24-1104 Sample Product Requirements Contract.pdf — Fresno City Council, August 29, 2024

FIN 4.0
RC PRODUCTS 1.17 Rev. 05-2021

SAMPLE PRODUCT REQUIREMENTS CONTRACT
THIS CONTRACT is made and entered into by and between the CITY OF FRESNO, a California municipal corporation, hereinafter called the "City," and [Contractor Name], [Legal Identity], hereinafter called the "Contractor," as follows:

1. CONTRACT DOCUMENTS. The "Notice Inviti ng Bids," "Instructions to Bidders," "Bid Proposal," and the "Specifications" including "General Conditions", "Special Conditions" and "Technical Specifications" for the following: [Title] (Bid File No. [Number]) [Alternates (if any)] copies of which are annexed hereto, together with all the drawings, plans, and documents specifically referred to in said annexed documents, and are hereby incorporated into and made a part of this Contract, and shall be known as the Contract Documents.

2. PRICE. For the estimated monetary cons ideration of [WRITTEN $ AMOUNT] DOLLARS AND [WRITTEN CENTS AMOUNT] CENTS ($[DOLLAR AMOUNT]), as set forth in the Bid Proposal, Contractor promises and agrees to furnish or cause to be furnished, in a new and working condition, and to the satisfaction of City, and in strict accordance with the Specifications, all of the items as set forth in the Contract Documents.

3. PAYMENT. City accepts Contractor's Bid Proposal as stated and agrees to pay the consideration stated, at the times, in the amounts, and under the conditions specified in the Contract Documents. Contractor agrees to accept electronic payment from the City.

4. INDEMNIFICATION:

To the furthest extent allowed by law, including California Civil Code section 2782, CONTRACTOR shall indemnify, defend and hold harmless CITY and each of its officers, officials, employees, agents, and volunteers from any and all claims, demands, actions in law or equity, loss, liability, fines, penalties, forfeitures, interest, costs including legal fees, and damages (whether in contract, tort, or strict liability, including but not limited to personal injury, death at any time, property damage, or loss of any type) arising or alleged to have arisen directly or indirectly out of (1) any voluntary or involuntary act or omission, (2) error, omission or negligence, or (3) the performance or non-performance of this Contract . CONTRACTOR'S obligations as set forth in this section shall apply regardless of whether CITY or any of its officers, officials, employees, agents, or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or the willful misconduct, of CITY or any of its officers, officials, employees, agents or volunteers.

To the fullest extent allowed by law, and in additi on to the express duty to indemnify, CONTRACTOR, whenever there is any causal connection be tween the CONTRACTOR’s performance or non- performance of the work or services required under this Contract and any claim or loss, injury or damage of any type, CONTRACTOR expressly agrees to undertake a duty to defend CITY and any of its officers, officials, employees, agents, or volunteers, as a separate duty, independent of and broader that the duty to indemnify. The duty to defend as herein agreed to by CONTRACTOR expressly includes all costs of litigation, attorneys fees, settlement costs and expenses in connection with claims or litigation, whether or not the claims are valid, false or groundless, as long as the claims could be in any manner be causally connected to CONTRACTOR as reasonably determined by CITY.

Upon the tender by CITY to CONTRACTOR, CONTRACTOR shall be bound and obligated to assume the defense of CITY and any of its officers, officials, employees, agents, or volunteers, including the a duty to settle and otherwise pursue settlement negotiations, and shall pay, liquidate, discharge and satisfy any and all settlements, judgments, awards, or expenses resulting from or arising out of the claims without reimbursement from CITY or any of its officers, officials, employees, agents, or volunteers.

fails, refuses or neglects to assume the defense thereof, CITY and its officers, officials, employees, agents, or volunteers may agree to compromise and settle or defend any such claim or action and CONTRACTOR shall be bound and obligated to reimburse CITY and its officers, officials, employees, agents, or volunteers for the amounts expended by each in defending or settling such claim, or in the amount required to pay any judgment rendered therein.

The defense and indemnity obligations set forth above shall be direct obligations and shall be separate from and shall not be limited in any manner by any insurance procured in accordance with the insurance requirements set forth in this Contract. In addition, such obligations remain in force regardless of whether CITY provided approval for, or did not review or object to, any insurance CONTRACTOR may have procured in a accordance with the insurance requirements set forth in this Contract. The defense and indemnity obligations shall arise at such time that any claim is made, or loss, injury or damage of any type has been incurred by CITY, and the entry of judgment, arbitration, or litigation of any claim shall not be a condition precedent to these obligations.

The defense and indemnity obligations set forth in this section shall survive termination or expiration of this Contract.

If CONTRACTOR should subcontract all or any portion of the work to be performed under this Contract, CONTRACTOR shall require each subcontractor to Indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms as set forth above. / / /
/ / /
FIN 4.0
RC PRODUCTS 1.19 Rev. 05-2021

IN WITNESS WHEREOF, the parties have executed this Contract on the day and year here below written, of which the date of execution by City shall be subsequent to that of Contractor’s, and this Contract shall be binding and effective upon execution by both parties. [Contractor Name],
[Legal Identity]

By:

Name:
(Type or print written signature.)

T i t l e :

D a t e d :

By:

Name:
(Type or print written signature.)

T i t l e :

D a t e d :

CITY OF FRESNO,
a California municipal corporation

By:
[Name], Purchasing Manager
General Services Department

Dated:

APPROVED AS TO FORM:

ANDREW JANZ
City Attorney

By:

Date
Senior/Deputy City Attorney

ATTEST:

TODD STERMER, CMC
City Clerk

By:

Deputy

City address:

City of Fresno
Attention: [Name], [Title]
[Street Address]
Fresno, CA [Zip]

RC PRODUCTS 2. 0 Rev. 05-2021

CITY OF FRESNO SPECIFICATIONS

PRODUCT REQUIREMENTS CONTRACT FOR

ORTHO POLYPHOSPHATE
BID FILE NUMBER: 12401056

GENERAL CONDITIONS

1. DEFINITIONS: Wherever used in the Specifications, including the Instructions to Bidders and the Bid Proposal, or any of the Contract Documents, the following words shall have the meaning herein given, unless the context requires a different meaning. (a) "Bidder" shall mean and refer to each person or other entity submitting a bid proposal, whether or not such person or entity shall become a Seller by virtue of award of a Contract by the City.
(b) "City," “Buyer,” “Owner,” "Vendee" and "City of Fresno" shall each mean and refer to the City of Fresno, California.
(c) "Contract" and "Contract Documents" shall each mean and refer to these Specifications, including the Instructions to Bidders, the Bid Proposal and any addenda thereto, the Agreement and other standard Specifications, City's Specifications and other papers and documents incorporated by reference into or otherwise referred to in any of the foregoing documents, whether or not attached thereto.
(d) "Contractor," Seller,” "Supplier" and "Contractor" shall each mean and refer to each person or other entity awarded a Contract hereunder and named or to be named in the Agreement with the City to furnish the goods or services, or both, to be furnished under the Contract. (e) "Council" and "City Council" shall each mean and refer to the Council of the City. (f) "Goods" and "Merchandise" shall each mean and refer to the equipment, material, article, supply or thing to be furnished by the Seller under the Contract. (g) "Purchasing Manager" shall mean and refer to the Purchasing Manager of the City. (h) "Specifications" shall mean and refer to all of the Contract Documents. (i) “Working day” shall mean and refer to City regular business day.

2. INSURANCE REQUIREMENTS: (a) Throughout the life of this Agreement, CONTRACTOR shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by CITY'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, CONTRACTOR or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediat ely, and all payments due or that become due to CONTRACTOR shall be withheld until notice is received by CITY that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CITY. Any failure to maintain the required insurance shall be sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this section shall in any way relieve CONTRACTOR of its responsibilities under this Agreement. The phrase “fail to maintain any required RC PRODUCTS 2. 1 Rev. 05-2021

insurance” shall include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by CONTRACTOR shall not be deemed to release or diminish the liability of CONTRACTOR, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONTRACTOR. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of CONTRACTOR, vendors, suppliers, invitees, contractors, sub-contractors, subcontractors, or anyone employed directly or indirectly by any of them.

Coverage shall be at least as broad as:

1. The most current version of Insurance Servic es Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.”

2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto).

3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.

MINIMUM LIMITS OF INSURANCE

CONTRACTOR shall procure and maintain for the duration of the contract insurance with limits of liability not less than those set forth below. However, insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured:

1. COMMERCIAL GENERAL LIABILITY
(i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement.

RC PRODUCTS 2. 2 Rev. 05-2021

2. COMMERCIAL AUTOMOBILE LIABILITY
$1,000,000 per accident for bodily injury and property damage.

3. Workers’ Compensation Insurance as required by the State of California with statutory limits and EMPLOYER’S LIABILITY with limits of liability not less than:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.

UMBRELLA OR EXCESS INSURANCE
In the event CONTRACTOR purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY, its officers, officials, employees, agents and volunteers.

DEDUCTIBLES AND SELF-INSURED RETENTIONS
CONTRACTOR shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and CONTRACTOR shall also be responsible for payment of any self-insured retentions.

OTHER INSURANCE PROVISIONS/ENDORSEMENTS
(i) All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice has been given to CITY, except ten (10) days for nonpayment of premium. CONTRACTOR is also responsible for providing written notice to the CITY under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, CONTRACTOR shall furnish CITY with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for CITY, CONTRACTOR shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than seven (7) calendar days following to the expiration date of the expiring policy.
(ii) The Commercial General and Automobile Liability insurance policies shall be written on an occurrence form.
(iii) The Commercial General and Automobile Liability insurance policies shall be endorsed to name City, its officers, officials, agents, employees and volunteers as an additional insured for all ongoing and completed operations. The Commercial General endorsements must be as broad as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20 37.
(iv) The Commercial General and Automobile Liability insurance shall contain, or be endorsed to RC PRODUCTS 2. 3 Rev. 05-2021

contain, that the CONTRACTORS’ insurance shall be primary to and require no contribution from the City. These coverages shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents and volunteers. (v) If CONTRACTOR maintains higher limits of liability than the minimums shown above, City requires and shall be entitled to coverage for the higher limits of liability maintained by CONTRACTOR. (vi) Should any of these policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits.
(vii) All policies of insurance shall contain, or be endorsed to contain, a waiver of subrogation as to CITY, its officers, officials, agents, employees and volunteers.

PROVIDING OF DOCUMENTS
CONTRACTOR shall furnish CITY with all certificate(s) and applicable endorsements effecting coverage required herein All certificates and applicable endorsements are to be received and approved by the CITY’S Risk Manager or his/her designee prior to CITY’S execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CITY, CONTRACTOR shall immediately furnish CITY with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. All subcontractors working under the direction of CONTRACTOR shall also be required to provide all documents noted herein.

SUBCONTRACTORS
If CONTRACTOR subcontracts any or all of the services to be performed under this Agreement, CONTRACTOR shall require, at the discretion of the CITY Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the City to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by CITY Risk Manager or designee. If no Side Agreement is required, CONTRACTOR will be solely responsible for ensuring that it’s subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry.

3. INDEMNIFICATION: To the furthest extent allowed by law, including California Civil Code section 2782, CONTRACTOR shall indemnify, defend and hold harmless CITY and each of its officers, officials, employees, agents, and volunteers from any and all claims, demands, actions in law or equity, loss, liability, fines, penalties, forfeitures, interest, costs including legal fees, and damages (whether in contract, tort, or strict liability, including but not limited to personal injury, death at any time, property damage, or loss of any type) arising or alleged to have arisen directly or indirectly out of (1) any voluntary or involuntary act or omission, (2) error, omission or negligence, or (3) the performance or non- performance of this Contract . CONTRACTOR'S obli gations as set forth in this section shall apply regardless of whether CITY or any of its officers , officials, employees, agents, or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or the willful misconduct, of CITY or any of its officers, officials, employees, agents or volunteers.

performance of the work or services required under this Contract and any claim or loss, injury or damage of any type, CONTRACTOR expressly agrees to undertake a duty to defend CITY and any of its officers, officials, employees, agents, or volunteers, as a separate duty, independent of and broader that the duty to indemnify. The duty to defend as herein agreed to by CONTRACTOR expressly includes all costs of litigation, attorneys fees, settlement costs and expenses in connection with claims or litigation, whether or not the claims are valid, false or groundless, as long as the claims could be in any manner be causally connected to CONTRACTOR as reasonably determined by CITY.

It is further understood and agreed by CONTRACTOR that if CITY tenders a defense of a claim on behalf of CITY or any of its officers, officials, employees, agents, or volunteers and CONTRACTOR fails, refuses or neglects to assume the defense thereof, CITY and its officers, officials, employees, agents, or volunteers may agree to compromise and settle or defend any such claim or action and CONTRACTOR shall be bound and obligated to reimburse CITY and its officers, officials, employees, agents, or volunteers for the amounts expended by each in defending or settling such claim, or in the amount required to pay any judgment rendered therein.

The defense and indemnity obligations set forth in this section shall survive termination or expiration of this Contract.

4. WORKMANSHIP GUARANTY: The workmanship of the goods or services provided to the City by the Contractor will be in accordance with generally accepted standards.

5. WARRANTY: For the purchase of equipment and material, the Contractor, unless otherwise provided in the Specifications, shall guarantee all items furnished in accordance with the standard guarantee offered by the manufacturer to cities and consumers of the product. The Contractor shall be responsible for all warranty costs, including the transportation costs to and from the repair station.

6. PRECEDENCE OF CONTRACT DOCUMENTS: The order of precedence of documents shall be: (1) Rules and Regulations of Federal Agencies rela ting to the source of funds for this purchase; (2) Supplemental Agreements, Change Orders, or Contract the one dated later having precedence over another dated earlier; (3) Special Conditions; (4) General Conditions; (5) Technical Specifications.

Whenever any conflict appears in any portion of the Contract, it shall be resolved by application of the order of precedence.

7. CONTRACT DOCUMENTS: Upon award of the Contract, the Contractor shall execute and RC PRODUCTS 2. 5 Rev. 05-2021

submit all required documents (which will include the "Contract," a sample of which is included in these Specifications on page 1.10) to the Purchasing Manager, 2101 G Street, Bldg. A, Fresno, CA 93706 in a form acceptable to the City of Fresno within 15 calendar days (except in the event federal funding is applicable to this Contract, then 10 working days) from the date of Notice of Award. Failure to provide said documents within the designated period shall be sufficient cause to forfeit the Contractor's bid deposit and initiate a departmental recommendation to the Council to award the Contract to the next lowest responsive and responsible Bidder.

8. ASSIGNMENT OF PAYMENT: Contractor hereby agrees it will not assign the payment of any monies due it from the City under the terms of this Contract to any other individual(s), corporation(s) or entity(ies). The City retains the right to pay any and all monies due Contractor directly to Contractor.

9. PATENTS: For the purchase of equipment and material, the Contractor shall hold the City of Fresno, its officers and employees, harmless from any and all liability for damages arising out of the use of any patented material, equipment, device or process incorporated into or made a part of or required by the manufacturer's specifications to be used on or in connection with the material, equipment or supplies purchased by the City pursuant to these Specifications, and Contractor agrees, by submission of a proposal hereunder, to defend the City, at Contractor's sole expense, in any action or suit for damages or injunctive relief on account of any allegedly unauthorized use of or infringement of patent rights on any patented material, equipment, device or process, if the City is named as a defendant in any such action or suit.

10. OSHA COMPLIANCE: For the purchase of equi pment and material, the items covered by this Contract must conform with the Safety Orders of the State of California, Division of Industrial Safety, pursuant to the California Occupational Safety and Health Act, and the Federal Standards established by the Occupational Safety and Health Act of 1970, and their present and future amendments during the term of this Contract. In the event of a conflict between such Safety Orders and Federal Standards, the items shall conform to the respective Order or Standard which is more restrictive.

11. RECYCLING PROGRAM: In the event Contractor maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, Contractor at its sole cost and expense shall:
(i) Immediately establish and maintain a viable and ongoing recycling program, approved by City’s Solid Waste Management Division, for each office and facility. Literature describing City recycling programs is available from City’s Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111.
(ii) Immediately contact City’s Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility.
(iii) Cooperate with and demonstrate to the satisfaction of City’s Solid Waste Management Division the establishment of the recycling program in paragraph (i) above and the ongoing maintenance thereof.

12. DELIVERY AND EXTENSIONS: Unless otherwise provided in the Specifications, delivery shall be made F.O.B. the specified place of delivery within the City of Fresno or environs.

If Contractor is delayed making delivery by any conditions or events beyond the reasonable control of Contractor and without its fault or negligence such as acts of God or the public enemy, acts of City in its contractual capacity or otherwise, illegal strikes, boycotts or like illegal obstructive action by employee or labor organizations, illegal general lock outs or other defensive action by employers, whether general or by organizations of employers, fires, floods, epidemics, quarantine restrictions, and delays of common carriers; Contractor shall have no claim for damages against City for any such cause of delay, but shall in such cases be entitled to such extension of time as shall reasonably compensate for actual loss of time occasioned thereby, upon application to said City Manager for such extension; RC PRODUCTS 2. 6 Rev. 05-2021

provided, that no such extension of time shall be granted unless Contractor shall have notified the Purchasing Manager in writing, of the condition or event which is expected to cause a delay in delivery and the actual or estimated number of days of delay anticipated on account thereof, within one week after the commencement or occurrence of the condition or event. Contractor shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Purchasing Manager of the cessation of such occurrence. The decision of said City Manager as to the number of additional days, if any, to be allowed for completion of delivery on account of such condition or event, shall be given in writing to Contractor.

13. PAYMENT: Unless otherwise provided in the Specifications, payment of the Contract price shall be made by City to Contractor in lawful money of the United States by warrant of City issued and delivered to Contractor in the ordinary course of City business promptly after completion of delivery of the specified item(s) and their acceptance by City.

14. TERMINATION FOR CONVENIENCE: The City rese rves the right to terminate this Contract upon 60 calendar days prior written notice to the Contractor. In the event of such termination, the Contractor shall be paid for satisfactory service performed to the date of termination.

15. TERMINATION FOR NON-PERFORMANCE: If Contractor shall (i) materially breach any of its obligations under this Contract (including, without lim itation, the failure to meet quality standards or to complete delivery, within the time specified herein, of all or any part of the materials, equipment, supplies or services to be provided under the Contract), and (iii) fail to commence and diligently pursue reasonable efforts to cure such breach within 5 calendar days after written notice by the City specifically describing the breach; the City Manager or his/her designee, acting for and on behalf of the City, may at any time after the expiration of the time for delivery, terminate the Contract as to the whole thereof, or in the event partial delivery has been made and accepted, as to such items or service to be furnished which have not been delivered or accepted prior to such termination. Such termination shall be effective upon receipt by Contractor of written notice of termination from said City Manager or his/her designee, which notice shall be deemed to have been received by Contractor, if mailed, within forty-eight hours to Contractor’s address as contained in the Contractor’s Bid Proposal or, if personally delivered, upon the delivery thereof to Contractor, the authorized representative of Contractor, or to the Contractor’s said address.

The Contractor may terminate this Contract if City materially breaches any of its obligations under this Contract and fails to commence and diligently pursue reasonable efforts to cure such breach within 30 calendar days after written notice by the Contractor specifically describing the breach. Such termination shall be effective upon receipt by City of written notice of termination from Contractor, which notice shall be deemed to have been received by City, if mailed, within forty-eight hours to City’s address as contained on the signature page of the Contract or, if personally delivered, upon the delivery thereof to the authorized representative of City or to City’s said address.

16. NOTICES: Except as otherwise expressly prov ided in the Specifications, any notice required or intended to be given to either party under the terms of this Contract shall be in writing and shall be deemed to be duly given if delivered personally or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of the Bid Proposal in the case of the Contractor and at the address set forth on the signature page of the Contract in the case of the City, or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof.

17. BINDING: Subject to the following section, once this Contract is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees and representatives.

18. ASSIGNMENT: The Contract is personal to the Contractor and there shall be no assignment, transfer, sale, or subcontracting by the Contractor of its rights or obligations under the Contract without RC PRODUCTS 2. 7 Rev. 05-2021

the prior written approval of the City. Any attempted assignment, transfer, sale or subcontracting by the Contractor, its successors or assigns, shall be null and void unless approved in writing by the City.

19. COMPLIANCE WITH LAW: In providing the services required under this Contract, Contractor and its subcontractors shall at all times comply with all applicable laws of the United States, the State of California and City, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Contract.

20. WAIVER: The waiver by either party of a breach by the other of any provision of this Contract shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Contract. No provisions of this Contract may be waived unless in writing and signed by all parties to this Contract. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein.

21. HEADINGS: The section headings in this C ontract are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Contract.

22. SEVERABILITY: The provisions of this Contract are severable. The invalidity, or unenforceability of any one provision in this Contract shall not affect the other provisions.

23. INTERPRETATION: The parties acknowledge that this Contract in its final form is the result of the combined efforts of the parties and that, should any provision of this Contract be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Contract in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning.

24. ATTORNEY’S FEES: If either party is requir ed to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of the Contract, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney’s fees and legal expenses.

25. EXHIBITS: Each exhibit and attachment referenced in this Contract is, by the reference, incorporated into and made a part of this Contract.

26. CUMULATIVE REMEDIES: No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.

27. NO THIRD PARTY BENEFICIARIES: The rights, interests, duties and obligations defined within this Contract are intended for the specific parties hereto as identified in the preamble of this Contract.

Notwithstanding anything stated to the contrary in th is Contract, it is not intended that any rights or interests in this Contract benefit or flow to the interest of any third parties other than expressly identified within this section. The parties do intend that in the event that the State of California is funding the purchase hereunder, that the State of California be a third party beneficiary under this Contract and all rights, interest and benefits of this Contract accrue to the State.

28. FUNDING: This Contract is contingent on the appropriation of funds by City. Should funds not be appropriated, this Contract may be terminated by City upon prior written notice to Contractor notwithstanding any other provision of these General Conditions.

29. GOVERNING LAW AND VENUE: The Contra ct shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of the Contract and any rights and duties hereunder shall be Fresno County, California.

RC PRODUCTS 2. 8 Rev. 05-2021

30. EXTENT OF CONTRACT: Each party acknowledges that they have read and fully understand the contents of this Contract. This Contract represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral.

31. MODIFICATIONS AND CHANGE ORDERS: This Contract may be modified only by written instrument duly authorized and executed by both City and Contractor in accordance with City’s current applicable contract change order resolution, as may be revised. The City reserves the right to add, modify or delete items from the Contract includi ng, without limitation, the Special Conditions and Technical Specifications. Any such changes shall be made only by means of a formal change order signed by both the City and the Contractor.

RC PRODUCTS 3.0 Rev. 05-2021

FEDERAL REQUIREMENTS
(Not applicable to this project/purchase)

RC PRODUCTS 5.0 Rev 05-2021

CITY OF FRESNO BID SPECIFICATIONS

PRODUCT REQUIREMENTS CONTRACT FOR

ORTHO POLYPHOSPHATE
BID FILE NUMBER: 12401056

SPECIAL CONDITIONS

TERM OF CONTRACT
This Contract shall be in effect for THREE (3) year(s) from the date of the Notice to Proceed (“Initial Term”). The Contract may be extended, with the mutual consent of both parties, for TWO (2) one-year increments with price increases/decreases in accordanc e with the provisions set forth herein, all other terms and conditions specified herein remaining the same. If either the City or Contractor elects not to extend the Contract, or upon expiration of the final one-year extension term, the Contractor shall aid the City in continuing, uninterruptedly, the requirem ents of the Contract, by continuing to perform on a temporary basis, when specifically requested to do so in writing by the Purchasing Manager, for a specified term not to exceed twelve months. Such continuance shall be subject to price increases/decreases in accordance with the provisions set forth herein, and all other terms and conditions remaining the same as if the Contract had been extended for such a temporary period by an amendment hereto.

PRICING CONDITIONS
For the first 12-month period of the Contract, pricing will be fixed at the Bid Proposal price. Sixty days prior to the 1-year anniversary date of the Contract, the Contractor may submit proposed pricing revisions for the following 12-month period to the Purchasing Manager of the City of Fresno. The Contractor must provide adequate documentation to substantiate any request for price increase. Any increase in unit price for any item included in this Contract shall not exceed, unless otherwise approved by the Purchasing Manager, the percent change for the following Producer’s Price Index, as published by the Bureau of Labor Statistics: Other Miscellaneous Chemical Product Manufacturing, Water Treating Compounds (Product Code 325998). In the event that the index drops, the Contractor shall pass on to the City an equivalent reduction in pricing. The basis of the index shall be established as the last available month at the date of the Notice to Proceed.

If, during the course of this Contract, the Contractor’s selling price of any of the item(s) bid, is below the Contract Bid Proposal price, the City will receive the lowest pricing.

AUTHORIZATION TO PLACE ORDERS
Names of individuals authorized to place orders will be provided in writing by the City upon or following the issuance by the City of the Notice to Proceed. City may modify such writing from time to time by notice to the Contractor.

CONTRACTOR’S AUTHORIZED REPRESENTATIVE
The name, mailing address, telephone number, any e-mail address and any facsimile number of Contractor’s authorized representative shall be provided in writing by Contractor no later than 5 calendar days following the issuance by the City of the Notice to Proceed.

DELIVERY
Minimum value of orders placed to be delivered to the City will be $2,900.00. No minimum value will be guaranteed for will call orders. Cancellation of backorders is not acceptable.

Except as otherwise expressly provided herein, delivery(ies) shall be made within Three (3) calendar days from the respective City notification of release of goods against this Contract. The Contractor must fill orders in their entirety within seven (7) calendar days or must receive written approval from the RC PRODUCTS 5.1 Rev 05-2021

City for an extension of the delivery date. Any goods deemed by the City to be defective, or any wrong parts shipped in error, must be replaced within TWO (2) calendar days of notification.

The City must be notified twenty four (24) hours in advance of delivery or shipment may be refused.

Delivery of items is to be F.O.B. DESTINATION, FREIGHT PREPAID AND ALLOWED, to:

City of Fresno
6395 E Floradora Ave.

Fresno, CA 93727
Or

City of Fresno
10120 N Chestnut Ave.

Fresno, CA 93730
Delivery is to be made between the hours of 7:00 A.M. and 5:30 P.M. and during regular City of Fresno working days.

EMERGENCY ORDERS
The City at times may require item(s) immediately in an emergency. The emergency may be handled on a will call basis. Therefore, Contractor shall maintain an inventory within a 25-mile radius of Fresno City Hall (2600 Fresno Street, Fresno, CA) and a 24-hour emergency call number. Contractor shall expedite supply of the item(s) and in any event, delivery shall be no more than 24 hours from City’s call.

NON-DELIVERY
If the Contractor fails to meet delivery requirements, the City may, but is not obligated to, procure the goods from another source and recover any loss occasioned thereby (including, without limitation, any increase in cost and liquidated damages for Contractor’s delay up to date of delivery and acceptance by City of goods from another source), from any unpaid balance due the Contractor or through reduction of future invoices. Otherwise, Contractor will reimburse City within 30 days of receipt of invoice from the City. The price paid by the City shall be considered the prevailing market price at the time purchase is made. City will notify Contractor of any decis ion to procure the goods from another source. Such notification may be by telephone, electronic mail, or fa csimile to Contractor or Contractor’s authorized representative.

LIQUIDATED DAMAGES
Time of delivery is of the essence, and the City and Contractor, by executing the Contract, each agree that actual damages to the City, and actual damages for the inconvenience and loss which will flow to the inhabitants of the City, from any delay in delivery beyond the date or dates provided herein, or portions thereof, are extremely difficult or impossible to determine, and, accordingly, it is agreed that the Contractor shall be liable for and shall pay to the City, as fixed, agreed, and liquidated damages, and not as a penalty the sum of one thousand dollars ($1,000.00) per day for each calendar day of delay in delivery of item(s) from the maximum delivery date as specified herein or in any written extension of time granted by the City. Such payment due the City will be deducted by the City from any payments due to the Contractor for item(s) delivered. Otherwise, Contractor will reimburse City within 30 days of receipt of invoice from the City.

PAYMENT
The Contractor shall be eligible for progress payments upon delivery and acceptance of any number of items.

RC PRODUCTS 5.2 Rev 05-2021

The Contractor must invoice the correct department in the City of Fresno, Water Division, in order to initiate the payment process. Invoices shall be supplied in duplicate and conspicuously displayed with the City of Fresno Purchase Order Number and shall be sent to:

City of Fresno
Water Division
1910 E. University Ave.

Fresno, CA 93703

[email protected]

RC PRODUCTS 5.3 Rev 05-2021

CITY OF FRESNO SPECIFICATIONS

PRODUCT REQUIREMENTS CONTRACT FOR

ORTHO POLYPHOSPHATE
BID FILE NUMBER: 12401056

TECHNICAL SPECIFICATIONS

GENERAL
(a) It is the purpose and intent of these Specifications to describe the minimum requirements for Ortho polyphosphate to be used by Water Division of the Department of Public Utilities within the City of Fresno.
(b) All items not specifically mentioned which are required for a complete unit shall be included in the unit bid price.
(c) All equipment and accessories to be furnished must be new and in current production. All products shall conform in design, strength, quality of material and workmanship to current industry standards. (d) Each bid shall be accompanied by a copy of any applicable manufacturer's Published Price List or website, and two copies of the manufacturer's descriptive literature and specifications or website, including a copy of the manufacturer's standard warranty. (e) All equipment and accessories shall comply with regulations of the Federal Occupational Safety and Health Administration (OSHA) and the California Occupational Safety and Health Administration (Cal/OSHA), whichever is more restrictive.

TECHNICAL SPECIFICATIONS:

Explanation of Bid Item #1

1. This is a unit price per gallon bid item to provide ortho/poly phosphate blend. This unit price shall include the supply and delivery of ortho/poly phosphate blend to the City of Fresno’s Surface Water Treatment Facilities. This bid item includes all costs for labor, travel expense, materials, tools, equipment, and the supply and delivery of the ortho/poly phosphate blend to the Facilities. The supplied ortho/poly phosphate blend shall meet the requirements outlined in the following technical specifications. The projected annual usage of ortho/poly phosphate blend is approximately 91,000 gallons.

2. The City plans to use ortho/poly phosphate blend to coat the distribution system surrounding the Surface Water Treatment Facility in order to prevent corrosion and to limit any possible upsets that may be caused by the introduction of surface water to a system that had been exclusively ground water. This chemical will be applied to finished water from the City’s Surface Water Treatment Facilities. The product bid must be suitable for this application.

3. Product must be clear, homogenous liquid with a turbidity less than 2.0 NTU. The ortho/poly phosphate blend shall be in a 1:1 ratio by weight (REBID). Ortho/poly phosphate blend (REBID) is a direct additive used in the treatment of potable water. This material shall be certified as suitable for contact with or treatment of drinking water by an accredited certification organization in accordance with ANSI/NSF Standard 60, Drinking Water Treatment Chemicals-Health Effects. Copies of the Product Information Bulletin, ANSI/JSF 60 letter of acceptance or completed application for certification, and Material Safety Data Sheet for the ortho/poly phosphate blend to be supplied shall accompany the bid.

Failure to comply with this requirement may be considered grounds to declare the Bidder non- RC PRODUCTS 5.4 Rev 05-2021

responsive to the specifications, and thus ineligible for award.

Product shall be delivered to the Northeast Facility in 275 gallon (or comparable) totes which can be maneuvered using an electric pallet jack into position on a 60” x 60” floor scale for direct dispensing via a 2” gravity feed line. The totes must be in good condition and not damaged in any way that could prevent an electric pallet jack from easily rolling under and lifting the tote.

The totes shall be capable of delivering product from the bottom of one (1) vertical face, and shall have a valve and 2” male quick coupler style fitting in place at which point the City shall make connection to its 2” female quick coupler connection. All tote openings shall be secured in such a manner that any post-fill tampering will be readily evident. Each delivery must include a copy of the most current MSDS for the product. Product shall be delivered to the Southeast Facility as Bulk up to 4,000 gallons per truckload.

4. The ortho/poly phosphate blend shall conform to the following listed standards. If the ortho/poly phosphate blend does not meet these standards, the delivery will be refused.

A. The orthophosphate to polyphosphate ratio must be 1:1 (by weight).

B. Product must be freeze/thaw stable.

C. Specific gravity must be 1.39 +/- 0.03.

D. Product must have a zero bacteria count using standard test methodology (Heterotrophic Plate Count).

E. The ortho/poly phosphate blend solution shall have a total phosphate content of 36% +/- 1%.

F. The ortho/poly phosphate blend must be 100% soluble in water. There shall be no signs of product precipitation.

5. The person (s) authorized to certify the affidavit of compliance for the Contractor shall be stated in the bid proposal.

DELIVERY

1. The Contractor shall make deliveries of approximately 825 gallons of ortho/poly phosphate blend, or as specified, upon request.

Deliveries shall be made to each facility located at 10210 N. Chestnut Avenue at Behymer Avenue and 6395 E Floradora Ave. City will specify the exact delivery times when the order is placed. Most orders will be scheduled for early AM deliveries. Contractor must contact the Surface Water Treatment Facility if deliveries will be more than 30 minutes late. Contact numbers will be provided at a later time to the successful bidder.

2. The Contractor shall fax or deliver the following information for each delivery to the City of Fresno Water Division:

A. Contractor’s invoice stating quantity of product delivered.

PRODUCTS 6.0 Rev. 05-2021

BIDDER’S NAME:
(Submit with Bid Proposal, if applicable)

EXHIBIT “X”, IF APPLICABLE

PRODUCT PURCHASE CONTRACT FOR

ORTHO POLYPHOSPHATE
Bid File No. 12401056

If you are unable to fully conform to the specifications, have deviations to the specifications, request for an approved equal, or are unable to comply with any condition herein described; Bidders shall contact the designated Procurement Specialist in the Purchasing Division (see cover page), and submit this form at least seven (7) days prior to the scheduled bid opening . Reference the requirement you are unable to comply with and explain any deviation or exceptions below. If necessary, an appropriate addendum will be issued to all bidders stating revisions, deletions, or additions to be made to the Specifications as a result of any inquiries. The City will not be responsible for verbal responses made by parties other than the Purchasing Manager or designee. Bidders shall submit this exhibit at least seven days prior to the schedule bid opening or the bidder may be found non-responsive.

REFERENCE REMARKS

FIN 4.0
RC PRODUCTS 1.18 Rev. 05-2021