Attachment 2 - Pre-purchase Package — Foster City City Council, May 20, 2024

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VENDOR AGREEMENT FOR PRODUCTS AND/OR SERVICES
FOR
CIPP 455-705 EMID Emergency Generator Replacement

This Agreement is m ade and entered into as of the _____ day of _______, 20___ by and between the Estero Municipal Improvement District, hereinafter called "DISTRICT," and _________, hereinafter called "VENDOR."

RECITALS

This Agreement is entered into with reference to the following facts and circumstances:

A. That DISTRICT desires to engage VENDOR to provide a product and/or services to the DISTRICT;

B. That VENDOR is specially trained, experienced and competent to perform and has agreed to provide the product and/or services to the DISTRICT and;

C. That the DISTRICT 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 2 Updated 1/18/2022

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, DISTRICT may with or without cause, direct VENDOR to suspend, delay or interrupt s ervices, in whole or in part, for such periods of time as DISTRICT may determine in its sole discretion. ( c) DISTRICT may terminate p erformance 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 DISTRICT’s written notice to VENDOR demanding such cure, in which case VENDOR shall be liable to DISTRICT for all loss, cost, expense, damage and liability resulting from such breach and termination. (d) DISTRICT may terminate performance of the s ervices under this Agreement in whole, or from time to time in part, for convenience, whenever DISTRICT determines that such termination is in DISTRICT’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 . DISTRICT 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 _____________________ ($________________). Invoices for amounts in excess of _____________________ ($________________) 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 DISTRICT’s District Manager (for contracts less than $50,000) o r District Board of Directors (for contracts $5 0,000 or more) evidenced by motion duly made and carried and a written contract amendment having been executed.

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Compensation and reimbursement of costs and expenses hereunder shall be payable upon VENDOR meeting contract milestones as defined in 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 DISTRICT 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 DISTRICT’s District Manager (for contracts less than $50,000) or District Board of Directors (for contracts $5 0,000 or more) by motion duly made and carried. Such amendment to this Agreement shall include a descr iption 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 DISTRICT 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 DISTRICT, become the property of DISTRICT

8. Relationship of Parties. VENDOR is an independent Contractor and does not act as DISTRICT’s agent in any capacity, whatsoever. VENDOR is not entitled to any benefits that DISTRICT provides to DISTRICT 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 ident ified in this Agreement as DISTRICT ’s responsibility.
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9. Schedule. VENDOR shall adhere to the schedule set forth in Exhibit A; provided, that DISTRICT shall grant reasonable extensions of time for the delivery of products or performance of services occasioned by 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 DISTRICT 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 . Excep t 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”).

[For consideration if applicable :] Any Force Majeure event with a duration in excess of [ TBD by Owner —recommend not less than 30 ] days entitles either party to terminate this Agreement with written notice to the other party, without further penalty or compensation.

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 DISTRICT property, DISTRICT
employees, persons designated by DISTRICT for training, or any other person(s) other than VENDOR’s agents or employees, designated by DISTRICT for any purpose prior to, during, or subsequent to delivery, installation, acceptance, and use of the Products either at VENDOR’s site or at DISTRICT’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.
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12. Indemnity. To the fullest extent allowed by law, VENDOR hereby agrees to defend, indemnify, and save harmless DISTRICT and City of Foster City, 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 Sub contractors), cost (including, without limitation, costs and fees of litigation) of every nature, kind or description, which may be brought against, or suffered or sustained by, DISTRICT or City of Foster City, 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 DISTRICT and City of Foster City , 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 DISTRICT, 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 DISTRICT against any and all loss, damage, costs, expenses, claims and liability for patent, copyright and trade secret infringement.
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c. VENDOR, at its own expense, shall defend any action brought against DISTRICT 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 DISTRICT in any such action. Such defense and payment shall be conditioned on the following:
i. That VENDOR shall be notified within a reasonable time in writing by DISTRICT 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, DISTRICT 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, DISTRICT shall permit VENDOR at its option and expense either to procure for DISTRICT 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 DISTRICT shall be prevented by injunction, VENDOR agrees to take back such Products and make every reasonable effort to assist DISTRICT in procuring substitute Products. If, in the sole opinion of DISTRICT, the return of such infringing Products makes the retention of other Products acquired from VENDOR under the Agreement impractical, DISTRICT 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 DISTRICT has paid VENDOR less any reasonable amount for use or damage.
e. VENDOR shall have no liability to DISTRICT 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 DISTRICT of the equipment of software furnished hereunder; or
iv. The combination or utilization of software furnished hereunder with non-VENDOR supplied software.
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f. VENDOR certifies that it has appropriate systems and controls in place to ensure that DISTRICT 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 DISTRICT Certificates of Insurance showing satisfactory proof that it maintains the insurance required by this Agreement as set forth in EXHIBIT D , 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, a nd notwithstanding Paragraph 3 above, DISTRICT 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 DISTRICT for such expense).

VENDOR shall maintain insurance as required by this Agreement to the fullest amount allowed by law and shall maintain in surance 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 VENDOR 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 agreement.

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 8 Updated 1/18/2022

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 DISTRICT and VENDOR in writing, by first class mail, postage prepaid, addressed as follows:

DISTRICT: Estero Municipal Improvement District
610 Foster City Boulevard
Foster City, CA 94404-2299
Attention: _Jen Chen______

VENDOR: Name
Address
City, State, Zip
Attention: _____________
Email Address:_________

18. Non-Assignment. This Agreement is not assignable either in whole or in part.

19. Substitutions. VENDOR may not substitute any Products or Services without DISTRICT’s advance written consent. VENDOR shall not use any specification in lieu of those contained in the Agreement without DISTRICT’s advance written consent.

20. Warranty. Unless otherwise specified, the warranties contained in the Agreement begin after acceptance has occurred.

a. VENDOR warrants that all Products and Services furnished hereunder will conform to the requirements of the Agreement (including all descriptions, specifications and drawings made a part hereof). All Products will be merchantable, fit for their intended purposes, free from all defects in materials and workmanship and to the extent not manufactured pursuant to detailed designs furnished by DISTRICT, free from defects in design. No approval of designs, specifications or other Services furnished by VENDOR shall relieve VENDOR of its obligations under this warranty. b. All warranties, including special warranties specified elsewhere herein, shall inure to DISTRICT, its successors and assigns, and any users of the Products or Services.

21. Samples.

a. DISTRICT may require samples of items inspection and specification testing and must be furnished free of expense to 9 Updated 1/18/2022

DISTRICT. 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 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 DISTRICT’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 DISTRICT.

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 DISTRICT unless expressly authorized by and itemized in the Agreement. Unless otherwise directed by DISTRICT 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 DISTRICT covering Products and Services under the Agreement and will tender to DISTRICT 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 DISTRICT during the Agreement performance and for three years after final payment. VENDOR shall permit DISTRICT to review procedures, practices, processes and related documents 10 Updated 1/18/2022

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 DISTRICT 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 DISTRICT. 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 DISTRICT, notwithstanding any payment or other inspection. e. DISTRICT 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 to their specifications. If DISTRICT 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 DISTRICT 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 DISTRICT, and shall defend, indemnify and hold the DISTRICT 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 given by VENDOR, or any agent or representative of VENDOR, to any officer or employee of DISTRICT 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, DISTRICT shall have the right to terminate the Agreement, either in whole or in part, and any loss or damage sustained by DISTRICT in procuring on the open market any items which VENDOR agreed to 11 Updated 1/18/2022

supply shall be borne and paid for by VENDOR. The rights and remedies of DISTRICT 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 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 DISTRICT that VENDOR has disclosed any potential conflict of interest, and will have no future conflict of interest, in providing DISTRICT 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.

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34. 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 DISTRICT, will be kept confidential and not be disclosed to any other person. VENDOR will immediately notify DISTRICT in writing if it is requested to disclose any information made known to or discovered 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.

35. 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.

36. Entire Agreement. This Agreement, including Exhibits A, B C, D, E, and F, comprises the entire Agreement.

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.

ESTERO MUNICIPAL IMPROVEMENT DISTRICT

Dated: _________________________________ ____________________, District Manager
(for contracts less than $50,000)
[REMOVE signature line if $50,000 or more]

Dated: _________________________________ Patrick Sullivan, President
(for contracts $50,000 or more)
[REMOVE signature line if less than $50,000]

ATTEST:

Dated: ________________________________ Priscilla Schaus, District Secretary

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APPROVED AS TO FORM

Dated:

Benjamin Stock, District Legal Counsel

VENDOR

Dated:

Type Name & Title of VENDOR Authorized to
Sign
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EXHIBIT A

SCOPE OF WORK and SCHEDULE
FOR
CIPP 455-705 EMID Emergency Generator Replacement

Scope of Deliverables:

1) Generator, Weatherproof Enclosure & Subbase Diesel Fuel Storage Tank. Refer to Bid Schedule in Exhibit B.
2) Automatic Transfer Switch in Outdoor Enclosure. Refer to Bid Schedule in Exhibit B.

Scope of Services:

Refer to Technical Specifications 16233A, 16233B, and Pre-Purchase Drawing Package.

Delivery Schedule: The delivery date shall correspond with the anticipated construction date in Spring 2025.

Vendor to attach estimated delivery schedule including the following:
1) Submittal Reviews for District;
2) Fabrication of Equipment (for each Bid Item);
3) Delivery to District Facilities.
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EXHIBIT B

VENDOR’S FEES and SCHEDULE OF BID PRICES

Summary

Total Contract Services:

Itemized Fees: Refer to Schedule of Bid Prices Table.

Project Payment Schedule: Refer to General Specifications for bid item descriptions.

SCHEDULE OF BID PRICES

Bid Item
No.

Bid Item Est.

Quan.

Unit Unit Price Bid Amount
Lift Station 22
1 Generator, Weatherproof
Enclosure & Subbase Diesel
Fuel Storage Tank for Lift
Station 22
EA 1
Lift Station 29
2 Generator, Weatherproof
Enclosure & Subbase Diesel
Fuel Storage Tank for Lift
Station 29
EA 1
3 Automatic Transfer Switch in
Outdoor Enclosure for Lift
Station 29
EA 1
Lift Station 59
4 Generator, Weatherproof
Enclosure & Subbase Diesel
Fuel Storage Tank for Lift
Station 59
EA 1
5 Automatic Transfer Switch in
Outdoor Enclosure for Lift
Station 59
EA 1
TOTAL BID PRICE (Total Base Bid)

SCHEDULE OF ALTERNATE BID PRICES

Bid Item
No.

Bid Item Est.

Quan.

Unit Unit Price Bid Amount
Lift Station 22
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1 Particulate Matter Filter as may
be required per Bay Area Air
Quality Management District
EA 1
TOTAL ALTERNATE BID PRICE (Total Alternate Base Bid)

Total Base Bid Price:

(Indicate Bid Price in Words)

Total Bid Price Plus Alternate Bid:

(Indicate Bid Price in Words)

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EXHIBIT C
ADDITIONAL TERMS and CONDITIONS

NOTICE TO VENDORS
SEALED BIDS will be received by the District Clerk, or designee, of the City of Foster City for the Project identified above until June 18, 2024 at 2 PM. Bids shall be sealed and addressed and noted as stated in Section C-17 of Vendor Agreement.

NOTE: Vendor Agreement in cluding Project Plans and Specifications are available electronically through BarkerBlue Digital Imaging and www.fostercity.org under “doing business” and “rfps and bids”.

Sealed Bid for Equipment of:

EMID Emergency Generator Replacement
Following the closure of the bid submittal period, bids will be publicly opened and read for performing work as follows:

Furnishing all labor, materials, equipment, and performing all work necessary and incidental to the construction of the project known as EMID Emergency Generator Replacement according to drawings and specifications as prepared by the District and according to the Contract Documents. In general, the project comprises of replacing the Emergency Generator, Weatherproof Enclosure & Subbase Diesel Fuel Storage Tank and Automatic Transfer Switch in Outdoor Enclosure at Lift Stations 29 and 59 and only the Emergency Generator, Weatherproof Enclosure & Subbase Diesel Fuel Storage Tank at Lift Station 22.

Procurement of Bidding Documents:

Bidding Documents contain the full description of the Work. Copies of the Vendor Agreement are on file and available for public inspection at the District’s Public Works Department, located at 610 Foster City Boulevard, Foster City, California 94404. Vendors can purchase copies of the Vendor Agreement and Project Plans from BarkerBlue Digital Imaging by calling (650) 696- 2100 or Toll Free at (866)347-1011; Faxing at (650) 696-2199, or emailing to [email protected] on or after May 21, 2024.

For online viewing, please go to www.fostercity.org under “doing business” and “rfps and bids” Bidding Documents need not be returned to District. Vendor is responsible for printing any and all of Bidding Documents.

Instructions
Bidding procedures are prescribed in the Instruction to Vendors section. This is a Public Works project. Bids shall be executed upon the bid forms provided, which are a part of the Vendor Agreement. Each vendor must submit with its bid security in one of the following forms:
cash, cashier's check payable to the District, a certified check payable to the District, or a bid bond in the form included with the bid documents, executed by an admitted surety insurer, made payable to the District. The guaranty shall be in the amount of ten percent (10%) of the amount bid, and shall be forfeited should the vendor, if awarded the contract, fail to enter into the same, or fail to furnish in a timely manner the bonds and/or proof of insurance required under the Vendor Agreement.

All vendors shall be licensed under the provisions of the Business and Professions Code to provide the type of equipment for the project.

Vendor are solely responsible for the cost of preparing their Bids.

Each vendor shall submit with its bid a statement setting forth its experience on the forms included in the Vendor Agreement.

Telephones will not be available to vendors for the preparation or submittal of bids. Bid forms received after the designated time will not be accepted by the District. Vendors and their authorized agents are invited to attend the bid opening.

The District reserves the right, in its sole discretion, to reject any or all bids, to re-bid, to waive inconsequential defects in bidding not involving time, price or quality of the work, to make any awards or any rejections in what it alone considers to be in the best interest of the District, and waive any irregularities in the bids.

The contract will be awarded, if at all, to the responsible vendor that submits the lowest responsive bid that follows the Vendor Selection Criteria.

INSTRUCTIONS TO VENDORS
The work to be performed is described in the Vendor Agreement titled, CIPP 455-705 EMID Emergency Generator Replacement, dated May 21, 2024 and prepared by Freyer & Laureta, Inc. for the District.

PROCEDURES FOR SUBMISSION ON BIDS
Required Pre-Bid Investigations
All Vendors shall carefully examine the Vendor Agreement and satisfy themselves as to their sufficiency; and shall not at any time after the submission of the Bid dispute or complain that there is any misunderstanding in regard to the location, extent, nat ure or amount of work to be performed. The Vendor shall notify the District of all conflicts, errors or discrepancies in the Vendor Agreement. The submitting of a Bid shall be considered an acknowledgement on the part of the Vendor of familiarity with the Scope of Work.

Vendors Questions and Answers
Vendors must direct all questions about the meaning or intent of Bidding Documents to District in writing. Interpretations or clarifications considered necessary by District in response to such questions will be issued by written Addenda mailed, faxed, or delivered to all parties recorded by the District as having received Bidding Documents. District may not answer questions received less than ten Days prior to the date for opening Bids.

Only questions answered by formal written Addenda will be binding. Oral and other interpretations or clarifications will be without legal effect, and Vendors shall not rely on oral statements.

Addenda
Addenda may be issued to all plan holders during the Bid period. Any and all Addenda issued shall become part of the Vendor Documents and shall be fully considered by all Vendors during the formation of Bids. It is the responsibility of the Vendor to contact the District to determine the existence of any and all addenda. Failure of any vendor to receive such Addenda shall not be justification for non-compliance with the terms of the instructions.

RECEIPT OF BIDS
Date and Time
Sealed hard copy Bids to follow shall be post marked to reflect the submittal date. District shall reject all Bids received after the specified time and will return such Bids to Vendors unopened.

Vendors must submit Bids in accordance with this Document.

Bid Submission
Bids for the Work shall be made on the forms contained in the Vendor Agreement as listed on the Vendor’s Checklist at the end of this Section . A complete set of documents shall be placed opaque sealed 10 inch x 13 inch envelopes, sealed, and addressed to:

Estero Municipal Improvement District
Attention: __Jen Chen____
610 Foster City Boulevard
Foster City, CA 94404-2299
BID: EMID Emergency Generator Replacement Project
CIP 455-705
Bids shall be delivered to the District at the above address before the time set for the opening of bids as provided in Section NOTICE TO VENDORS.

Vendors should mark their Bid envelopes using the name, address, identifying information and contract number.

If the Vendor wishes to hand deliver the sealed bid, the bid shall be addressed as stated above and delivered to the same address.

The District reserves the right to postpone the date and time for receiving and/or opening of bids at any time prior to the date and time established in the Notice to Vendors. Postponement notices may be faxed and will be subsequently mailed to plan holders of record in the form of an addendum.

Required Content of Bid Submittals

1. Bid Form: Vendors must submit Bids on Bid Form in accordance with the provisions of this document. Vendors must complete all Bid items including schedule of bid prices and supply all information required by Bid documents and specifications.

2. Vendor Registration and Experience Form: Vendors must submit Vendor Registration and Experience Form, completed in accordance with the provisions of the Form. Vendor Experience must be in accordance with the Technical Specifications 16233A-1.07 and 16233B-1.07 in Exhibit A of the Vendor Agreement.

3. Non-Collusion Affidavit: Vendors must submit Non-Collusion Affidavit completed in accordance with the provisions of the document.

4. Vendor Certifications: Vendors must submit Vendor Certification completed in accordance with the provisions of the document.

Estimated Delivery Schedule: Estimated Delivery Schedule shall follow guidelines as stated in Exhibit A of Vendor Agreement.

BID OPENING
Immediately after the expiration of the time for submission of Bids, all Bids will be publicly opened, read, declared, and referred to the District Council for action.

Bids to receive consideration shall be made in accordance with the following instructions:
a. Bids shall be made upon the separate form provided therefor, a copy of which is included with the Vendor Agreement . The signature of all persons executing the Bid shall be in longhand writing . The completed form shall be submitted without interlineations, alterations, or erasures.
b. Except as otherwise indicated, all items shall be included in the Envelope. c. Bids shall contain only the quotations for which the form is prepared. Alternative Bids will not be considered unless called for. No oral, email, facsimile, telegraphic, or telephonic bids, or modifications, will be considered.
d. Vendors shall submit in Envelope Form VENDOR’S EXPERIENCE in accordance with the Technical Specifications 16233A -1.07 and 16233B -1.07 provisions herein and therein.

VENDOR SELECTION CRITERIA
District will determine Apparent Low Vendor as follows:

A. District will open each Vendors’ Envelope at the time and place indicated, initially evaluate them for responsiveness, and determine an Apparent Low Vendor as specified herein.

B. For the Apparent Low Vendor only, District will open Envelope and evaluate the Apparent Low Vendor for responsiveness to the requirements CERTIFICATION OF VENDOR’S EXPERIENCE AND QUALIFICATIONS provided as an Attachment for responsibility.

C. Apparent Low Vendor will be determined solely on the total amount of all Bid items based on terms contained in Notice Inviting Bids and Bid Form. All Vendors are required to submit Bids on all Bid items (including any alternates).

D. If Apparent Low Vendor is determined to be non-responsive or non-responsible, then District may proceed to the next Apparent Low Vendor’s Bid pursuant to any procedures determined in its reasonable discretion, and proceed for all purposes as if this Apparent Low Vendor were the original Apparent Low Vendor.

Evaluation of Bids
The District will evaluate the Bids as follows:

A. Bids must be full, complete, clearly written and using the required forms. Vendors shall make any change in the Bid by crossing out the original entry, entering and initialing the new entry. Vendor’s failure to submit all required documents strictly as required entitles District to reject the Bid as non-responsive. All Vendors must submit Bids containing each of the fully executed Sections supplied in the Vendor Agreement.

B. In evaluating Bids, District will consider Vendors’ qualifications, whether or not the Bids comply with the prescribed requirements, unit prices, and other data, as may be requested in Bid Form or prior to the Notice of Award.

C. District will consider the estimated delivery schedule, which will include milestones such as reviewed submittals to District, Fabrication of Equipment (for each Bid Item), and delivery to District facilities, as part of the Bid evaluation process. Refer to Exhibit A:

Delivery Schedule in Vendor Agreement.

D. District may conduct reasonable investigations and reference checks of Vendor and other persons and organizations as District deems necessary to assist in the evaluation of any Bid and to establish Vendor’s responsibility, qualifications, financial ability, and capability to perform the Work in accordance with the Contract Documents to District’s satisfaction within the prescribed time. Submission of a Bid constitutes Vendor’s consent to the foregoing.

E. District shall have the right to consider information provided by sources other than Vendor. District shall also have the right to communicate directly with Vendor’s surety regarding Vendor’s bonds.

F. Discrepancies between the multiplication of units of Work and unit prices will be resolved in favor of the unit prices. Discrepancies between the indicated sum of any column of figures and the correct sum thereof will be resolved in favor of the correct sum. Discrepancies between written words and figures will be resolved in favor of the words.

G. Bids shall be deemed to include the written responses of the Vendor to any questions or requests for information of District made as part of Bid evaluation process after submission of Bid.

Reservation of Rights
District specifically reserves the right, in its sole discretion, to:

A. Reject any or all nonconforming, non-responsive, unbalanced, or conditional Bids; B. Reject the Bid of any Vendor as non-responsive as a result of any error or omission in the Bid; and
C. Reject the Bid of any Vendor if District believes that it would not be in the best interest of Project to make an award to that Vendor, whether because the Bid is not responsive, the Vendor is unqualified or of doubtful financial ability, or fails to meet any other pertinent standard or criteria established by District.

District may retain Bid securities of other than the Apparent Low Vendor for a period of 90 Days after award or full execution of the Contract, whichever first occurs.

For purposes of this Section, an “unbalanced Bid” is one having nominal process for some Bid items and enhanced prices for other Bid items.

District may waive any informalities or minor irregularities in the Bids. District also reserves the right, in its discretion, to reject any or all Bids and to re-Bid the Project.

Submission of Written Bid Protest
Any bid protest relating to the award of the contract for the Project must be submitted in writing to the District, Attn: Jen Chen, 610 Foster City Boulevard Foster City, CA 94404-2299. The protest must be received before close of business of the fifth business day following the posting Notice of Intent to Award at the District, Attn: Jen Chen, 610 Foster City Boulevard Foster City, CA 94404-2299. District will use reasonable efforts to deliver by facsimile or email a copy of Notice of Intent to Award to all Vendors who submitted Bids no later than the Business Day after issuance, although any delay or failure to do so will not extend the Bid protest deadline described herein.

The initial protest document shall contain a complete statement of the basis for the protest.

The protest shall refer to the specific portion(s) of the Vendor Agreement, which forms the basis for the protest. The protest shall include the name, address and telephone number of the person representing the protesting party.

The party filing the protest shall concurrently transmit a copy of the initial protest document and any attached documentation to all other parties who have a direct financial interest that may be adversely affected by the outcome of the protest. Such parties shall include all other vendors or proposers who appear to have a reasonable prospect of receiving an award depending upon the outcome of the protest. The documents shall be transmitted by e-mail, fax, or overnight mail.

Only Vendors who the District otherwise determines are responsive and responsible are eligible to protest a Bid; protests from any other Vendors will not be considered. In order to determine whether a protesting Vendor is responsive and responsible, District may evaluate all information contained in any protesting Vendor’s Bid, and conduct the same investigation and evaluation as District is entitled to take regarding an Apparent Low Vendor.

Exclusive Remedy
The procedure and time limits set forth in this paragraph are mandatory and are the Vendor’s sole and exclusive remedy in the event of bid protest. Failure to comply with these procedures shall constitute a waiver of any right to further pursue the bid protest, including filing a Government Code claim or legal proceedings. A Vendor may not rely on a protest submitted by another Vendor, but must timely pursue its own protest.

AWARD AND EXECUTION OF CONTRACT
Notice of Award and Submittal of Executed Contract Documents If Contract is to be awarded, it will be awarded to the lowest responsible responsive Vendor.

District will issue Notice of Award. Such Award, if made, will be made within sixty (60) days after the opening of the Bid Proposals, unless there is a bid protest, then (90) days after the day of bid opening.

Successful Vendor must execute and submit to District the “Required Contract Documents and Proof of Insurance” set forth below, by 5:00 p.m. of the 20th Day following the Notice of Award.

Required Contract Documents and Proof of Insurance

1. Agreement, fully executed by successful Vendor. Submit two originals, each bearing an original signature on the signature page and initials on each page.

2. Guaranty, fully executed by successful Vendor. Submit one original, bearing an original signature on the signature page and initials on each page.

3. Insurance certificates and endorsements required by Supplementary Conditions— Insurance: Submit one original set.

4. Any other items identified by District in Notice of Award.

Failure to Execute and Deliver Documents
Upon such failure to timely deliver all required Contract Documents as set forth herein, District may determine the next Apparent Low Vendor and proceed accordingly. Such Award, if made, will be made within sixty (60) days after the opening of the Bid Proposals.

GENERAL CONDITIONS AND REQUIREMENTS
Modification of Commencement of Work
District expressly reserves the right to modify the date for the Commencement of Work under the Contract and to independently perform and complete work related to Project. District accepts no responsibility to Vendor for any delays attributed to its need to complete independent work.

Conformed Project Manual
Following Award of Contract, District may prepare a conformed Project Manual reflecting Addenda issued during bidding, which will, failing objection, constitute the approved Project Manual.

Wage Rates
Copies of the general prevailing rates of per diem wages for each craft, classification, or type of worker needed to execute the Contract, as determined by Director of the State of California Department of Industrial Relations, are on file at the District’s Public Works Department and may be obtained from the California Department of Industrial Relations website [http://www.dir.ca.gov/OPRL/DPreWageDetermination.htm] and are deemed included in the Bidding Documents. Upon request, Owner will make available copies to any interested party.

Also, Vendor shall post the applicable prevailing wage rates at the Site.

Withdrawal of Bid
Vendors may withdraw their Bids at any time prior to the Bid opening time fixed in this Document, only by written request for the withdrawal of Bid filed with District at the City Clerk’s Office, located at 610 Foster City Boulevard, Foster City, California 94404. Vendor or its duly authorized representative shall execute request to withdraw Bid.

Public Records Act Requests
Per the Public Records Act, District will make available to the public Vendor’s SOQ (if vendor’s Envelope is opened), all correspondence and written questions submitted during the Bid period, all Bid submissions opened in accordance with the procedures set forth herein, and all subsequent Bid evaluation information. All submissions not opened will remain sealed and shall be returned to the submitter. Except as otherwise required by law, the District will not disclose trade secrets or proprietary financial information submitted by Vendors that has been designated as confidential by Vendor (including but not limited to the SOQ). Any such trade secrets or proprietary financial information that Vendor believes should be exempted from disclosure shall be specifically identified and marked as such. Blanket-type identification by designating whole pages or sections shall not be permitted and shall be invalid. The specific confidential information must be clearly identified as such.

Upon a request for records regarding this Bid, District will notify the Vendor involved, within ten Days from receipt of the request, when the records will be made available for inspection. If the Vendor timely identifies any “proprietary, trade secret, or confidential commercial or financial” information that Vendor determines is not subject to public disclosure, and requests that District refuse to comply with the records request, Vendor shall take all appropriate legal action and defend Vendor’s refusal to produce the information in all forums; otherwise District will make such information available to the extent require by applicable law, without restriction.

Information disclosed in the SOQ and the attendant submissions are the property of District unless Vendor makes specific reference to data that is considered proprietary. Subject to the requirements in the Public Records Act, reasonable efforts will be made to prevent the disclosure of information except on a need-to-know basis during the evaluation process.

Substitutions
Vendors must base their Bids on products and systems specified in Contract Documents or listed by name in Addenda. District will consider substitution requests only for “or equal items.” Vendor must clearly state any exceptions to the specified equipment requirements. The requirements are taken using the Kohler equipment but by no means the standard. Other brands can be used if it meets minimum requirements in the specifications and a statement of changes is submitted for evaluation.

VENDOR’S CHECKLIST
The following constitutes the Vendor’s Checklist of completed Sections to be submitted with all Bids. All items are to be included in Envelope unless otherwise indicated:

Item Checked

1. Bid Form _______

2. Schedule of Bid Prices _______

3. Vendor Registration and Experience Form _______
in accordance with the Technical Specifications
16233A-1.07 and 16233B-1.07

4. Non-Collusion Affidavit _______

5. Vendor Certifications _______

6. Estimated Delivery Schedule _______

BID FORM

TO THE ESTERO MUNICIPAL IMPROVEMENT DISTRICT
THIS BID IS SUBMITTED BY:
(Firm/Company Name)
Re: EMID Emergency Generator Replacement Project
Contract Number: CIP 455-705

1. The undersigned Vendor proposes and agrees, if this Bid is accepted, to enter into an agreement with the ESTERO MUNICIPAL IMPROVEMENT DISTRICT in the form included in the Contract Documents, Agreement, to perform and furnish all Work as specified or indicated in the Contract Documents for the Contract Sum and within the Contract Time indicated in this Bid and in accordance with all other terms and conditions of the Contract Documents.

2. Vendor accepts all of the terms and conditions of the Contract Documents, Exhibit C or Vendor Agreement.This Bid will remain subject to acceptance for 60 Days after the day of Bid opening, unless there is a bid protest, then 90 days after the day of bid opening.

3. In submitting this Bid, Vendor represents that Vendor has examined all of the Contract Documents, performed all necessary Pre-Bid investigations, and received the following Addenda:
(a) Addendum Number ADDENDUM DATE Signature of Vendor

4. Based on the foregoing, Vendor proposes and agrees to fully perform the Work within the time stated and in strict accordance with the Contract Documents for the following sums of money listed in Schedule of Bid Prices in Exhibit B on Vendor Agreement.

5. The undersigned acknowledges that the Apparent Low Vendor will be determined as provided in Notice to Vendors and Instruction to Vendors.

6. If written notice of the acceptance of this Bid, hereinafter referred to as Notice of Award, is mailed or delivered to the undersigned Vendor within the time described in Paragraph 2 of this Document or at any other time thereafter before it is withdrawn, the undersigned Vendor will execute and deliver the documents required by Instructions to Vendors within the times specified therein.

7. Notice of Award or request for additional information may be addressed to the undersigned Vendor at the address set forth below.

8. The undersigned Vendor agrees to commence Work under the Contract Documents on the date established in the Vendor Agreement and to complete all Work within the time specified in Agreement.

9. The name of all persons interested in the foregoing Bid as principals are:

IMPORTANT NOTICE: If Vendor or other interested person is a corporation, give the legal name of corporation, state where incorporated, and names of president and secretary thereof; if a partnership, give name of the firm and names of all individual co-partners composing the firm; if Vendor or other interested person is an individual, give first and last names in full.

NAME OF VENDOR:
with license number: Expiration:
(Place of Incorporation, if Applicable) (Principal)
(Principal)
(Principal)
I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
(Signature of Vendor)
Business Address:

Vendor’s Representative(s):
(Name/Title)
(Name/Title)
(Name/Title)
Officers Authorized to Sign Contracts
(Name/Title)
(Name/Title)
(Name/Title)
Telephone Number(s):
(Area Code) (Number)
(Area Code) (Number)
Fax Number(s):
(Area Code) (Number)
(Area Code) (Number)
Date of Bid:

END OF DOCUMENT

VENDOR REGISTRATION AND EXPERIENCE FORM

INDEPENDENT VENDOR REGISTRATION
License #
Date: Fed I.D. #
Full Corporate Name of Company:

Street Address:

Mailing Address:

Phone: Fax:

Name of Principal Contact:

Type of Business: Sole Proprietor Partnership
Non-Profit 501(c)(3) Corporation
other (please explain: )

VENDOR EXPEREINCE
Experience information listed shall be in accordance with the Technical Specifications 16233A -1.07 and 16233B-1.07 in Exhibit A of the Vendor Agreement.

Years of Experience: _____
Type of Generators:

Project Examples:

Certifications:

Additional Information:

INSURANCE
Workers’ Compensation:

Carrier:

Address:

Phone and Fax:

Policy Number:

General Liability:

Carrier:

Address:

Phone and Fax:

Policy Number: