DCSD – Stertil-Koni USA, Inc., Contract (Draft) - February 13, 2023 - DCSD Board Meeting Archive

DEKALB COUNTY SCHOOLS
MEMBER SPECIFIC AGREEMENT FOR
TO SOURCEWELL CONTRACT NO. 013020,
VEHICLE LIFTS WITH GARAGE AND
FLEET MAINTENANCE EQUIPMENT

Owner: DeKalb County Board of Education
Address: Sam A. Moss Service Center
1780 Montreal Rd., Tucker, Georgia 30084
Phone No.: ____________________________
Fax No.: ____________________________
Owner’s Representative: ____________________________

Contractor: STERTIL-KONI USA, INC.
Address: _____________________________
Phone No.: _____________________________
Fax No.: _____________________________

THIS MEMBER SPECIFIC AGREEMENT (this “Agreement”) is entered into as of the
____ day of __________, 2022 by the DeKalb County Board of Education (“Owner”) and Stertil-
Koni USA, Inc. (“Contractor”).

FOR AND IN CONSIDERATION of the mutual promises and covenants set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, Owner and Contractor hereby agree as follows:

1. CONTRACT DOCUMENTS: The term “Contract Documents” as used herein shall mean
all of the following:

A. This Agreement;
B. Sourcewell RFP No. 013020 for Vehicle Lifts with Garage and Fleet Maintenance
Equipment dated December 12, 2019;
C. Contract No. 013020 between Sourcewell and Stertil-Koni USA, Inc. dated April 11,
2020;
D. Contractor’s Pricing Schedule for Contract No. 013020 dated May 1, 2022; and
E. Any Work Orders issued pursuant to this Agreement.

The Contract Documents constitute the entire and exclusive agreement between Owner and
Contractor with respect to the Work, and supersede any and all prior discussions, communications,
representations, negotiations or agreements between them with respect to the Work. The Contract
Documents are complementary and are to be read as a whole. In the event of a discrepancy in the
Contract Documents, the more specific and more detailed descriptive information will take
precedence over the general and less detailed description. In cases of doubt, the Contractor shall
assume that the Owner intends that the more complete method, system or process is required. It
is the intent of the Contract Documents to describe a functionally complete project (or part thereof)
to be performed in accordance with the Contract Documents. Any work, labor, materials or
equipment that may be required, implied or inferred by the Contract Documents as being required

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DEKALB COUNTY SCHOOLS
MEMBER SPECIFIC AGREEMENT FOR
TO SOURCEWELL CONTRACT NO. 013020,
VEHICLE LIFTS WITH GARAGE AND
FLEET MAINTENANCE EQUIPMENT
to produce the intended result shall be provided by the Contractor for the Contract Price. In the
event of any conflict between the terms of this Agreement and the Master Services Agreement, the
terms of this Agreement shall control.

2. WORK ORDERS: Owner may, from time to time during the Term, order Work through
a Work Order. Work Orders shall identify the project, contain a description of the services and/or
materials to be provided, and set forth the Contract Time and Contract Price (or the methodology
for determining pricing if the Work is to be provided on a time and materials basis). All Work
Orders shall be in writing, and Contractor shall not commence Work unless and until the Owner
has delivered a signed copy of the Work Order to Contractor. A sample Work Order is attached
hereto as Exhibit “A”. The execution and delivery of this Agreement does not mean that any work
will be awarded to Contractor or that any Work Orders will be issued to Contractor, but merely
sets forth the terms and conditions which govern the parties’ relationship in the event Work Orders
are issued to Contractor.

3. STATEMENT OF WORK: Contractor shall furnish all labor, equipment, materials,
services, and facilities required to perform the work described and detailed in the Work Order, all
of which together constitutes the “Work”. The Work shall be performed in accordance with the
terms and conditions of these Contract Documents. If the Work is to be permanently installed on
any Owner real property or portion thereof, such real proportion or portion thereof shall be
described in the Work Order (each, a “Site”). Contractor represents and warrants that, prior to
accepting any Work Order, it has become familiar with the Site and the local conditions under
which the Work is to be performed.

4. TIME TO COMMENCE AND COMPLETION: Each Work Order shall set forth the
date the Work thereunder is to be commenced and the date of Completion for the applicable
project. The term “Completion” shall mean the completion of all Work required by, and in strict
compliance with, the Contract Documents, including equipment start-up, testing, obtaining
regulatory approvals from all applicable authorities, and all preparations within the Scope of Work
as prepared by the Contractor necessary to operate or use the project for its intended purpose.

5. CONTRACT PRICE: Each Work Order shall set forth the Contract Price, if the Contract
Price is to be a lump-sum, fixed-price, or shall set forth the methodology for determining the
Contract Price if it is based on a time-and-materials or unit-pricing basis.

6. PAYMENT:

A. Upon Completion of the Work, Contractor shall submit an invoice for payment to
Owner for the Contract Price.

B. If the Contract Price is based on a time-and-materials/unit pricing basis, Contractor
shall include with the invoice such information and documentation detailing the rates,
time and materials expended on the Work, with such timesheets, invoices, receipts and
other supporting documentation and information verifying the amounts for which

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DEKALB COUNTY SCHOOLS
MEMBER SPECIFIC AGREEMENT FOR
TO SOURCEWELL CONTRACT NO. 013020,
VEHICLE LIFTS WITH GARAGE AND
FLEET MAINTENANCE EQUIPMENT
payment is sought as Owner may reasonably require, calculated at the rates set forth in
Contractor’s Bid/Proposal/Quote.

C. Owner shall promptly review such invoice and shall make payment of all undisputed
amounts due thereunder within thirty (30) days of its receipt of such invoice, provided
that Contractor has provided Owner with all close-out documentation. Owner reserves
the right to withhold payment if Contractor, without proper justification, is not making
payments to its Subcontractors, if Contractor fails to correct defective work as required
hereunder or other good and sufficient cause.

D. Amounts due hereunder shall not bear interest, and Contractor expressly waives any
and all protections set forth in the Georgia Prompt Payment Act.

E. Acceptance of final payment by Contractor shall constitute a waiver of all claims by
Contractor against Owner except those previously made in writing to Owner. Neither
payment to Contractor nor utilization of the project by the Owner shall be interpreted
or construed as an acceptance of any Work which is not strictly in compliance with the
requirements of the Contract Documents.

7. TERM: The term of this Agreement is for a period of one (1) year from the date hereof
(the “Initial Term”). In addition to the Initial Term, this Agreement also contains additional one-
year optional renewal periods as set forth in the RFP (each, a “Renewal Term” and, collectively
with the Initial Term, the “Term”), which option may be exercised by Owner solely in its discretion
and upon the receipt of such approvals from Owner’s Board of Education as may be required.
Additionally, as required by O.C.G.A. § 20-2-506, this Agreement shall terminate absolutely and
without further obligation on the part of Owner at the end of the calendar year in which it was
executed and at the close of each succeeding calendar year for which it may be renewed; provided,
however, that this Agreement shall be automatically renewed each calendar year unless Owner
delivers a notice of non-renewal to Contractor at least thirty (30) days prior to the end of such
calendar year, unless this Agreement has otherwise been terminated as provided herein. At the
end of the Term, Owner may elect to have Contractor complete any open Work Order(s) or
terminate such Work Order(s), in Owner’s sole and absolute discretion.

8. CONTRACTOR’S RESPONSIBILITIES:

A. Pursuant to this Agreement and each Work Order, Contractor shall:

(1) have and maintain, at all times during the performance of the Work, all licenses
necessary for the performance thereof, and shall obtain and pay for all permits and
approvals required to perform the Work;

(2) at all times give all notices and comply with all laws, ordinances, rules and
regulations applicable to the Work, and promptly notify Owner if it observes any
Work which is conflict with any such requirements;

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DEKALB COUNTY SCHOOLS
MEMBER SPECIFIC AGREEMENT FOR
TO SOURCEWELL CONTRACT NO. 013020,
VEHICLE LIFTS WITH GARAGE AND
FLEET MAINTENANCE EQUIPMENT

(3) pay all sales, consumer, use and similar taxes for the Work as required by law;

(4) supervise and direct the Work efficiently and with its best skill and attention, using
such means, methods, techniques, sequences and procedures of construction as
Contractor deems appropriate, and perform the Work in compliance with the terms
and conditions of the Contract Documents and the standard of care applicable to
services of the type, scope and complexity assigned to Contractor;

(5) provide adequate, competent, suitably qualified personnel and labor (including,
without limitation, a full-time on-site superintendent unless otherwise noted in the
Work Order), equipment, materials, transportation, machinery, tools, appliances,
fuel, utilities, sanitary facilities and all other facilities and incidentals necessary or
required to perform the Work, all of which shall be maintained in good working
order throughout the performance of the Work;

(6) provide all materials and equipment to be installed in the Work, which shall be new
and in first-class condition and which shall be applied, installed, connected, erected,
used, cleaned and conditioned in accordance with the instructions of the applicable
manufacturer, fabricator or processor;

(7) be fully responsible to Owner for all acts and omission of any Subcontractors and
suppliers or other persons directly or indirectly involved in performing the Work,
and ensure that all such Subcontractors and suppliers are paid for such work, and
indemnify and defend the Owner from any claims with respect thereto;

(8) be responsible for initiating, maintaining and supervising all safety precautions and
programs in connection with the Work, including all necessary precautions for the
safety and protection of, all employees on the Work and others who may be affected
thereby, the Work itself, and all other structures and areas adjacent to or on or about
the Site;

(9) keep the Site free from accumulations of waste materials, rubbish and other debris
resulting from the Work, and at the completion of the Work remove all waste
materials, rubbish and debris from and about the Site as well as all tools,
construction equipment and machinery and surplus materials, and leave the Site
clean and ready for occupancy or use by Owner; and

(10) cooperate with Owner’s designated representative, consult with the
Owner’s representative before finalizing recommendations or taking action at
milestones or other key decision points, provide any requested information and
meet, consult and coordinate the Work with Owner’s representative.

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DEKALB COUNTY SCHOOLS
MEMBER SPECIFIC AGREEMENT FOR
TO SOURCEWELL CONTRACT NO. 013020,
VEHICLE LIFTS WITH GARAGE AND
FLEET MAINTENANCE EQUIPMENT
B. Contractor shall maintain strict discipline among all personnel employed at the Site,
and no person under the influence of drugs or alcohol shall be allowed on the property
of Owner, nor shall any person employed on the Site have in his or her possession any
drugs, alcohol or firearms. Unprofessional conduct, including but not limited to
horseplay, wrestling, fighting, or the wearing of clothing containing vulgar, immoral
or unwholesome words or images or promoting the same, shall not be permitted or
allowed. No employee, Subcontractor or representative of Contractor shall use any
tobacco product while at the Site.

C. Contractor shall indemnify, defend and hold Owner and its Board of Education,
officers, employees and agents harmless from and against all claims, liabilities,
damages, losses, costs and expenses of every type whatsoever including, without
limitation, attorneys’ fees and expenses of litigation, in connection with Contractor’s
performance of the Work, provided that such claim, liability, damage, loss, cost or
expense is due (1) to sickness, bodily injury, disease or death, or to (2) loss or
destruction of tangible property (other than the Work itself), including loss of use
resulting therefrom, in each case to the extent caused by Contractor or anyone for
whose acts Contractor is or may be responsible or liable (including, without limitation,
any employees or agents of Contractor or any Subcontractors, sub-subcontractors or
material suppliers), regardless of whether such claim, liability, damage, loss, cost or
expense is caused in part by Owner. Contractor shall not be required to indemnify
Owner from any claim, liability, damage, loss, cost or expense caused by or resulting
from the sole negligence of Owner; provided, however, the preceding limitation shall
not limit or affect any obligation of Contractor under any workers’ compensation or
coverage or insurance specifically relating to workers’ compensation.

9. OWNER’S RESPONSIBILITIES:

A. The Owner will provide Contractor with an accurate description of the Site and an
accurate statement concerning physical conditions at the Site relevant or applicable to
the Work including, if appropriate, available surveys, plans or specifications describing
the physical characteristics, legal limitations, and utility locations at the Site.

B. The Owner will provide Contractor and its employees and Subcontractors full and
uninhibited access to the Site (or portion thereof on which the Work is to be performed)
and any area reasonably necessary to access the Site and perform the Work.

C. The Owner shall have the right, at its sole discretion, to demand and require that
Contractor remove any employee or Subcontractor working on any project and to
replace the same, without cost or liability to Owner.

10. TERMINATION OF THE AGREEMENT: Either party may terminate this Agreement
and all open Work Orders outstanding hereunder upon the occurrence of any material breach by
the other party to this Agreement by giving written notice of such breach to the breaching party,

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DEKALB COUNTY SCHOOLS
MEMBER SPECIFIC AGREEMENT FOR
TO SOURCEWELL CONTRACT NO. 013020,
VEHICLE LIFTS WITH GARAGE AND
FLEET MAINTENANCE EQUIPMENT
which notice shall describe the alleged breach. This Agreement will terminate after the receipt of
such notice unless the breaching party has cured such breach within ten (10) days from its receipt
of such notice or, in the event said breach cannot be cured within ten (10) days, has failed to
commence and diligently pursue curing of said breach. In addition, the Owner may terminate this
Agreement for its convenience at any time and for any (or no) reason. In either case, all
outstanding invoices or monies due for Work performed through the termination date shall be due
and payable as of the termination date, less any amounts (if any) due to Owner from Contractor.
Owner further reserves the right to suspend Contractor’s performance of the Work should
Contractor repeatedly fail or refuse to perform the Work as required herein, and Contractor shall
not be permitted to resume work until such deficiencies have been corrected to Owner’s
satisfaction. Contractor shall not be entitled to any extension of the Contract Time or increase in
the Contract Price as a result of such suspension.

11. SUBCONTRACTORS: Should Contractor enter into any subcontracts in connection with
the performance of the Work, all such subcontracts shall be in writing and shall incorporate all the
terms and conditions set forth herein. Contractor will not employ any Subcontractor against whom
Owner may have reasonable exception, and will not make any substitution for any Subcontractor
who has been accepted by Owner except with good cause. Contractor shall be fully responsible
for all acts and omission of its Subcontractors. Nothing in this Agreement will create any
relationship between Owner and any Subcontractor. Contractor shall indemnify, defend and hold
Owner harmless from and against any and all claims for payment made by any Subcontractors and
shall, within three (3) days of written demand from Owner, bond off or remove any lien filed
against Owner’s property by any Subcontractor. Should Contractor fail and/or refuse to remove
any such lien, or should any Subcontractor otherwise notify Owner of non-payment by Contractor,
Owner may, at its option, make payment jointly to Contractor and its Subcontractor(s).

12. INSURANCE: Contractor shall maintain all insurance policies as required by the
Contract. Contractor shall not commence Work under this Agreement or any Work Order until it
has obtained all the insurance so-required and delivered certificates of insurance evidencing such
coverages to Owner, nor shall Contractor allow any Subcontractor to commence work on a
subcontract until Subcontractor has provided the insurance required hereunder. The insurance
required shall be maintained in full force and effect during the performance of the Work until
Completion. Owner shall be named as an additional insured on all policies (except for Worker’s
Compensation).

13. PAYMENT AND PERFORMANCE BONDS: Owner reserves the right, at its option,
to require Contractor to provide payment and performance bonds in an amount equal to one
hundred percent (100%) of the Contract Price for any Work Order or project. In such event,
Contractor shall provide such bonds within ten (10) days of Owner’s request, issued by a surety
acceptable to Owner in its commercially reasonable discretion.

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DEKALB COUNTY SCHOOLS
MEMBER SPECIFIC AGREEMENT FOR
TO SOURCEWELL CONTRACT NO. 013020,
VEHICLE LIFTS WITH GARAGE AND
FLEET MAINTENANCE EQUIPMENT

14. WARRANTY: Contractor shall warrant all materials and labor as set forth in the Contract.

15. IMMIGRATION COMPLIANCE: Contractor and all Subcontractors shall comply with
all state and federal immigration laws, rules and regulations, and the Contractor and all
Subcontractors shall provide Owner with the completed, signed and notarized forms required for
compliance with the Georgia Security and Immigration Compliance Act, as amended by the Illegal
Immigration Reform Act of 2011, O.C.G.A. § 13-10-90 et seq., prior to performance of any Work
hereunder.

16. DISPUTE RESOLUTION: All claims, disputes, and other matters in question between
the Owner and Contractor arising, out of, or relation to, this Agreement or the breach hereof, shall
be mediated in good faith as a prerequisite to litigation. Either party may file a request for
mediation at any time; provided, however, that such mediation shall not take place until after
Completion has been achieved. The mediation shall take place in Atlanta, Georgia. Each party
shall bear its own costs and expenses in connection with such mediation and the parties shall divide
and pay the mediator’s fees and expenses equally. Should the parties be unable to resolve any
dispute or claim in mediation, either party may file a lawsuit in the Superior Court of DeKalb
County, Georgia following the conclusion of the mediation. Each party hereby irrevocably
consents to the exclusive jurisdiction of such court and the laying of venue therein.

17. GOVERNING LAW: This Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia without regard to its conflicts of law principles.

18. NO WAIVER: No waiver by either party of any default by the other party in the
performance of any provision of this Agreement shall operate as or be construed as a waiver of
any future detail, whether like or different in character.

19. SEVERABLILTY: If any provision of this Agreement, or application thereof to any
person or circumstance shall to any extent be invalid, such invalidity shall not affect the
enforceability of the remainder of the Agreement or its enforceability in relation to other persons
or circumstances.

20. NO THIRD-PARTIES: Nothing contained in this Agreement or any Work Order shall
create a contractual relationship with or cause of action in favor of a third-party against Owner.

21. INDEPENDENT CONTRACTOR: Contractor shall perform as an independent
contractor and not as an employee or representative of Owner. Contractor retains sole and
exclusive liability for all contributions, taxes or payment required to be made on account of
Contractor’s employees under federal or state tax or labor laws, unemployment and workers’
compensation acts, social security acts, and all other legislation requiring employer contributions
or withholdings.

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DEKALB COUNTY SCHOOLS
MEMBER SPECIFIC AGREEMENT FOR
TO SOURCEWELL CONTRACT NO. 013020,
VEHICLE LIFTS WITH GARAGE AND
FLEET MAINTENANCE EQUIPMENT
22. BACKGROUND CHECKS: A criminal background check must be performed on all
contractors, consultants, subcontractors, volunteers and vendors (“Individuals”) who provide
services on Owner’s premises, supervise services on Owner’s premises or have contact with
students. All Individuals shall undergo the same criminal background check, within the last 365
days, as required of Owner’s own employees. Such background checks shall be performed by
Owner at the expense of the Individual at a cost of $45.00 per person. Upon receipt and evaluation
of the background check, Owner may demand that the Individual have no contact with students or
parents, or exclude such Individual from performing work on Owner’s premises or otherwise for
Owner, in its sole and absolute discretion. Owner may make such determination regardless of
whether such charges may have been dismissed, expunged, sealed, removed from the record,
treated under “first offender” status or dead docketed. Any failure by Contractor to obtain a
criminal background check for any Individual as required herein, may result in the termination of
this Agreement and/or Work Order(s) without penalty to Owner.

23. RIGHT TO AUDIT; COST PRINCIPLES:

A. Contractor shall maintain complete and accurate books and records with respect to
services, cots, expenses, receipts and other information necessary to verify the scope
or charges for any services and/or materials provided under this Agreement and any
Work Order. Contractor understands and agrees that Owner has the right to review
documents and work in progress and to audit financial and other records pertaining to
the performance of the Work under this Agreement, whether such records were
prepared by Contractor or anyone else associated with the Work. At any time prior to
the date which is six (6) years following the final payment under this Agreement,
Contractor shall provide Owner, at Owner’s reasonable expense, a copy of all such
records within ten (10) business days of a written request from Owner. At any time
prior to the date which is six (6) years following final payment under this Agreement,
Owner’s rights shall also include access at reasonable times to Contractor’s facilities
for the purpose of interviewing employees and inspecting and copying (at Owner’s
reasonable expense) such books, records, accounts and other material which may be
relevant to a matter under investigation. Contractor shall, at no cost to Owner, furnish
reasonable facilities and assistance for such review and audit. Contractor’s failure to
provide records or access within the time requested shall preclude Contractor from
receiving any payment under this Agreement until such documents are provided.
Contractor agrees to maintain such records for a period of six (6) years following final
payment under this Agreement.

B. To the extent that an audit by Owner, Owner’s independent auditors or a designee of
any of them, discloses excess charges inaccurately or improperly attributed to this
Agreement by Contractor, Contractor agrees to remit the amount of the overpayment
to Owner within thirty (30) days after demand.

C. Contractor agrees that the Contract Cost Principles and Procedures, 48 C.F.R., F.A.R.
Part 31, shall be used to determine the allowability of individual items of cost. Any

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DEKALB COUNTY SCHOOLS
MEMBER SPECIFIC AGREEMENT FOR
TO SOURCEWELL CONTRACT NO. 013020,
VEHICLE LIFTS WITH GARAGE AND
FLEET MAINTENANCE EQUIPMENT
costs for which payment has been made to Contractor that are determined by
subsequent audit to be disallowed thereunder shall be repaid to Owner as set forth
above.

24. ENTIRE AGREEMENT; AMENDMENT: The Contract Documents, including any and
all exhibits attached hereto which are incorporated herein by reference, represents the entire
understanding and agreement between the parties hereto relating to the Work and supersedes any
and all prior agreements, whether written or oral, that may exist between the parties regarding
same. No amendment or modification to the Work or this Agreement or any waiver of any
provision hereof shall be effective unless in writing signed by the party so to be bound thereby.

[Signatures appear on following page]

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DEKALB COUNTY SCHOOLS
MEMBER SPECIFIC AGREEMENT FOR
TO SOURCEWELL CONTRACT NO. 013020,
VEHICLE LIFTS WITH GARAGE AND
FLEET MAINTENANCE EQUIPMENT

IN WITNESS WHEREOF, the parties have caused this Member Specific Agreement to be
executed by their duly authorized representative as of the date first set forth above.

OWNER: CONTRACTOR:
DEKALB COUNTY BOARD OF STERTIL-KONI USA, INC.
EDUCATION

By: _________________________ By: ________________________
Name: _______________________ Name: ______________________
Its: __________________________ Its: ________________________

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DEKALB COUNTY SCHOOLS
MEMBER SPECIFIC AGREEMENT FOR
TO SOURCEWELL CONTRACT NO. 013020,
VEHICLE LIFTS WITH GARAGE AND
FLEET MAINTENANCE EQUIPMENT
EXHIBIT A – WORK ORDER

PROJECT/SITE: __________________________________

ISSUE DATE: __________________________________

COMMENCMENT DATE: __________________________________

COMPLETION DATE: __________________________________

WORK REQUESTED: ______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________

PAYMENT: Lump-sum/Fixed-price: _________________________

** This Work Order is subject to the terms and conditions of the Member Specific Agreement,
the terms and conditions of which are expressly incorporated herein by reference.

OWNER: CONTRACTOR:
DEKALB COUNTY BOARD OF STERTIL-KONI USA, INC.
EDUCATION

By: _________________________ By: ________________________
Name: _______________________ Name: ______________________
Its: __________________________ Its: ________________________

Agenda Item