Agreement for Services Page 1
Rev. 09.2021
AGREEMENT FOR SERVICES
THIS AGREEMENT is made and entered into this day of , 2023, by and between the City of Livermore (“City”), a municipal corporation, and SNF Polydyne, Inc. (“Contractor”), a Delaware corporation.
RECITALS
City requires services to supply and deliver dewatering polymer to the Livermore Water Reclamation Plant.
Contractor warrants it possesses the distinct skills, qualifications, experience, and resources necessary to timely perform the services described in this Agreement.
Contractor acknowledges City has relied upon these warranties to retain Contractor.
AGREEMENT
NOW, THEREFORE, City and Contractor hereby agree that the aforementioned recitals are true and correct and further agree as follows:
1. Retention as Contractor. City hereby retains Contractor, and Contractor hereby accepts such engagement, to perform the services described in Section 3 below subject to the terms and conditions in this Agreement.
2. Relationship of Parties – Independent Contractors. The relationship of the parties shall be that of independent contractors. Contractor and its employees are not City officers or employees. Contractor is responsible for the supervision and management of its employees, including any workers compensation insurance, withholding taxes, unemployment insurance, and any other employer obligations associated with the delivery of the services contemplated by this Agreement.
3. Description of Services. Contractor shall provide services to supply and deliver dewatering polymer to the Livermore Water Reclamation Plant as more particularly set forth in Exhibit "A" (collectively “the Services”).
4. Contractor’ s Responsibilities. Contractor shall:
a) Diligently perform the Services in a manner commensurate with industry, professional, and community standards;
b) Provide the resources necessary to complete the Services in a timely manner;
c) Obtain a business license from the City of Livermore, and keep it in effect for the term of this Agreement;
d) Obtain and keep in effect all necessary licenses, permits, qualifications, insurance, and approvals legally and professionally required for Contractor to practice its profession and to provide the Services;
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e) Comply with all laws in effect that are related to Contractor and the Services; f) Coordinate the Services with Jimme Truesdell, Water Resources Operations Manager (“Project Manager”), or such other person designated as the Project Manager by City;
g) Be available to the Project Manager, and other parties referred to Contractor by the Project Manager, to answer questions or inquiries related to the Services; h) Only invoice City for the Services rendered. Contractor’s invoice shall be in writing and describe the Services performed for the payment requested. Contractor shall not submit an invoice to City more frequently than once a calendar month; i) Keep and maintain invoices and records related to the Services in an organized manner. At a minimum, the records must be kept for at least 3 years from the date of final payment to Contractor and must include time sheets, work progress reports, and other documentation to adequately explain all the Services invoiced for payment.
Contractor shall make the invoices and records immediately available to City upon delivery of a written request to examine, audit, or copy them at City’s place of business during normal business hours. Contractor shall give City 30 calendar-days’ written notice prior to destroying the invoices and records and allow City an opportunity to take possession. If City wants them, Contractor and City shall coordinate their delivery to City in the most efficient manner possible;
j) Prepare and submit a written report to the Project Manager, within 3 business-days of the Project Manager’s written request, that identifies the Services completed and in progress, the charges incurred to date, and the anticipated cost to complete the remaining Services;
k) Contractor shall correct, at its own expense, all errors in the Services.
Should Contractor fail to make such correction in a timely manner, City may make the correction and charge the cost thereof to Contractor;
l) If applicable, Contractor shall ensure that all work for compensation is taken in compliance with the requirements of the California Labor Code including but not limited to hours of labor, nondiscrimination, payroll records, apprentices, worker’s compensation and prevailing wages. If applicable, Contractor shall comply with all prevailing wage laws, such as sections 1773, 1773.8, 1775, 1776, 1777.5, 1777.6, and 1813 of the California Labor Code and any other applicable wage and hour law. If any violation of prevailing wage law associated with this Agreement is deemed to have occurred by any court or administrative authority, Contractor shall forfeit to the City, as a penalty, the sum of fifty dollars ($50.00) for each calendar day, or portion thereof, for each laborer, worker, or mechanic employed, paid less than the applicable prevailing rates for any work done to accomplish the purposes of this Agreement; and,
m) Contractor’s services provided pursuant to this Agreement shall comply with the Americans with Disabilities Act (ADA) of 1990, and all amendments thereto, as well as applicable regulations and guidelines issued pursuant to the ADA.
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5. Compensation and Payment.
a) The total compensation payable by City to Contractor for the Services SHALL NOT EXCEED the sum of $ 1,111,000 (" not-to-exceed amount"). City shall compensate Contractor for the Services rendered at the hourly rates or task amounts set forth in Exhibit “A” up to the not-to-exceed amount. Except as provided in the body of this Agreement, the hourly rates or task amounts are intended to be Contractor ’s only compensation for the Services and is inclusive of all costs of labor, licensing, permitting, travel expenses, overhead and administrative costs, and any-and-all other costs, expenses, and charges incurred by Contractor, its agents, and employees to provide the Services.
b) City shall pay Contractor no later than 30 days after City receives a written invoice from Contractor and verifies the Services were performed for the payment requested.
6. Term. The term of this Agreement commences on October 1, 2023, and terminates upon the completion of the Services or September 30, 2026, whichever occurs first.
7. Termination by City. City may terminate any portion or all of the Services by giving Contractor at least 30 calendar-days written notice. Upon receipt of a termination notice, Contractor shall immediately stop all work in progress on the Services except where necessary to preserve the benefit of the work, and assemble the work on the Services for delivery to City on the termination date. All compensation for Services performed prior to the termination date shall be payable to Contractor in accordance with Section 5.
8. Ownership of Documents. All drawings, designs, data, photographs, reports and other items prepared or obtained by Contractor in the performance of the Services are City’s property and Contractor shall deliver them to City upon demand.
9. Copyright and Right of Use. All items created by Contractor for City under this Agreement are works made for hire, and Contractor shall give City the copyright and all intellectual property rights to all items developed, prepared, and delivered as part of the Services. Contractor agrees that all aspects of the Services and items created thereby will be original works of creation and will not use, in whole or in part, any work created by any other party, except when expressly disclosed by Contractor to City and Contractor obtains a license to such items for the benefit of City. All licenses must be perpetual, world-wide, non-exclusive, and royalty free sufficient in scope to permit City’s full use and enjoyment of its ownership rights in the items created by the Services.
10. Confidentiality. Contractor shall not disclose any confidential or proprietary information received from City to anyone except Contractor’s employees who require access to the information to perform the Services. This obligation shall survive termination and remain in full force and effect until the information, and any copies thereof, are destroyed or returned to City.
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11. Defense, Indemnity, and Hold Harmless. To the fullest extent permitted by law, Consultant shall hold harmless, indemnify, and defend with counsel selected by the City or otherwise acceptable to the City, the City and its elected and appointed officials, officers, directors, employees, agents and designated volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including without limitation, attorney’s fees and costs and fees of litigation) (collectively, “Liability”) of every nature arising out of or in connection with Consultant’s performance of the services contemplated by this Agreement, or in connection with Consultant’s failure to comply with any of its obligations contained in this Agreement, except for such Liability caused by the sole active negligence or willful misconduct of City. Consultant’s obligations to hold harmless, indemnify, and defend shall not be excused because of Consultant’s inability to evaluate Liability or because Consultant evaluates Liability and determines that Consultant is not liable to the claimant. These obligations are independent of, and shall not in any way be limited by, the minimum insurance obligations contained in this Agreement. These obligations shall survive the completion or termination of this Agreement. Consultant must respond within 30 days to the tender of any claim for defense and indemnity by the City.
a) Modification for Construction Contracts. To the extent this Agreement is a construction contract” covered by California Civil Code section 2782, then Consultant’s duty to indemnify shall not apply in a manner prohibited by California Civil Code section 2782.
b) Modification for Design Professional Services. To the extent this Agreement is for “design professional services” defined in California Civil Code section 2782.8, then Consultant’s duties to defend and indemnify shall only apply to the extent provided for in California Civil Code section 2782.8(a), unless section 2782.8(a) is not applicable for one of the reasons set forth in 2782.8(e).
12. Insurance. Contractor shall procure and maintain insurance during the term of this Agreement in the amounts and under the terms set forth in Exhibit “B” against claims that may arise from or in connection with this Agreement and performance of the Services.
Upon reasonable written notice, Contractor shall comply with any changes in the amounts and terms of insurance as may be required from time-to-time by City’s Risk Manager.
13. Acceptance of Final Payment. Contractor’s acceptance of final payment will release City from any and all claims and liabilities for compensation under this Agreement.
14. Acceptance of Work. City’s acceptance of, or payment to Contractor for, the Services does not release Contractor from its responsibility for the accuracy, completeness, or competency of the Services, nor do the actions constitute an assumption of Contractor’s responsibility or liability by City for any defect or error in the Services.
15. Conflict of Interest. Contractor represents that no City employee or official has a financial interest in Contractor. Contractor shall not offer, encourage, or accept any financial interest in any part of Contractor's business by or from a City employee or official DocuSign Envelope ID: 5AD17302- 24DF- 4BD3- AD65- D335A51FAAE3 DocuSign Envelope ID: 1FF4849F-D0C4-43EB-83AE-22DF37EEE58E Agreement for Services Page 5
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during the term of this Agreement or as a result of being awarded this Agreement. If any of the Services are paid by reimbursement from an agreement between City and a private party, Contractor represents that it has not performed any work for that private party during the 12-month period prior to the execution of this Agreement, and that it shall not negotiate, offer or accept any contract for services from that party during the term of this Agreement.
16. Economic Disclosure. Contractor shall comply with City’s local conflict of interest code and the Political Reform Act, and prepare and file an economic disclosure statement if the Services involve making, or participation in making, decisions which may have a material effect on the Contractors’ financial interest. While it is Contractor’s sole responsibility to evaluate its conflicts of interest, the Contractor nevertheless agrees to prepare and file an economic disclosure statement if requested by City.
17. Non-Exclusive Agreement. This is a non-exclusive agreement. City reserves the right to provide, and to retain other Contractors to provide, services that are the same or similar to the Services described in this Agreement.
18. No Assignment. Contractor shall not assign or subcontract any of the Services without City’s prior written consent. For the purposes of this section, a change of fifty- percent or more in the ownership or control of Contractor constitutes an assignment.
19. Remedies. All remedies permitted or available under this Agreement, or at law or in equity, are cumulative and alternative, and the invocation of a right or remedy will not be construed to waive or elect a remedy with respect to any other available right or remedy. As a condition precedent to commencing legal action involving a claim or dispute against City arising from this Agreement, the Contractor must present a written claim to City in accordance with Chapter 3.42 of the Livermore Municipal Code.
20. Construction of Language. The terms and conditions in this Agreement have been arrived at through negotiation and each party had a full and fair opportunity to review and revise this Agreement with legal counsel. Any ambiguity in this Agreement will not be resolved against either party as the drafting party. In the event of an inconsistency or conflict between the language in the body of the Agreement and an attachment hereto, the language in the body of the Agreement controls.
21. Entire Agreement; Modification. This Agreement supersedes all other agreements, whether oral or written, between the parties with respect to the Services.
Any modification to this Agreement must be in writing and signed by both parties. In the event the original of this Agreement is lost or destroyed, an archival copy maintained by City can be used in place of the original for all purposes with the same effect as if it was the original.
22. Notice. Notices under this Agreement must be delivered to the addresses below by deposit in the United States mail or by overnight delivery service, with postage prepaid and delivery confirmation:
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TO CITY: Attention: Water Resources Operations Manager
City of Livermore
101 W. Jack London Blvd.
Livermore, California 94551
TO CONTRACTOR: Attention: Boyd Stanley
Polydyne Inc.
One Chemical Plant Road
Riceboro, GA 31323
23. Waiver. Failure to insist upon the strict performance of any term or conditions in this Agreement, no matter how long the failure continues, is not a waiver of the term or condition and does not bar the right to subsequently demand strict performance. To be effective, a waiver must be in writing and signed by the non-breaching party.
24. Severability. If a court of competent jurisdiction determines a provision in this Agreement is invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force and effect without being impaired in any way.
25. Survival. The terms, conditions, and obligations in Sections 8, 9, 10, and 11 shall survive the completion or termination of this Agreement.
26. Electronic Signatures. By signing this document, you are agreeing that you have reviewed this disclosure information and consent to transact business using electronic communications, to receive notices and disclosures electronically, and to utilize electronic signatures in lieu of using paper documents. You are not required to receive notices and disclosures or sign documents electronically. If you prefer not to do so, you may request to receive paper copies and withdraw your consent at any time.
27. Counterparts. This Agreement may be executed and delivered in one or more counterparts, each of which will be deemed to be an original copy of this Agreement, and all of which, when taken together, will be deemed to constitute one and the same agreement. The facsimile, email, or other electronically delivered signatures of the Parties shall be deemed to constitute original signatures, and facsimile or electronic copies hereof shall be deemed to constitute duplicate originals and shall be valid and effective for all purposes.
Signatures and Attachment List on the Next Page
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In concurrence and witness whereof, and in recognition of the mutual consideration provided therefore, the parties have executed this Agreement, effective on the date first written above.
Dated:
Dated:
CONTRACTOR:
By: Boyd Stanley
Title: Vice President
CITY OF LIVERMORE:
Marianna Marysheva
City Manager
APPROVED AS TO FORM:
Assistant/City Attorney
APPROVED AS TO INSURANCE:
Risk Manager/Analyst
Attachments:
Exhibit A – Scope of Work
Exhibit B – Insurance Requirements
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EXHIBITA
SCOPEOFWORK
SCOPE
CONTRACTORshallprovideall necessarylabor. Equipment, vehicles, supplies, andmaterialsto providethe followingservice:
1. SupplyanddeliverCLARIFLOCWE-1196or CLARIFLOCWE-2614dewateringpolymerto the LivermoreWaterReclamationPlant (WRP) locatedat 101JackLondonBoulevardin Livermore, California.
TERMSANDCONDITIONS
1. CONTRACTORshalldeliverpolymerto the WRPwithin 14daysof order.
2. CONTRACTORshallprovideemailconfirmationto CITYwheneveranorderhasbeen received.
3. CONTRACTORor representativemustnotify CITYstaff uponreachingthe WRPsothat the CITYstaff mayverifythe productbeingdelivered.
4. CONTRACTORor representativeshallconnectthe deliverytruck to the WRPtankand safelydischargepolymerinto the WRPtank.
5. CONTRACTORor representativeshallcleananyspillageof polymergeneratedduringthe filling process.
6. CONTRACTORor representativeshallprovidea weighttagto CITYfor eachdelivery.
COMPENSATION
1. CityshallcompensateCONTRACTORat the rate of $1.72per wet pound.
2. Eachyearon July1, beginningin 2024, unit priceswill be adjustedby the percentage listedin the ConsumerPriceIndexfor All UrbanConsumersfor the SanFrancisco- Oakland-Haywardregion (CPI-U) usingthe 12-month changein April. Thisadjustment will bedocumentedeachyearthrougha signedletter from the Cityto the Contractor.
3. In no eventshalla priceincreaseresultin morethana 10% increasefrom the prior annualnot-to-exceedpriceand/or the prior annualunit price.
4. In the eventthat CONTRACTORofferspolymerto anothergovernmentalentity within a 100mile radiusof CITYasa lower pricethan setforth in this Agreement, CONTRACTOR shallnotify the CITYwithin 30daysof the lower priceandprovidepolymerto the CITYat the samelower price.
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EXHIBIT B
INSURANCE REQUIREMENTS
Minimum Scope and Limits of Insurance
Consultant/Contractor shall maintain limits no less than:
1. Commercial General Liability, including operations, products, and completed operations, as applicable:
5,000,000 per occurrence/$10,000,000 aggregate for bodily injury, personal injury, and property damage. If Commercial General Liability or other form of insurance with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability:
2,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation and Employer's Liability:
Statutory limits as required by the State of California including $2,000,000 Employers’ Liability per accident, per employee for bodily injury or disease. A waiver of subrogation is required for Workers’ Compensation insurance. If Consultant/Contractor is a sole proprietor, then they must sign “Contractor Release of Liability”.
4. Professional Liability/Errors and Omissions:
1,000,000 per occurrence.
5. Pollution Liability:
2,000,000 per occurrence.
Deductibles and Self-Insured Retention
All self-insured retentions (SIR) must be disclosed to Risk Management for approval and shall not reduce the limits of liability. Policies containing any self-insured retention SIR) provision shall provide, or be endorsed to provide, that the SIR may be satisfied by either the named insured or the City of Livermore. The City of Livermore reserves the right to obtain a full certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of no less than A:
VII and accepted to do business in the State of California, unless otherwise acceptable to the City of Livermore.
Other Insurance Provisions
The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
1. The City of Livermore, its officers, officials, employees, and designated volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of the Consultant/Contractor; or automobiles owned, leased, hired or borrowed by the Consultant/Contractor. The coverage shall contain no special Revised 9/21/2015 B8 – 5M POL
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2. The limits of insurance required in this agreement may be satisfied by a combination of primary and umbrella or excess insurance. The additional insured coverage under the Consultant’s/Contractor’s policy shall be primary and non-contributory and will not seek contribution from the City’s insurance or self-insurance and shall be at least as broad as ISO Form CG 20 10 04 13. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of the City of Livermore before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
3. Any failure to comply with reporting or other provisions of the policy, including breaches of warranties, shall not affect coverage provided to the City of Livermore, its officers, officials, employees, or volunteers.
4. The Consultant’s/Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
5. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party before expiration of the policy unless notice is delivered in accordance with policy provisions.
6. It shall be a requirement under this agreement that any available insurance proceeds broader than, or in excess of, the specified minimum insurance coverage requirements and/or limits shall be available to the additional insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named Insured; whichever is greater.
7. Certificate Holder section of the insurance certificate should read: City of Livermore, 1052 S. Livermore Avenue, Livermore, CA 94550 Verification of Coverage
Consultant/Contractor shall furnish certificates of insurance and endorsement(s) effecting coverage to the City of Livermore for approval. The endorsements shall be on forms acceptable to the City of Livermore. All certificates and endorsements are to be received and approved by the City of Livermore before work commences. The City of Livermore reserves the right to require complete and certified copies of all insurance policies required by this Agreement.
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