1 GENERAL SERVICE AGREEMENT
This Agreement is made and entered into this ____ day of _________, 20__, by and between the CITY OF MANTECA, a public body, corporate and politic ("City" or “Buyer”) and Calgon Carbon Corporation, a Delaware corporation ("Consultant" or “Seller”). Calgon Carbon Corporation’s registration with California Secretary of State is attached.
RECITALS
A. Consultant is specially trained, experienced, and competent to perform the professional services required by this Agreement.
B. Consultant possesses the skill, experience, ability, background, certification, and knowledge to provide the services described in this Agreement on the terms and conditions specified herein.
C. City desires to retain Consultant to render the professional services set forth in this Agreement.
AGREEMENT
1. Scope of Services. Consultant shall perform the Granular Activated Carbon Exchange services described in the attached Attachment 1 that is incorporated by this reference, and pursuant to the Proposal submitted by Consultant dated January 12, 2023, and attached hereto as Attachment 2. Consultant shall provide these services at the time, place, and in the manner specified in Attachment 1, subject to the direction of the City through its staff that may be provided from time to time. Performance of the Granular Activated Carbon Exchange services is sometimes referred to herein as “the Project.”
2. Work Through City Staff. Consultant shall perform its services pursuant to this Agreement solely through City staff. No communications, information or documentations shall be made directly to any applicant to the City without the prior written consent of the City. This shall not apply to the sole request of information or clarification of information by Consultant from the applicant. All requests shall be noted to City in an expeditious manner.
3. Time of Performance. Consultant’s services will commence upon execution of this Agreement and shall be completed in accordance with the Schedule of Activities, attached hereto as Attachment 3. All work shall be completed no later than December 31, 2024. Failure to submit work products in accordance with the Schedule of Activities may result in the City withholding progress payments. Repeated failure to complete work products in accordance with the Schedule of Activities may result in a reduction of the total compensation provided for in Section 4 herein.
4. Compensation. Without additional authorization from the City, compensation to be paid to Consultant shall not exceed Eight Hundred Fifty Thousand DOLLARS ($850,000.00).
ATTACHMENT 1
2 Payment by City under this Agreement shall not be deemed a waiver of any defects, even if those defects were known to the City at the time of payment.
5. Method of Payment. Consultant shall submit invoices to City specifying and describing the work performed upon delivery of product. Consultant’s bills shall include a brief description of the services performed, and the date the services were performed. Full payment of each task will only be made at such time as each task is completed.
City shall pay Consultant no later than 30 days after receipt of the invoice by City staff. Payments may be delayed by City if Consultant fails to provide services in accordance with the Schedule of Activities, unless the City has provided prior written consent to any delay in the schedule.
6. Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, the term "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the time of execution of this Agreement.
Consultant shall not perform, nor be compensated for, Extra Work without the City’s prior written authorization.
7. Termination. This Agreement may be terminated by the City immediately for cause, or by either party without cause upon 15 days’ prior written notice of termination. Upon termination, Consultant shall be entitled to compensation for services performed up to the effective date of termination upon submittal of an invoice for same.
8. Ownership of Documents; Confidentiality.
A. All plans, studies, documents, and other writings prepared by and for Consultant, its officers, employees, agents, and subcontractors in the course of implementing this Agreement, except working notes and internal documents, shall become the property of City upon payment to Consultant for such work. City shall have the sole right to use such materials in its discretion without further compensation to Consultant or to any other party. Consultant shall, at Consultant's expense, provide such reports, plans, studies, documents and other writings to City upon written request by City. Consultant shall not be responsible for any unauthorized modification or use of such information for other than its intended purpose.
B. All memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other documents and data, either created by or provided to Consultant in connection with the performance of this Agreement, shall be held confidential by Consultant. These materials shall not, without the City’s prior written consent, be used by Consultant for any purposes other than the performance of the services under this Agreement. Nor shall these materials be disclosed to any person or entity not connected with the performance of services under this Agreement. Nothing furnished to Consultant that is otherwise known to Consultant, or is generally known, or has become known to the related profession shall be deemed confidential. Consultant shall not use City's name or insignia, photographs relating to the Project for which Consultant's services are rendered, or any publicity pertaining to the Consultant's services under this Agreement in any magazine, trade paper, ATTACHMENT 1
3 newspaper, television or radio production, or other similar medium without the City’s prior written consent.
9. Consultant's Books and Records.
A. Consultant shall maintain all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to City, for a minimum period of three years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement.
B. Consultant shall maintain all records that document performance under this Agreement for a minimum period of three years, or for any longer period required by law, from the date of termination or completion of this Agreement.
C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit in a redacted format to conceal Consultant’s costs and profit margins, at any time during regular business hours, upon written request by the City Manager, City Attorney, City Auditor, or a designated representative of any of these officers. Redacted copies of such documents shall be provided to City for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the redacted records shall be available at Consultant's address specified in Section 16 of this Agreement.
D. Where City has reason to believe that records or documents may be lost or discarded due to the dissolution or termination of Consultant's business, City may, by written request, require that custody of the records be given to the City and that the records and documents be maintained in City Hall. Access to these records and documents shall be granted to any party authorized by Consultant, Consultant's representatives, or Consultant's successor-in-interest.
10. Independent Contractor. In the performance of the work and services required by this Agreement, Consultant shall act as and be an independent contractor and not an agent, or employee of the City. Consultant shall obtain no rights to retirement or other benefits that accrue to City's employees, and Consultant expressly waives any claim it may have to any such rights.
11. Interest of Consultant.
A. Consultant represents that neither it nor any employee has any investment or interest in real property, and shall not acquire any such interest, direct or indirect, within the area covered by this Agreement, or any other source of income, interest in real property, or investment that would be affected in any manner or degree by the performance of Consultant's services hereunder. Consultant further represents that, in the performance of its duties hereunder; no person having any such interest shall perform any services under this Agreement.
B. Consultant is not a designated employee within the meaning of the Political Reform Act because Consultant:
(1) will conduct research and arrive at conclusions with respect to its rendition of information, advice, recommendation, or counsel ATTACHMENT 1
4 independent of the control and direction of the City, or of any City official, other than normal Agreement monitoring; and
(2) possesses no authority with respect to any City decision beyond the rendition of information, advice, recommendation, or counsel. (FPPC Reg. 18700(a)(2).)
12. Professional Ability of Consultant.
A. City is relying upon the professional training and ability of Consultant to perform the services hereunder as a material inducement to enter into this Agreement. Consultant shall therefore provide skilled professional and technical personnel to perform all services under this Agreement. All work performed by Consultant shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily to be expected of competent professionals in Consultant's field of expertise.
B. The primary provider of the services required by this Agreement shall be Calgon Carbon Corporation. A list of other individuals assigned to the Project will be provided to City for its review and approval, and these individuals shall not be replaced without the City’s prior written consent.
13. Compliance with Laws. Consultant shall use the customary standard of care in its profession to comply with all applicable federal, state, and local statutes, codes, ordinances, and regulations.
14. Licenses. Consultant represents and warrants to City that it has all licenses, permits, qualifications, insurance, and approvals that are legally required of Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any licenses, permits, insurance, and approvals that are legally required of Consultant to practice its profession.
15. Indemnification and Hold Harmless. Consultant agrees to defend, indemnify, and hold harmless the City, its officers, officials, agents, employees, and volunteers, from and against any and all claims, demands, actions, losses, damages, injuries, and liability, direct or indirect (including any and all costs and expenses in connection therewith), arising out of Consultant’s performance of this Agreement, or Consultant’s failure to comply with any of its obligations contained in this Agreement; excluding, however, any claim arising out of the active negligence or willful misconduct of the City, its officers, agents, employees, or volunteers.
16. Insurance Requirements.
A. Job specific insurance requirements can be found on the attached Attachment 4.
Other insurance provisions can be found below:
B. Endorsements. Each general liability and automobile liability insurance policy shall be with insurers possessing an A.M. Best's rating of no less than A:VII and shall be endorsed with language substantially as follows:
ATTACHMENT 1
5 (1) The City, it’s elected and appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant, including materials, parts, or equipment furnished in connection with such work.
(2) The policy shall be considered primary insurance as respects the City, its elected and appointed officers, officials, employees, agents and volunteers. Any insurance maintained by the City, including any self-insured retention the City may have, shall be considered excess insurance only and shall not contribute with it. (3) The insurance shall apply to each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. (4) The insurer waives all rights of subrogation against the City, its elected and appointed officers, officials, employees, and agents. (5) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected and appointed officers, officials, employees, agents, or volunteers.
(6) The insurance provided by the policy shall not be suspended, voided, canceled, or reduced in coverage or in limits except after 30 days written notice has been received by the City.
(7) The City will not accept any endorsements that were issued in 2004. Acceptable endorsement forms are CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01.
C. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the City's option, Consultant shall demonstrate financial capability for payment of those deductibles or self-insured retentions.
D. Certificates of Insurance. Consultant shall provide to City certificates of insurance with original endorsements as evidence of the required insurance coverage. Certificates of insurance shall be filed with the City on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement.
17. Notices. Any notice required to be given under this Agreement shall be in writing and either served personally or sent prepaid, first class mail. Any such notice shall be addressed to the other party at the address set forth below. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section.
If to City: City of Manteca
1001 W. Center Street
ATTACHMENT 1
6 Manteca, CA 95337
Attention: George Montross
If to Consultant: ________________________
________________________
________________________
Attention: _______________
18. Entire Agreement. This Agreement constitutes the complete and exclusive statement of Agreement between the City and Consultant. All prior written and oral communications, including correspondence, drafts, memoranda, and representations, are superseded in their entirety by this Agreement.
19. Amendments. This Agreement may be amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney.
20. Assignment and Subcontracting. The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience, and competence of Consultant. Assignments of any or all rights, duties, or obligations of the Consultant under this Agreement will be permitted only with the express written consent of the City. Consultant shall not subcontract any portion of the work to be performed under this Agreement, except for freight services, without the written authorization of the City. If City consents to such subcontract, Consultant shall be fully responsible to City for all acts or omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of the City to pay any monies due to any such subcontractor other than as may be required by law.
21. Waiver. Waiver of any breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach or default of the same or any other provision under this Agreement.
22. Severability. If any provision of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
23. Controlling Law; Venue. This Agreement and all matters relating to it shall be governed by the laws of the State of California, and any legal action relating to this Agreement shall take place in the Superior Court, County of San Joaquin.
24. Litigation Expenses and Attorneys' Fees. If either party to this Agreement commences any legal action against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees.
25. Mediation. The parties agree to make a good faith attempt to resolve any disputes arising out of this Agreement through mediation prior to commencing litigation. The parties shall mutually agree upon the mediator and shall divide the costs of mediation equally. If the parties are unable to agree upon a mediator, the dispute shall be submitted to JAMS/ENDISPUTE ATTACHMENT 1
7 ("JAMS") or its successor in interest. JAMS shall provide the parties with the names of five qualified mediators. Each party shall have the option to strike two of the five mediators selected by JAMS, and thereafter the mediator remaining shall hear the dispute. If the dispute remains unresolved after mediation, either party may commence litigation.
26. Execution. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy has been signed by both parties.
27. Authority to Enter Agreement. Consultant warrants that it has all requisite power and authority to conduct its business and to execute, deliver, and perform this Agreement. Each party warrants to the other that the signatories to this Agreement have the legal power, right, and authority to enter into this Agreement and to bind each party.
28. Prohibited Interests.
A. Consultant warrants that it has not employed or retained any person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement.
Further, Consultant warrants that it has neither paid nor agreed to pay any person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For any breach or violation of this warranty, City shall have the right to rescind this Agreement without liability.
B. For the term of this Agreement, no member, officer, or employee of City, during the period of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
29. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer, and it shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
30. Precedence. In case of conflict between Consultant’s Proposal/Granicus’s attachments and the City’s Agreement/City’s attachments, the City’s Agreement and City’s attachments shall take precedence over Consultant’s proposal/Consultant’s attachments..
31. LIMITATION OF LIABILITY: Notwithstanding any provision to the contrary herein, the Parties hereto agree that in no event shall either party be liable to the other party for any indirect, special, consequential, incidental or punitive damages, or lost profits, as a result of a breach of any provision of this Agreement or for any other claim of any kind arising out of or relating to this Agreement, whether in contract, in tort or otherwise, unless such damages arise due to the gross negligence or willful misconduct of a Party. Notwithstanding any provision to the contrary herein, for all losses, damages, liabilities or expenses (including attorney’s fees and costs), whether for indemnity or negligence, including errors, omissions or other acts, or willful misconduct, or based in contract, warranty (including any costs and fees for re-performing services ATTACHMENT 1
8 or curing a breach hereof), or for any other cause of action (individually, a "Claim"; collectively, "Claims"), Seller’s liability, including the liability of its insurers, employees, agents, directors, and officers and all other persons for whom Seller is legally responsible, shall not, to the maximum extent permitted by law, exceed in the cumulative aggregate with respect to all Claims arising out of or related to this Agreement, the lesser of (a) the total amount of compensation paid to Seller hereunder, and (b) One Million Dollars ($1,000,000), unless such damages, Claims, and/or liabilities arise due to the gross negligence or willful misconduct of a Party.
32. FORCE MAJEURE: Notwithstanding any provision to the contrary herein, Seller shall have no liability to Buyer or its affiliates, and shall have the right to suspend performance (including, without limitation, shipments) hereunder, in the event of war, riot, terrorism, accident, explosion, sabotage, flood, acts of God, fire, court order, strike, labor disturbance, work stoppage, national defense requirements, act of governmental authority, pandemic, epidemic, extraordinary failure of equipment or apparatus, inability to obtain electricity or other type of energy, raw material, labor, equipment or transportation, or other causes beyond Seller’s reasonable control. It is understood and agreed that settlement of strikes, lockouts and other labor disputes shall be entirely within the discretion of Seller and that nothing in this Agreement shall require the settlement of strikes, lockouts and labor disputes when such course is inadvisable in the sole discretion of Seller.
33. LIMITED WARRANTIES:
(a) Unless otherwise specifically provided for in the Documentation, Seller warrants that all Products provided under this Agreement shall, at the time of delivery, conform to Seller’s thenapplicable specifications for such Products. Seller shall correct (by replacement of Goods or reperformance of services) any failure to conform to the foregoing warranty of which it is notified in writing within ninety (90) days from delivery. Any Goods removed in connection with such replacement may be reactivated or disposed of at Seller’s sole discretion. (b) THE OBLIGATIONS CREATED BY THIS WARRANTY TO REPAIR OR REPLACE
DEFECTIVE GOODS OR TO PROVIDE CORRECTIVE SERVICES SHALL BE THE SOLE
REMEDY OF BUYER IN THE EVENT OF DEFECTIVE GOODS OR SERVICES, UNLESS SUCH DEFECTIVE GOODS CAUSED DAMAGES TO THE CITY AS DISCUSSED HEREIN.
THERE ARE NO WARRANTIES MADE WITH REGARD TO THE PRODUCTS OTHER THAN THOSE CONTAINED IN THIS SECTION. ALL OTHER WARRANTIES, EITHER
EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT
LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
(c) The sale of any Products pursuant to this Agreement does not include any license, express or implied, to practice any intellectual property owned or licensed by any third party. Buyer agrees not to use the Products for any patented use not set forth expressly in this Agreement, absent a separate license from the holder of such patent. Additionally, Buyer agrees not to resell or sublicense the use of Products for any use not expressly granted hereunder. Any warranty obligations do not apply to any specific use of the Products, application of the Products, modification of the Products, or combination of the Products with any product manufactured by ATTACHMENT 1
9 any third party. Seller, except as noted herein, does not and will not warrant, indemnify, or in any other way share responsibility for Buyer’s use, application, modification, or combination of the Products. Consultant, however, will defend City from and against all intellectual property losses, liabilities, damages and expenses arising from any claim or suit by a third party unaffiliated with either Party to this Agreement (“IP Claims”) and shall pay all losses, damages, liabilities, settlements, judgments, awards, interest, civil penalties, and reasonable expenses (collectively, “IP Losses,” and including reasonable attorneys’ fees and court costs), to the extent arising out of any IP Claims that Consultant’s product(s) infringe(s) a valid U.S. copyright or U.S. patent issued as of the date of this Agreement.
34. EXPORT CONTROLS: Buyer acknowledges that the Products and related technology are subject to U.S. export control and economic sanctions laws and regulations, which may include the International Traffic in Arms Regulations (ITAR), the Export Administration Regulations (EAR) and regulations promulgated by the U.S. Department of the Treasury Office of Foreign Assets Control (OFAC). Buyer further acknowledges that the re-export of the Products and/or related technology to a third country or retransfer to an unapproved end user may require a license or other authorization from the Government of the United States. Such licenses or other authorizations may impose further restrictions on the re-export or retransfer of the Products and/or related technology. U.S. law also restricts the re-export or retransfer of U.S.-origin goods, technology, or services to countries or persons subject to U.S. sanctions or embargoes. Buyer represents and warrants that it is in compliance with and agrees to comply with all such applicable export control and economic sanctions laws and regulations. It is the sole responsibility of Buyer to apply for and obtain any necessary licenses or other authorizations prior to any re-export or retransfer of the Products and/or related technology. Seller makes no warranty that any such licenses or other authorizations will be granted, and shall have no liability for Buyer’s inability to obtain such licenses or other authorization or for any violation by Buyer of any applicable export control and/or economic sanctions laws and regulations. Buyer will indemnify Seller and hold it harmless from any liability resulting from Buyer’s violation of this provision or applicable export laws or regulations. Notwithstanding any other provision in this Agreement, Seller shall have the right to terminate this Agreement after meeting and conferring with the Buyer (City), that Buyer has breached, intends to breach, or insists upon breaching any of the provisions in the above clauses.
This Space Purposely Left Blank
ATTACHMENT 1
10 TO EFFECTUATE THIS AGREEMENT, each of the parties has caused this Agreement to be executed by its duly authorized representative as of the date set forth in the introductory paragraph on page 1 above.
CITY OF MANTECA: CONSULTANT:
_________________________________ ___________________________________ Gary Singh, Mayor (Type name of Consultant/form of organization)* ATTEST: By: ___________________________________
(Signature)
_________________________________ ___________________________________ Cassandra Candini-Tilton, (Type name and title)
Director of Legislative Services
COUNTERSIGNED: By: ___________________________________
(Signature)
_________________________________ ___________________________________ Jared Hansen, (Type name and title)
Interim Director of Finance
COUNTERSIGNED: Address: ____________________________
_________________________________ ____________________________ Dawn Cortesi,
Interim Director of Human Resources Telephone: ____________________________ APPROVED AS TO FORM:
L. David Nefouse, City Attorney
By:_________________________________
Daniella Green, Assistant City Attorney
ATTACHMENT 1
11 ATTACHMENT 1
REQUEST FOR PROPOSAL
The City of Manteca’s Public Water System has a Domestic Water Supply Permit with the State Water Resources Control Board, which restricts the City to the use of Calgon Carbon’s Virgin F400 Granular Activated Carbon in removing 1,2,3 Trichloropropane from groundwater.
Since this carbon is only available from a single vendor, Calgon Carbon Corporation, they were contacted directly and asked to supply a proposal for services. The proposal includes the cost to exchange carbon in a single vessel, the City has 24 vessels in service, so the agreement’s compensation is based on the cost to exchange the carbon in all 24 vessels.
ATTACHMENT 1
12 ATTACHMENT 2
CONSULTANT’S PROPOSAL
ATTACHMENT 1
13 ATTACHMENT 3
SCHEDULE OF ACTIVITIES
1. The City of Manteca shall notify Calgon Carbon Corporation 30 calendar days in advance of a Granular Activated Carbon (GAC) Exchange.
2. Calgon Carbon Corporation shall coordinate with the City of Manteca to confirm the date of the Exchange Services.
3. Calgon Carbon Corporation shall conduct the GAC Exchange Services.
4. Calgon Carbon Corporation shall submit an invoice to the City of Manteca in accordance with the agreement.
ATTACHMENT 1