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VENDOR AGREEMENT FOR PRODUCTS AND/ OR SERVICES
FOR
COMPOST BROKER PROGRAM
This Agreement is made and entered into as of the _____ day of _______, 2022 by and between the City of Foster City hereinafter called " CITY" and San Mateo Resource Conservation District hereinafter called " VENDOR".
RECITALS
This Agreement is entered into with reference to the following facts and circumstances:
A. That CITY desires to engage VENDOR to provide a product and/ or services to the CITY;
B. That VENDOR is specially trained, experienced and competent to perform and has agreed to provide the product and/ or services to the CITY and; C. That the CITY has elected to engage VENDOR upon the terms and conditions as hereinafter set forth.
1. A. Services. The services to be performed by VENDOR under this Agreement are set forth in Exhibit A, which is, by this reference, incorporated herein and made a part hereof as though it were fully set forth herein.
Performance of the work specified in said Exhibit A is hereby made an obligation of VENDOR under this Agreement, subject to any changes that may be made subsequently hereto upon the mutual written agreement of the said parties.
Where in conflict, the terms of this Agreement supersede and prevail over any terms set forth in Exhibit A.
B. Product. The product to be supplied by VENDOR under this Agreement is set forth in Exhibit A which is, by this reference, incorporated herein and made a part hereof as though it were fully set forth herein.
Timely delivery of the product specified in said Exhibit A is hereby made an obligation of VENDOR under this Agreement, subject to any changes that may be made subsequently hereto upon the mutual written agreement of the said parties.
VENDOR’s obligation to provide the product includes but is not limited to, the provision of all labor, equipment, materials, testing and any other DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 August22
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required work or services or costs of any type incidental to the supply of the product.
2. Term; Termination. ( a) The term of this Agreement shall commence upon the date hereinabove written and shall expire upon the date enumerated in Exhibit A, delivery of the product or completion of performance of services hereunder by VENDOR, whichever date shall first occur.
b) Notwithstanding the provisions of ( a) above, CITY may with or without cause, direct VENDOR to suspend, delay or interrupt services, in whole or in part, for such periods of time as CITY may determine in its sole discretion. c) CITY may terminate performance of the services under this Agreement in whole, or from time to time in part, for default, should VENDOR commit a material breach of this Agreement, or part thereof, and not cure such breach within ten ( 10) calendar days of the date of CITY’s written notice to VENDOR demanding such cure, in which case VENDOR shall be liable to CITY for all loss, cost, expense, damage and liability resulting from such breach and termination. ( d) CITY may terminate performance of the services under this Agreement in whole, or from time to time in part, for convenience, whenever CITY determines that such termination is in CITY’s best interests, in which case VENDOR shall be entitled to recover its costs expended up to the termination date plus reasonable profit thereon to the termination date as this Agreement would otherwise provide, but may recover no other cost, damage or expense. VENDOR shall continue its work throughout the course of any dispute, and VENDOR’s failure to continue work during a dispute shall be a material breach of this Agreement.
3. Compensation; Expenses; Payment. CITY shall compensate VENDOR for all products supplied or services performed by VENDOR hereunder as shown in Exhibit B attached hereto and by this reference incorporated herein.
Notwithstanding the foregoing, the combined total of compensation and reimbursement of costs payable hereunder shall not exceed the sum Forty- Four Thousand and Ninety Six Dollars ($ 44,096. 00). Invoices for amounts in excess of Forty- Four Thousand and Ninety Six Dollars ($ 44,096. 00) shall not be paid unless additional amounts have been approved in advance of supplying the product, performing the services or incurring the costs and expenses by CITY’s City Manager ( for contracts less than $ 50,000) or City Council ( for contracts $ 50, 000 or more) evidenced by motion duly made and carried and a written contract amendment having been executed.
Compensation and reimbursement of costs and expenses hereunder shall be payable upon VENDOR meeting contract milestones as defined in DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 3 Exhibit B. Billing shall include an itemized statement, briefly describing by task and labor category or cost/ expense items billed.
4. Additional Services. In the event CITY desires the delivery of additional products or performance of additional services not otherwise included within Exhibit A, such products or services shall be authorized in advance by CITY’s City Manager ( for contracts less than $ 50,000) or City Council ( for contracts $ 50,000 or more) by motion duly made and carried. Such amendment to this Agreement shall include a description of the product to be delivered or services to be performed thereunder, the maximum compensation and reimbursement of costs and expenses payable therefor, the time of performance thereof, and such other matters as the parties deem appropriate. Except to the extent modified by written amendment, all other terms and conditions of this Agreement shall be deemed incorporated in each such amendment.
5. Records. VENDOR shall keep and maintain accurate records of products delivered or of all time expended in performing services and costs and expenses incurred relating thereto. Said records shall be available to CITY for review and copying during regular business hours at VENDOR’s place of business or as otherwise agreed upon by the parties.
6. Authorization. This Agreement becomes effective when endorsed by both parties in the space provided below.
7. Documents. All documents, plans, drawings, renderings, and other papers, or copies thereof, as finally rendered, prepared by VENDOR pursuant to the terms of this Agreement, shall, upon preparation and delivery to CITY, become the property of CITY.
8. Relationship of Parties. VENDOR is an independent Contractor and does not act as CITY’s agent in any capacity, whatsoever. VENDOR is not entitled to any benefits that CITY provides to CITY employees, including, without limitation, worker’s compensation benefits or payments, pension benefits, health benefits or insurance benefits. Terms within this Agreement regarding direction apply to and concern the result of the VENDOR’s provision of Services, not the means, methods, or scheduling of the VENDOR’s work. VENDOR shall be solely responsible for the means, methods, techniques, sequences and procedures with respect to its provision of Services under this Agreement. VENDOR shall pay all payroll taxes imposed by any governmental entity and shall pay all other taxes not specifically identified in this Agreement as CITY’s responsibility.
9. Schedule. VENDOR shall adhere to the schedule set forth in Exhibit A; provided, that CITY shall grant reasonable extensions of time for the delivery of products or performance of services occasioned by DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 4 governmental reviews of VENDOR’s work product or other unavoidable delays; provided, further, that such unavoidable delay shall not include strikes, lockouts, work stoppages, or other labor disturbances conducted by, or on behalf of, VENDOR’s officers or employees.
VENDOR acknowledges the importance to CITY of timely delivery of products or services and agrees to put forth its best professional efforts to perform in a manner consistent with that schedule.
10. Force Majeure. Except for defaults of subconsultants at any tier, VENDOR shall not be liable for any excess costs if the failure to perform the Agreement arises from causes beyond the control and without the fault or negligence of VENDOR, including without limitation failure to reasonably mitigate any adverse impacts ( Force Majeure). Force Majeure events include the following:
Acts of God, fires, floods, earthquake, other natural disasters, epidemics and pandemics ( other than COVID- 19 or variants), abnormal weather conditions beyond the parameters otherwise set forth in this Article, nuclear accidents, strikes, lockouts, freight embargos, interruptions in service by a regulated utility, or governmental statutes or regulations enacted or imposed after the fact ( together, “ force majeure events”).
11. VENDOR’s Liability for Injury to Persons or Damage to Property. a. VENDOR shall be liable for damages arising out of injury to the person and/ or damage to City property, City employees, persons designated by City for training, or any other person( s) other than VENDOR’s agents or employees, designated by City for any purpose prior to, during, or subsequent to delivery, installation, acceptance, and use of the Products either at VENDOR’s site or at City’s place of business, provided that the injury or damage was caused by VENDOR’s fault or negligence.
b. VENDOR shall not be liable for damages arising out of or caused by an alteration or an attachment not made or installed by VENDOR, or for damage to alterations or attachments that may result from the normal operation and maintenance of the Products in accordance with the Agreement.
12. Indemnity. To the fullest extent allowed by law, VENDOR hereby agrees to defend, indemnify, and save harmless CITY and Estero Municipal Improvement District, its Council, boards, commissions, officers, employees, directors, volunteers and agents, from and against any and all claims, suits, actions liability, loss, damage, expense, injury ( including, without limitation, economic harm, injury to or death of any person, including an employee of VENDOR or its Subcontractors), cost ( including, without limitation, costs and fees of litigation) of every nature, kind or description, at DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 5 law or equity, which may be brought against, or suffered or sustained by, CITY or Estero Municipal Improvement District, its Council, boards, commissions, officers, employees, directors, volunteers or agents that arise out of, pertain to, or relate to any negligence, recklessness, or willful misconduct of VENDOR, any Subcontractor, anyone directly or indirectly employed or retained by them, or anyone that they control. In the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, the VENDOR shall meet and confer with other parties regarding unpaid defense costs.
The duty of VENDOR to indemnify and save harmless, as set forth herein, shall include the duty to defend as set forth in Section 2778 of the California Civil Code; provided, however, that nothing herein contained shall be construed to require VENDOR to indemnify CITY and Ester o Municipal Improvement District, its Council, boards, commissions, officers, employees and agents against any responsibility or liability in contravention of Section 2782 of the California Civil Code.
VENDOR’s responsibility for such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law.
The defense and indemnification obligations of this agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained within this Agreement.
13. Patent, Copyright and Trade Secret Indemnity.
a. VENDOR shall hold City, its officers, agents and employees, harmless from liability of any nature or kind, including costs and expenses, for infringement or use of any copyrighted or uncopyrighted composition, secret process, patented or unpatented invention, article or appliance furnished or used in connection with the Agreement.
b. VENDOR may be required to furnish a bond to City against any and all loss, damage, costs, expenses, claims and liability for patent, copyright and trade secret infringement.
c. VENDOR, at its own expense, shall defend any action brought against City to the extent that such action is based upon a claim that the Products supplied by VENDOR or the operation of such Products pursuant to a current version of VENDOR supplied operating software infringes a patent or copyright or violates a trade secret.
VENDOR shall pay those costs and damages finally awarded against City in any such action. Such defense and payment shall be conditioned on the following:
DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 6 i. That VENDOR shall be notified within a reasonable time in writing by City of any notice of such claim; and
ii. That VENDOR shall have the sole control of the defense of any action on such claim and all negotiations for its settlement or compromise, provided, however, that when principles of government or public law are involved, City shall have the option to participate in such action at its own expense. d. Should the Products, or the operation thereof, become, or in VENDOR’s opinion are likely to become, the subject of a claim of infringement of a patent or copyright or a trade secret, City shall permit VENDOR at its option and expense either to procure for City the right to continue using the Products, or to replace or modify the same so that they become non infringing. If none of these options can reasonably be taken, or if the use of such Products by City shall be prevented by injunction, VENDOR agrees to take back such Products and make every reasonable effort to assist City in procuring substitute Products. If, in the sole opinion of City, the return of such infringing Products makes the retention of other Products acquired from VENDOR under the Agreement impractical, City shall then have the option of terminating the Agreement, or applicable portions thereof, without penalty or termination charge.
VENDOR agrees to take back such Products and refund any sums City has paid VENDOR less any reasonable amount for use or damage.
e. VENDOR shall have no liability to City under any provision of this clause with respect to any claim of patent, copyright or trade secret infringement which is based upon.
i. The combination or utilization of Products furnished hereunder with equipment or devices not made or furnished by VENDOR; or
ii. The operation of equipment furnished by VENDOR under the control of any operating software other than, or in addition to, the current version of VENDOR supplied operating software; or
iii. The modification by City of the equipment of software furnished hereunder; or
iv. The combination or utilization of software furnished hereunder with non- VENDOR supplied software.
f. VENDOR certifies that it has appropriate systems and controls in place to ensure that City funds will not be used in the performance of the Agreement for the acquisition, operation or maintenance of computer software in violation of copyright laws.
14. Insurance. Prior to execution of this Agreement, VENDOR shall furnish to CITY Certificates of Insurance showing satisfactory proof that it maintains the insurance required by this Agreement as set forth in EXHIBIT D, DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 7 Insurance, which are attached and made a part of this Agreement.
VENDOR shall maintain all required insurance throughout the term of this Agreement and as otherwise provided in EXHIBIT D. In the event VENDOR fails to maintain any required insurance, and notwithstanding Paragraph 3 above, CITY may ( but is not obligated to) purchase such insurance and deduct or retain premium amounts from any sums due VENDOR under this Agreement ( or VENDOR shall promptly reimburse CITY for such expense).
VENDOR shall maintain insurance as required by this Agreement to the fullest amount allowed by law and shall maintain insurance for a minimum of five ( 5) years following completion of this project or service. In the event VENDOR fails to obtain or maintain completed operations coverage as required by this Agreement, the CITY at its sole discretion may purchase the coverage required and the cost will be paid by VENDOR.
15. WORKERS' COMPENSATION. VENDOR certifies that he is aware of the provisions of the Labor Code of the State of California which require every employer to be insured against liability for workers' compensation or to undertake self- insurance in accordance with the provisions of that Code, and VENDOR certifies that he will comply with such provisions before commencing the performance of the work of this agreemen t.
16. NON- DISCRIMINATION. The VENDOR will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The VENDOR will take affirmative action to ensure that applicants are employed and the employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, advancement, demotion, transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The VENDOR shall at all times be in compliance with the requirements of the Federal Americans With Disabilities Act ( Public Law 101- 336) which prohibits discrimination on the basis of disability by public entities. The VENDOR agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non- discrimination clause.
17. Notice. All notices required by this Agreement shall be given to the CITY and VENDOR in writing, by first class mail, postage prepaid, addressed as follows:
CITY: City of Foster City
610 Foster City Boulevard
Foster City, CA 94404- 2299
Attention: ‘ Andra Lorenz, Principal Management Analyst Email Address: alorenz@fostercity. org
DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 8 VENDOR: San Mateo Resource Conservation District
80 Stone Pine Road, Suite 100
Half Moon Bay, CA 94019
Attention: Adria Arko, Senior Program Manager
Email Address: adria@sanmateorcd. org
18. Non- Assignment. This Agreement is not assignable either in whole or in part.
19. Subcontracting. City expressly authorizes the VENDOR to subcontract with San Mateo County farmers, ranchers, or other organizations located in San Mateo County to procure compost for the purpose of facilitating the City’s compliance with its recycled organic waste product procurement requirements under California Senate Bill 1383 in accordance with Exhibit A of this agreement. Subcontractors only procuring compost in accordance with Exhibit A (“Procurement Only Subcontractors”) are exempt from the provisions in 14. Insurance, 5. Records, 13. Patent, Copyright and Trade Secret Indemnity, 20. Substitutions, and Exhibits D and F. Under no circumstances shall the VENDOR obligate City to any financial obligations beyond the do not exceed amount set forth in this agreement through subcontracting.
20. Substitutions. VENDOR may not substitute any Products or Services without City’s advance written consent. VENDOR shall not use any specification in lieu of those contained in the Agreement without City’s advance written consent.
21. Samples.
a. City may require samples of items inspection and specification testing and must be furnished free of expense to City. The samples furnished must be identical in all respects to the products bid and/ or specified in the Agreement.
b. Samples, if not destroyed by tests, may, upon VENDOR’s request made at the time the sample is furnished, be returned at VENDOR’s expense.
22. Newly Manufactured Products. All Products shall be newly manufactured products; used or reconditioned products are prohibited, unless otherwise specified.
23. Packing and Shipment.
a. All Products shall be packed in suitable containers for protection in shipment and storage, and in accordance with applicable DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 9 specifications. Each container of a multiple container shipment shall be identified to:
i. show the number of the container and the total number of containers in the shipment; and
ii. the number of the container in which the packing sheet has been enclosed.
b. All shipments by VENDOR or its subcontractors must include packing sheets identifying City’s Contract number; item number; quantity and unit of measure; description of the Products shipped; and appropriate evidence of inspection, if required.
c. Shipments must be made as specified in the Agreement, as it may be amended, or otherwise directed in writing by City.
24. Transportation Costs and Other Fees or Expenses. No charge for delivery, drayage, express, parcel post, packing, cartage, insurance, license fees, permits, cost of bonds, or for any other purpose will be paid by City unless expressly authorized by and itemized in the Agreement. Unless otherwise directed by City in writing, all Products and components thereof shall be delivered f.o.b. Point of Delivery. VENDOR shall select the means and methods of transportation.
25. Inspection, Acceptance and Rejection.
a. VENDOR and its subcontractors shall provide and maintain a quality assurance system acceptable to City covering Products and Services under the Agreement and will tender to City only Products that have been inspected and found to conform to all requirements.
VENDOR will keep records evidencing inspections and their result, and will make these records available to City during the Agreement performance and for three years after final payment. VENDOR shall permit City to review procedures, practices, processes and related documents to determine the acceptability of VENDOR’s quality assurance system or other business practices related to performance of the Agreement.
b. All Products may be subject to inspection and test by City or its authorized representatives.
c. VENDOR and its subcontractors shall provide all reasonable facilities for the safety and convenience of inspectors at no additional cost to City. VENDOR shall furnish to inspectors all information and data as may be reasonably required to perform their inspection. d. All Products may be subject to final inspection, test and acceptance by City, notwithstanding any payment or other inspection. e. City shall give written notice of rejection of Products delivered or Services performed within a reasonable time after receipt of such Products or performance of such Services. Such notice of rejection will state the respects in which the items do not substantially conform DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 10 to their specifications. If City does not provide such notice of rejection within thirty ( 30) days of delivery, unless otherwise specified in the Agreement, such Products and Services will be deemed to have been accepted. Acceptance shall not be construed to waive any warranty rights that City might have at law or by express reservation in the Agreement with respect to any nonconformity, or any other rights provided by law.
26. Compliance With Statutes and Regulations. VENDOR covenants that in the performance of the Agreement it will comply with all applicable statutes, rules, regulations and orders of the United States, the State and City, and shall defend, indemnify and hold the City harmless against any loss, cost, damage or liability by reason of VENDOR’s violation of this provision.
27. National Labor Relations Board Certification. VENDOR swears under penalty of perjury that no more than one final, unappealable finding of contempt of court by a federal court has been issued against VENDOR within the immediately preceding two- year period because of VENDOR’s failure to comply with an order of the National Labor Relations Board.
28. Covenant Against Gratuities. VENDOR warrants that no gratuities ( in the form of entertainment, gifts, or otherwise) were offered or giv en by VENDOR, or any agent or representative of VENDOR, to any officer or employee of City with a view toward securing the Agreement or securing favorable treatment with respect to any determinations concerning the performance of the Agreement. For breach or violation of this warranty, City shall have the right to terminate the Agreement, either in whole or in part, and any loss or damage sustained by City in procuring on the open market any items which VENDOR agreed to supply shall be borne and paid for by VENDOR. The rights and remedies of City provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or in equity.
29. Amendments. This Agreement may be amended or modified only by written agreement signed by both parties.
30. Validity. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
31. Governing Law. This Agreement shall be deemed to have been executed in the County of San Mateo, California. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California, excluding its conflict of laws rules. Any suit or action initiated by either party shall be brought in the County of San Mateo, California unless the parties agree otherwise in a written amendment to this Agreement. In the event of litigation between the parties hereto to enforce DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 11 any provision of the Agreement, the unsuccessful party will pay the reasonable attorney’s fees and expenses of litigation of the successful party.
32. Mediation. Should any dispute arise out of this Agreement, the parties shall meet in mediation and attempt to reach a resolution with the assistance of a mutually acceptable mediator. Neither party shall be permitted to file legal action without first meeting in mediation and making a good faith attempt to reach a mediated resolution. The costs of the mediator, if any, shall be paid equally by the parties. If a mediated settlement is reached neither party shall be deemed the prevailing party for purposes of the settlement and each party shall bear its own legal costs.
33. Conflict of Interest. VENDOR represents and warrants that it presently has no interest, and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of work and services required under this Agreement. Without limitation, VENDOR represents to and agrees with CITY that VENDOR has disclosed any potential conflict of interest, and will have no future conflict of interest, in providing CITY services hereunder, including but not limited to, any interest ( financial, share ownership, shared management, shared directors, or reporting responsibilities) VENDOR may presently have, or will have in the future, with respect to any other person or entity ( including but not limited to potential VENDORs, consultants, contractors, or regulatory agency) which may have an interest in the subject matter of the Services.
34. Submission of Bid. Pursuant to Government Code Sections 4552, 4553, and 4554, the following provisions are incorporated herein. a. In submitting a bid to City, VENDOR offers and agrees that if the bid is accepted, it will assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act 15 U.S.C. 15) or under the Cartwright Act ( Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of products, material, or services by the VENDOR for sale to City pursuant to the solicitation.
Such assignment shall be made and become effective at the time City tenders final payment to the VENDOR.
b. If City receives, either through judgment or settlement, a monetary recovery for a cause of action assigned under this chapter, the assignor shall be entitled to receive reimbursement for actual legal costs incurred and may, upon demand, recover from City any portion of the recovery, including treble damages, attributable to overcharges that were paid by the assignor but were not paid by City as part of the bid price, less the expenses incurred in obtaining that portion of the recovery.
DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 12 c. Upon demand in writing by the assignor, the assignee shall, within one year from such demand, reassign the cause of action assigned under this part if the assignor has been or may have been injured by the violation of law for which the cause of action arose and i. The assignee has not been injured thereby, or
ii. The assignee declines to file a court action for the cause of action.
35. Confidentiality. Any information, whether proprietary or not, made known to or discovered by VENDOR during the performance of or in connection with the Agreement for City, will be kept confidential and not be disclosed to any other person. VENDOR will immediately notify City in writing if it is requested to disclose any information made known to or disc overed by during the performance of or in connection with the Agreement. These confidentiality provisions and limitations shall remain fully effective indefinitely after VENDOR’s completion of the Agreement.
36. Waiver of Default. Waiver of any default by either party to this Agreement shall not be deemed to be waiver of any subsequent default. Waiver or breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach, and shall not be construed to be a modification of the terms of this Agreement unless this Agreement is modified as provided below.
37. Entire Agreement. This Agreement, including Exhibits A, B C, D, E and F, comprises the entire Agreement.
Signatures on Next Page]
DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 13 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date first above written by their respective officers duly authorized in that behalf.
CITY OF FOSTER CITY
Dated: _________________________________ Stefan Chatwin, City Manager
ATTEST:
Dated: ________________________________ Priscilla Schaus, City Clerk
By: Yelena Cappello, Deputy City Clerk
APPROVED AS TO FORM
Dated:
Benjamin Stock, City Attorney
VENDOR
Dated:
Kellyx Nelson, Executive Director
DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 8/ 20/ 2022 | 6: 03 PM PDT
8/ 22/ 2022 | 7: 02 AM PDT
8/ 22/ 2022 | 9: 40 AM PDT
8/ 22/ 2022 | 1: 11 PM PDT
14 EXHIBIT A
SCOPE OF WORK and SCHEDULE
FOR
COMPOST BROKER PROGRAM
Scope of Deliverables:
Deliverables under this agreement shall consist of education and outreach to expand demand for compost by local agricultural concerns, procurement of identified amounts of SB 1383- compliant compost and documentation of same as described in this Exhibit.
Scope of Services:
In consideration of the payments set forth in this agreement, San Mateo Resource Conservation District (“ VENDOR”) shall provide the following services:
VENDOR shall develop and coordinate a compost procurement and application program that will assist the City of Foster City (“City”) to meet its recovered organic waste product procurement requirements under CA Senate Bill 1383 ( SB 1383). The program will consist of the following aspects:
1. Outreach & Technical assistance:
o VENDOR shall conduct outreach to agricultural producers such as farmers, ranchers, and landowners about the compost procurement and application program established under this agreement, the benefits of compost use, and carbon farming. VENDOR shall translate any material created to conduct outreach to Spanish and Simplified Chinese as needed. o VENDOR shall provide agricultural producers throughout the County with technical assistance to incorporate compost into their agricultural operations, such as soil sampling, identifying compost application rates, etc. o VENDOR shall provide agricultural producers with information for funding opportunities for compost application, such as CDFA’s Healthy Soils Program and NRCS’s farm bill programs.
2. Compost Procurement
o VENDOR shall identify and recruit compost procurement and application projects for the compost procurement and application program established under this agreement that will help City meet its SB 1383 recovered organic waste procurement requirements.
o VENDOR shall cover 75% of compost/ hauling/ spreading costs or provide funding as cost- share for other funding sources ( whichever is less). If the program is oversubscribed, VENDOR shall develop a system for equitable distribution of compost or ranking system to identify projects.
DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 15 o VENDOR shall track procurement credits attributed to the City, and where necessary, shall ensure that a signed agreement City and project owner/ compost recipient is in place prior to the purchase of compost. This shall be done in order for City to claim SB 1383 procurement credit for procured compost in instances where the VENDOR is not directly purchasing compost procured under this agreement.
o VENDOR shall procure high- quality compost that is eligible to count City SB 1383 procurement target as described in the CA Senate Bill 1383 regulations, including Cal. Code Regs. title 14 §§ 18993. 1 – 18993. 4.
3. Record Keeping & Reporting
o VENDOR shall keep documentation proving that SB 1383 procurement credit attributed to City under this agreement is solely for the use of the City and not claimed by any other entity or jurisdiction for their SB 1383 reporting.
o VENDOR shall collect an executed release of liability waiver from all individuals who receive compost through the compost procurement and application program established under this agreement. VENDOR shall provide all executed waivers to City upon request.
o VENDOR shall collect an executed photo release form from all individuals who receive compost through the compost procurement and application program established under this agreement allowing City to use photos taken under this agreement in public presentations, reports, or other outreach.
VENDOR shall provide all executed forms to the City upon request. o VENDOR shall document compost application projects photos and/ or videos footage.
o VENDOR shall calculate the net carbon sequestration associated with this agreement and attributed to the City.
o VENDOR shall provide City with all procurement records associated with this agreement and required for the City’s SB 1383 recycled organic waste procurement compliance recordkeeping and reporting.
4. Scaling Compost Procurement Opportunities
o VENDOR shall identify equipment and infrastructure necessary to increase compost use among agricultural producers in San Mateo County, provide cost estimates, and, if deemed necessary by the VENDOR, design an equipment sharing program.
o VENDOR shall explore innovative strategies for the jurisdictions within San Mateo County to provide ongoing funding for this program beyond the term of the CalRecycle SB 1383 local assistance grant.
5. Administration
o Foster City shall receive at least 7.783% of the SB 1383 procurement credits associated with the contractor’s compost procurement and application program. VENDOR shall procure a minimum of 638. 281 tons of DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 16 SB- 1383 compliant compost on behalf of the City over the term of the agreement.
o Each quarterly invoice shall be accompanied by a progress report, which shall include updates on the VENDOR’s outreach, technical assistance, and compost procurement and application efforts completed during the reporting period. The progress report may also include images of compost application projects for the jurisdiction to use in public reports, presentations, or other outreach.
6. Procurement Only Subcontractors
o City expressly authorizes VENDOR to subcontract with San Mateo County farmers, ranchers, and other organizations located in San Mat eo County to procure compost for application on land they own or manage (“Procurement Only Subcontractors”) in order to meet the VENDOR’s requirements under this agreement and facilitate the County’s compliance with its recovered organic waste product procurement requirements under SB 1383.
VENDOR shall require Procurement Only Subcontractors to provide an executed release of liability form and executed photo release form prior to procuring any compost on the contractor’s behalf. VENDOR shall require all Procurement Only Subcontractors to provide VENDOR with all procurement records associated with the Procurement Only Subcontractor’ s compost procurement required for the County’s SB 1383 recycled organic waste procurement compliance recordkeeping and reporting. Under no circumstances shall VENDOR obligate the City to any financial obligations beyond the do not exceed amount for this agreement through subcontracting.
Project Schedule
Activities commence upon execution this agreement in coordination with execution of agreement with other participating agencies and shall continue through March 31, 2024.
Half of compost procured under this agreement shall be procured by December 31, 202 2, and half of the compost procured under this agreement shall be procured between January 1 and December 31, 2023.
VENDOR shall submit a final report by January 30, 2024, summarizing all outreach, technical assistance, and compost procurement and application efforts completed through this agreement; all costs associated with the project; the SB 1383 procurement and carbon sequestration credit accredited to the City; and a summary of the needs, strategies, opportunities identified in Task 4, and any other relevant information.
DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 17 EXHIBIT B
VENDOR’ S FEES and PAYMENT MILESTONES
Summary
The City of Foster City will receive and therefore will be responsible for $ 44,096. 00 total over the agreement term, which is 7.783% of the total two- year project contract cost of 566, 540. 88.
Project Payment Schedule
Milestone Amount of Payment
VENDOR shall submit invoices quarterly Based upon actual procurement DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 18 EXHIBIT C
ADDITIONAL TERMS and CONDITIONS
None
DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 19 EXHIBIT D
INSURANCE
VENDOR shall provide, in addition to the Certificates of Insurance, original Endorsement affecting the coverages specified in herein on the attached form. No substitute form will be accepted.
This is an Exhibit to, and made a part of and incorporated by referen ce to the Agreement dated Date of Agreement, by and between Vendor Name, hereinafter referred to as " Vendor”, and the City of Foster City, hereinafter referred to as " City", providing for professional services.
1. Vendor' s Duty to Show Proof of Insurance. Vendor, in order to protect City and its Council members, officials, agents, officers, and employees against all claims and liability for death, injury, loss and damage as a result of Vendor' s acts, errors, or omissions in connection with the performance of Vendor' s obligations, as required in this Agreement, shall secure and maintain insurance as described below. Vendor shall not perform any work under this Agreement until Vendor has obtained all insurance required under this section and the required certificates of insurance and all required endorsements have been filed with the City' s authorized insurance representative, insurance Tracking Services Inc. ( ITS). Receipt of evidence of insurance that does not comply with all applicable insurance requirements shall not constitute a waiver of the insurance requirements set forth herein. The required documents must be signed by the authorized representative of the insurance company shown on the certificate. Upon request, Vendor shall supply proof that such person is an authorized representative thereof, and is authorized to bind the named underwriter( s) and their company to the coverage, limits and termination provisions shown thereon, Vendor shall promptly deliver to ITS a certificate of insurance, and all required endorsements, with respect to each renewal policy, as necessary to demonstrate the maintenance of the required insurance coverage for the term specified herein. Such certificates and endorsements shall be delivered to ITS prior to the expiration date of any policy and bear a notation evidencing payment of the premium thereof if so requested. Vendor shall immediately pay any deductibles and self- insured retentions under all required insurance policies upon the submission of any claim by Vendor or City as an additional insured.
1.1 Insurance Requirements
Commercial General Liability Insurance
Commercial General Liability Insurance including, but not limited to, Contractual Liability Insurance ( specifically concerning the indemnity provisions of this Agreement with the City ), liability for slander, false arrest and invasion of privacy arising out of professional services rendered hereunder, Personal Injury ( including bodily injury and death), and Property Damage for liability arising out of Vendor' s performance of services under this Agreement. The Commercial General Liability insurance shall co ntain no exclusions or limitation for independent contractors working on the behalf of the named insured. The amount of said insurance coverage required by this Agreement shall be the policy limits, which shall be at least two million, five hundred thousand dollars ($ 2,500, 000) each occurrence and two million, five hundred thousand dollars ($ 2,500, 000) aggregate.
Please note, the City will require a separate additional insured endorsement for the Commercial General Liability policy, listing the “ City of Foster City, its Council members, officials, agents, officers, and employees”.
Business Automobile Liability Insurance
Automobile Liability Insurance against claims of Personal Injury ( including bodily injury and death) and Property Damage covering any vehicle and/ or all owned, leased, hired and non- owned vehicles used in the performance of Services pursuant to this Agreement with coverage DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 20 equal to the policy limits, which shall be at least two million dollars ($ 2,000, 000) each occurrence.
W orkers' Compensation Insurance
VENDOR shall submit written proof that VENDOR is insured against liability for workers' compensation in accordance with the provisions of section 3700 of the California Labor Code.
VENDOR shall require any Subcontractors to provide workers' compensation for all of the Subcontractors' employees, unless the Subcontractors' employees are covered by the insurance afforded by VENDOR. If any class of employees engaged in work or services performed under this Agreement is not covered by California Labor Code section 3700, VENDOR shall provide and/ or require each Subcontractor to provide adequate insurance for the coverage of employees not otherwise covered. Vendor shall also maintain employer' s liability insurance with limits of one million dollars ($ 1,000, 000) for bodily injury or disease.
Professional Liability Insurance
Professional Liability ( Errors and Omissions) Insurance, for liability arising out of, or in connection with, all negligent acts, errors or omissions in connection with services to be provided under this Agreement, with no exclusion for claims of one insured against another insured, with coverage equal to the policy limits, which shall not be less than five million dollars ($ 5,000, 000) per occurrence and five million dollars ($ 5,000, 000) aggregate.
1.2 Self- Insured Retention
Any self- insured retentions in excess of $ 100, 000 must be declared on the Certificate of insurance or other documentation provided to City and must be approved by the Cit y Risk Manager.
1.3 Claims- Made Basis Coverage
If any of the insurance coverages required under this Agreement is written on a claims -made basis, Vendor, at Vendor' s option, shall either ( i) maintain said coverage for at least five ( 5) years following the termination of this Agreement with coverage extending back to the effective date of this Agreement; ( ii) purchase an extended reporting period of not less than five ( 5) years following the termination of this Agreement; or ( iii) acquire a full prior acts provision on any renewal or replacement policy.
2. City as Additional Insured
On Vendor' s Commercial General Liability and Automobile policies, the City, its Council members, officers, directors, agents, employees, and volunteers, shall be named as additional insured' s, but only with respect to liability arising out of the activities of the named insured. Any endorsement shall be provided using one of the following three options: ( i) on ISO form CG 20 10 1 1 85; or ( ii) on ISO form CG 20 37 10 01 plus either ISO form CG 20 10 10 01 or CG 20 33 10 01; or ( iii) on such other forms which provide coverage at least equal to or better than form CG 20 10 1 1 85.
3. Insurance terms and conditions:
3.1 Cancellation of Insurance
The above stated insurance coverages required to be maintained by Vendor shall be maintained until the completion of all of Vendor' s obligations under this Agreement except as otherwise indicated herein. Each insurance policy supplied by Vendor shall not be suspended, voided, cancelled or reduced in coverage or in limits except after ten ( 10) days written notice by Vendor in DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 21 the case of non- payment of premiums, or thirty ( 30) days written notice in all other cases. This notice requirement does not waive the insurance requirements stated herein. Vendor shall immediately obtain replacement coverage for any insurance policy that is terminated, canceled, non- renewed, or whose policy limits have been exhausted or upon insolvency of the insurer that issued the policy.
3.2 All insurance shall be issued by a company or companies admitted to do business in California and listed in the current " Best' s Key Rating Guide" publication with a minimum rating of A-; VII Any exception to these requirements must be approved by the City Risk Manager.
3.3 If Vendor is, or becomes during the term of this Agreement, self -insured or a member of a self- insurance pool, Vendor shall provide coverage equivalent to the insurance coverages and endorsements required above. The City will not accept such coverage unless the City determines, in its sole discretion and by written acceptance, that the coverage proposed to be pro vided by Vendor is equivalent to the above- required coverages.
3.4 For any claims related to the Agreement, the Vendor’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self- insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Vendor’s insurance and shall not contribute with it.
3.5 Insurance coverages in the minimum amounts set forth herein shall not be construed to relieve Vendor for any liability, whether within, outside, or in excess of such coverage, and regardless of solvency or insolvency of the insurer that issues the coverage; nor shall it preclude the City from taking such other actions as are available to it under any other provision of this Agreement or otherwise in law.
3.6 Failure by Vendor to maintain all such insurance in effect at all times required by this Agreement shall be a material breach of this Agreement by Vendor. City, at its sole option, may terminate this Agreement and obtain damages from Vendor resulting from said breach.
Alternatively, City may purchase such required insurance coverage, and without further notice to Vendor, City shall deduct from sums due to Vendor any premiums and associated costs advanced or paid by City for such insurance. If the balance of monies obligated to Vendor pursuant to this Agreement are insufficient to reimburse City for the premiums and any associated costs, Vendor agrees to reimburse City for the premiums and pay for all costs associated with the purchase of said insurance. Any failure by City to take this alternative action shall not relieve Vendor of its obligation to obtain and maintain the insurance coverages required by this Agreement.
3.7 Should any of the required insurance ( other than errors and omissions insurance) be provided under a form of coverage that includes a general annual aggregate limit or provides that claims investigation or legal defenses costs be included in such general aggregate limit, such general annual aggregate limit shall be double the occurrence or claims limit specified above.
3.8 City may ( but is under no obligation to) sec ure project- specific insurance, wrap- up insurance, or administer an owner controlled insurance program (" OCIP"), in which case Vendor and its subcontractors shall communicate this fact to their insurance carriers and request that the risk of this project be excluded from their practice policies. Vendor' s fees under this Agreement and the fee of its subcontractors under subcontractor agreements) shall be reduced by the amount of insurance premiums that may be avoided by Vendor and its subcontractors by virtue of the City' s obtaining the project- specific insurance, wrap- up insurance or administering an OCIP, and the exclusion of this project from coverage of Vendor' s and subcontractors policies. Construction Manager and its subcontractors shall afford City access to their books and records and cooperate with City in verifying the amount of savings realized.
DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 22 ATTACHED
1. Insurance Coverage Form
DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 23 EXHIBIT D
This INSURANCE COVERAGE FORM modifies or documents insurance provided under the following:
Named Insured: Effective Work Date( s):
Description of Work/ Locations/ Vehicles:
ADDITIONAL INSURED: City of Foster City/ Estero Municipal Improvement District ( CITY) 610 Foster City Boulevard, Foster City, CA 94404
Attention: _________________________________
Contract Administrator
Endorsement and Certificates of Insurance Required
The Additional Insured, its elected or appointed officers, officials, employees and volunteers are included as insureds with regard to damages and defense of claims arising from: ( Check all that apply)
Insurer Policy
No.
General Liability: ( a) activities performed by or on behalf of the Named Insured, ( b) products and completed operations of the Named Insured, ( c) premises owned, leased occupied or used by the Nam ed Insured, and/ or ( d) permits issued for operations performed by the Named Insured. { Note: MEETS OR EXCEEDS ISO Form # CG 20 10 11 85}
Auto Liability: the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Named Insured, regardless of whether liability is attributable to the Named Insured or a combination of the Named Insured and the Additional Insured, its elected or appointed officers, officials, employees or volunteers.
Other:
Certificates of Insurance Required ( no endorsement needed) ( Check all that apply) Insurer Policy No.
Workers Compensation: work performed by employees of the Named Insured while those employees are engaged in work under the simultaneous directions and control of the Named Insured and the Additional Insured.
Professional Liability:
PRIMARY/ NON- CONTRIBUTORY: This insurance is primary and is not additional to or contributing with any other insurance carried by or for the benefit of Additional Insureds.
SEVERABILITY OF INTEREST: The insurance afforded by this policy applies separately to each insured who is seeking coverage or against whom a claim is made or a suit is brought, except with respect to the insurer’s limit of liability.
PROVISIONS REGARDING THE INSURED' S DUTIES AFTER ACCIDENT OR LOSS: Any failure to comply with reporting provisions of the policy shall not affect coverage provided to the Additional Insured, its elected or appointed officers, officials, employees, or volunteers.
CANCELLATION NOTICE. The insurance afforded by this policy shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty ( 30) days' prior written notice ( ten ( 10) days if canceled due to non -payment) by regular mail return receipt requested has been given to the Additional Insured. Such notice shall be addressed as shown above.
WAIVER OF SUBROGATION: The insurer( s) named above agree to waive all rights of subrogation against the CITY, its elected or appointed officers, officials, agents, volunteers and employees for losses paid under the terms of this policy which arise from work pe rformed by the Named Insured for the CITY.
Nothing herein contained shall vary, alter or extend any provision or condition of the Policy other than as above stated.
SIGNATURE OF INSURER OR AUTHORIZED REPRESENTATIVE OF THE INSURER I, ___________________________________________________________( print/ type name), warrant that I have authority to bind the above- named insurance company and by my signature hereon do so bind this company.
SIGNATURE OF AUTHORIZED REPRESENTATIVE ( original signature required) ORGANIZATION: TITLE:
ADDRESS:
TELEPHONE: ( ) DATE ISSUED:
DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 24 EXHIBIT E
SPECIAL TERMS and CONDITIONS
None
DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 25 EXHIBIT F
COVID- 19 AMENDMENT/ ATTACHMENT
Vendor Agreement Form)
This COVID- 19 Amendment/ Attachment amends the Agreement between City of Foster City (“ City”) and San Mateo Resource Conservation District (“ Vendor”) dated
1. Definitions
A. The 2019 novel coronavirus and the disease it causes are collectively referred to herein as “COVID- 19”.
B. A “COVID- 19 Condition” is something attributable to COVID- 19 not caused by the Vendor ( which for purposes herein includes all subcontractors) and beyond its reasonable control including but not limited to COVID- 19 Proclamations and supply chain disruptions due to COVID- 19, and other circumstances concerning COVID- 19 not caused by the Vendor and which are beyond its reasonable control.
C. A “COVID- 19 Proclamation” includes but is not limited to orders, directives and guidance concerning COVID- 19 that have been issued, and which may be issued from time to time, by public agencies or regulatory bodies, the CDC or OSHA or Cal/ OSHA, including without limitation the Cal/ OSHA COVID- 19 Prevention Emergency Temporary Standards. Vendor acknowledges that those orders, directives and guidance may require the Project to shut down or otherwise increase the Vendor’s cost or time of performance by calling for things such as social distancing and the use of personal protective equipment. In the event of conflicting COVID- 19 Proclamations, the Vendor shall follow the most applicable, restrictive and newest COVID- 19 Proclamations.
D. An “Unknown COVID- 19 Condition” is a COVID- 19 Condition the Vendor did not know about, and reasonably should not have known about, as of the date the Vendor submitted its proposal. The requirements contained in COVID- 19 Proclamations issued before submission of a proposal are not Unknown COVID- 19 Conditions, and the Vendor will be deemed to have knowledge of those requirements.
E. An “Unknown COVID- 19 Cost” is a cost that: ( i) is solely attributable to an Unknown COVID- 19 Condition; ( ii) is reasonable and unavoidable under the circumstances; ( iii) is not the result of the Vendor’s failure to comply with the contract documents or a COVID- 19 Proclamation; and ( iv) is not the result of a sub contractors failure to comply with a COVID- 19 Proclamation in connection with the performance of the Services.
2. COVID- 19 Conditions and Proposal. Vendor is expected to know and is deemed to have known about COVID- 19 Conditions when it submits its proposal, and COVID- 19 Conditions must be accounted for in the Vendor’s price and schedule. In order to be DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 26 entitled to any relief from a COVID- 19 Condition, the Vendor must demonstrate that the issue, cost or delay is due to an Unknown COVID- 19 Condition.
3. Compliance with COVID- 19 Proclamations.
A. Vendor shall comply with COVID- 19 Proclamations in the performance of the Services, irrespective of when the COVID- 19 Proclamations are issued, and as they pertains to performance of the Services. The cost of such compliance is non- compensable, except as otherwise expressly stated herein.
B. Vendor is responsible to ensure that its subcontractors and suppliers comply with COVID- 19 Proclamations at all times in connection with the performance of their Services.
4. Delay. The Vendor is entitled to a reasonable time extension for an Unknown COVID - 19 Condition. Such time extension is non- compensable.
5. City Directed Suspension. The City may suspend Services due to COVID- 19 health concerns, even though the Vendor may be allowed to proceed with the Services based on COVID- 19 Proclamations. The City may suspend the Services for its convenience.
The Vendor is entitled to a time extension for a City Directed Suspension, and the contract amount will be equitably adjusted if and to the extent Vendor incurs increased costs that are Unknown COVID- 19 Costs.
6. Compensation for COVID- 19 Costs. City will reimburse the Vendor for Unknown COVID- 19 Costs which are not included in the schedule of values.
7. Safe Work Practices. Vendor shall implement safe work practices recommended by CDC or OSHA or Cal/ OSHA, which may include, inter alia, screening all employees, subcontractors, or others (“worker( s)”) at all locations where Services are performed for signs and symptoms of COVID- 19; adopting staggered work schedules, e.g., providing alternating workdays or extra shifts, to reduce the total number of employees on a site at any given time and to ensure physical distancing; identifying choke points where workers are forced to stand together, such as hallways and elevators, ingress and egress points, break areas, and buses, and implement policies to maintain social dista ncing; coordinating deliveries in line with the employer' s minimal contact and cleaning protocols; and instituting a rigorous housekeeping program to reduce dust levels at all exterior locations. Vendor remains fully responsible for following and complying with changes to recommended safe work practices from time to time.
8. Monitoring and Reporting. City may require the Vendor to actively monitor the health of its workers through temperature checks and questionnaires of major COVID -19 symptoms, including but not limited to cough, fever above 100. 4 degrees Fahrenheit and shortness of breath. Vendor shall immediately report to City any outbreaks of COVID -19 among its workers. The Vendor shall not knowingly allow any worker who has tested positive with COVID- 19 to enter a City building. In the event of an outbreak or an exposure DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54 27 to COVID- 19, the City may impose appropriate mitigation strategies which may be in consultation with the public health officer.
9. Conflicts. In the event of an inconsistency between this COVID -19 Amendment and the Agreement, this Addendum shall control.
IN WITNESS WHEREOF, the City and Vendor have executed this Covid- 19 Amendment as of the date set forth above.
VENDOR: CITY:
Kellyx Nelson, Executive Director Stefan Chatwin, City Manager DocuSign Envelope ID: 85E7297D- 2425- 4B99- A797- 542EBDF2BB54