractor keeps and maintains public records upon completion of the Agreement, the Contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the City, upon request from the City's custodian of public records, in a format that is compatible with the information technology systems of the City. E. A Contractor who fails to provide the public records to City within a reasonable time may be subject to penalties under section 119.10, Florida Statutes. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT 407-905-3100, EXTENSION 1022, CCDL@ci.ocoee.fl.us, WITH AN OFFICE LOCATED AT 150 NORTH LAKESHORE DRIVE, OCOEE, FLORIDA 34761. 4. Term and Termination. Term. The term of this Agreement is approximately six (6) months, beginning on September 21, 2017 through March 21, 2017, or until such time as City has issued a solicitation for debris removal services and selected a vendor. Termination: Termination of this Agreement may be with or without cause and may be done by either party with a 15 day written Notice of Termination. 5. Notice. All notices required under this Agreement shall be sent by certified mail, return receipt requested, to the parties as follows: TO THE CITY: Mr. Steve Krug Public Works Director City of Ocoee 301 Maguire Road Ocoee, FL 34761 Telephone: 407-905-3170 Email: SKrug,c ci.ocoee.fl.us TO THE CONTRACTOR: Mr. Michael Dinkel Raynor Shine Services, LLC 850 Ocoee Apopka Road Ocoee, FL 34761 Telephone: 407-595-5332 Email: 6. Indemnification. Contractor shall indemnify, defend and hold completely harmless the City, its elected representatives, officers, employees and agents of each, from and against any and all liabilities, losses, suits, claims, demands,judgments, fines, damages, costs and expenses (including all costs for investigation and defense thereof, including, but not limited to court costs, expert fees and reasonable attorney's fees and paralegal fees and attorneys and paralegal fees on appeal) which may be incurred by, charged to or recovered from any of the foregoing (i) by reason or on account of damage to or destruction of any property of the City, or any property of, injury to or death of any person resulting from or arising out of the Contractor's performance under this Agreement, or the acts or omissions of Contractor officers, agents, employees, subcontractors, licensees or invitees resulting from performance under this Agreement, regardless of where the damage, destruction, injury or death occurred, unless such liability, loss, suit, claim, demand, judgment, fine, damage, cost or expense was proximately caused solely by City's negligence or by the joint negligence of City and any person other than Contractor or Contractor's officers, agents, employees, subcontractors, licensees or invitees, or (ii) arising out of the failure of Contractor to keep, observe or perform any of the covenants or agreements set forth in this Agreement to be kept, observed or performed by Contractor. City agrees to give Contractor reasonable notice of any suit or claim for which indemnification will be sought hereunder, to allow Contractor or its insurer to compromise and defend the same to the extent of its interests and to reasonably cooperate with the defense of any such suit or claim. The provisions of this Section shall survive the expiration or earlier termination of the term of this Agreement with respect to any acts or omissions occurring during the term of this Agreement. City does not waive sovereign immunity as provided under Florida law. 7. Nondiscrimination. The Contractor agrees that it has adopted and will maintain and enforce a policy of nondiscrimination on the basis of race, color, religion, sex, age, handicap or national origin. 8. Insurance. Contractor shall, without expense to the City, obtain and maintain or cause to be obtained and maintained throughout the term of this Agreement, coverages as stated herein, and naming the City of Ocoee as an additional insured: Comprehensive automobile insurance (any auto, including owned autos, non-owned autos and hired autos) and garage liability insurance, if applicable. Comprehensive general liability insurance (including but not limited to contractual, independent Contractors, broad form property damage, and personal injury, as applicable, and such other coverage as may from time to time be generally issued by insurance companies for businesses similar to that engaged in by Contractor in the performance of this Agreement which City may reasonably require) protecting Contractor, the City, its elected representatives, officers, agents and employees of each from and against any and all liabilities arising out of or relating to Contractor's performance of this Agreement whether such operations be by himself, or by any subcontractor or by anyone directly or indirectly employed by any of them or by anyone for whose acts any of them may be liable. Insurance against theft or damage to all Contractor's equipment used in carrying out this Agreement. Workers' compensation or similar insurance affording the required statutory coverage and containing the required statutory coverage and containing the requisite statutory limits. Such policies shall be in such form and with such company or companies as the City shall approve, and except for coverage limits of Workmen's Compensation Insurance, be in an amount no less than ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) combined single limit, or its equivalent, or such greater amount of such insurance as shall be maintained by Contractor, with no deductible, with cross liability endorsement and with contractual liability coverage for Contractor's covenants to and indemnification of the City. Contractor's insurance shall provide that it is primary insurance as respects any other valid and collectible insurance City may possess, including any self-insured retention or deductible City may have, and that any other insurance City does possess shall be considered excess insurance only. Contractor's insurance shall also provide that it shall act for each insured and each additional insured as though a separate policy has been written for each; provided, however, that these provisions shall not operate to increase the policy limits. Contractor shall provide, prior to the execution of this Agreement and within ten (10) days of award of the Agreement, and at least thirty (30) days prior to the expiration of an insurance policy or policies theretofore provided to the City by Contractor hereunder, a certificate of insurance evidencing all coverage required under this Section. Such certificate(s) shall name the City and its elected representatives, officers, employees and agents of each as additional insured and shall provide that the policy or policies may not be canceled or modified nor the limits thereunder decreased without thirty (30) days prior written notice thereof to the City. 9. Miscellaneous. Contractor shall execute the required Conflict of Interest Disclosure Form, which is attached hereto as Exhibit"C" and is incorporated herein by reference. Time is of the essence with respect to all matters set forth in this Agreement. The Contractor is not, and shall not for any purpose be, the agent of the City and shall have no power or authority to bind the City in any manner whatsoever. It is stipulated and agreed between the parties that this Agreement shall be interpreted and construed in accordance with the laws of the State of Florida and any trial or other proceeding with respect to this Agreement shall take place in the State of Florida with venue in Orange County, Florida. Both parties shall comply with all federal, state and local laws, regulation, rules, ordinances and orders of any kind, which are applicable to performance hereunder. The provisions of this Agreement shall be deemed severable and the invalidity or enforceability of any provisions shall not affect the validity and enforceability of the other provisions hereof. If any provision of this Agreement is unenforceable for any reason whatsoever, such provision shall be appropriately limited and given effect to the extent that it may be enforceable. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. If the performance of this Agreement or any obligation hereunder, except the making of payments hereunder, is prevented, restricted or interfered with by reason of fire, flood, earthquake, explosion or other casualty or accident; strikes or labor disputes, inability to procure parts, supplies or power; war or other violence; any law, order, proclamation, regulation, ordinance, demand or requirement of any government agency; or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected shall, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take all reasonable steps to avoid or remove such causes of nonperformance and shall resume performance hereunder with dispatch whenever such causes are removed. This Agreement embodies and constitutes the entire understandings of the parties with respect to the matters contemplated herein, and all prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement. This Agreement shall be enforced and interpreted in accordance with the laws of the State of Florida. Any action or proceeding brought by either party against the other arising out of or related to the Agreement shall be brought only in a state or federal court of competent jurisdiction located in Orange County, in the State of Florida and the parties hereby consent to the personal jurisdiction of said courts. This Agreement constitutes the entire agreement between Contractor and City with respect to the subject matter herein and shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, successors and assigns. Neither this Agreement nor any amendment to this Agreement shall be valid unless in writing signed by Contractor and City. RAYNOR SHINE SERVICES, LLC Witness: Witness: Name: Michael Dinkel Title: Manager CITY OF OCOEE, a Florida municipal corporation By: RUSTY JOHNSON Mayor Attest: MELANIE SIBBITT City Clerk APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON , 2017 UNDER AGENDA ITEM FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE,FLORIDA; APPROVED AS TO FORM AND LEGALITY this_day of , 2017. SHUFFIELD LOWMAN& WILSON,P.A. By: City Attorney EXHIBIT A - SCOPE AND PRICE OF SERVICES Exhibit B Roadways on the Federal Aid System EXHIBIT"J" Roadways on the Federal Aid System r rif a A ._ I r---eg 4 R` 4 TEMT EIII LIKE 1 al LAKE 56IS '- III . 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' 8E\NET I COLON• •: LIKE /'I. 1 _1 V� - mewwill i Mk 111. �, ®.�I. ,,.z ..,.u,: 4l Liar ��Ill ‘�C i °R4'. � mo. .m; 1n `arn vat, J Jb1; —l2Pi .rg•ill — Ai A pLrIllh•tip:.1t..-:.s• ' State Roads on Federal Aid System 1 N ‘ Local Roads on Federal Aid System 41 ` Ir : era1A115tem IM L,KE Citrf/r:\r r rR _ dIII corporated Territory r.".** E+ and Other Municipalities I a.tn 0.25 0.5 , II Map Generated:July 2017 �MMs _ ---f Exhibit C Conflict of Interest Disclosure Form 1\../ ocoee florida DISASTER DEBRIS REMOVAL CONFLICT OF INTEREST DISCLOSURE FORM The award of this contract is subject to the provisions of Chapter 112, Florida Statutes. All Proposers must disclose within their Proposal: the name of any City of Ocoee employee, Mayor or City Commissioner, other City Official, or City Consultants, or any FEMA, FHWA,FDOT employee,who owns assets or capital stock, directly or indirectly, in the Proposer's firm or any of its branches, or would directly or indirectly benefit by the profits or emoluments of this proposal. (Indirect ownership or benefit applies to any members of his or her immediate family.) Proposer certifies that no member of the entity's ownership or management is presently applying for an employee position or actively seeking an elected position with the City. In the event that a conflict of interest is identified in the provision of services, Proposer agrees to immediately notify the City in writing. The purpose of this disclosure form is to give the City the information needed to identify potential conflicts of interest for the City Commission, Evaluation Committee members, and other key City employees and consultants involved in the award of this contract. According to Chapter 112, Florida Statutes,the term"conflict of interest""means a situation in which regard for a private interest tends to lead to disregard of a public duty or interest", and refers to situations in which financial or other personal considerations may adversely affect, or have the appearance of adversely affecting,an employee's professional judgment in exercising any City duty or responsibility in administration, management, instruction, research, or other professional activities. Please check one of the following statements and attach additional documentation if necessary: To the best of our knowledge,the undersigned firm has no potential conflict of interest for this Proposal. The undersigned firm,by attachment to this form, submits information which may be a potential conflict of interest for this Proposal. Acknowledged by: Firm Name Signature Name and Title(Print or Type) Date 'A r