AGREEMENT FOR SUPPLIES AND SERVICES
THIS AGREEMENT is made and entered into this _day of
, 2022, by and between the City of Merced, a California Charter Municipal Corporation, whose address of record is 678 West 18*h Street, Merced, California 95340, (hereinafter referred to as "City") and Trojan Technologies Group UCL, a British Colombia Corporation, whose address of record is 3020 Gore Road, London, ON Canada N5V477 (hereinafter referred to as "Vendor").
WHEREAS, City requires the supply and delivery of uv lamps and related equipment and supplies; and,
WHEREAS, Vendor represents that it possesses the skills and ability to safely provide the supply and delivery of uv lamps and related equipment and supplies at the request of the City.
NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants hereinafter recited, hereby agree as follows:
1. SCOPE OF SERVICES. The Vendor shall furnish the following supplies and services: Vendor shall supply and deliver the products and materials typically sold by Vendor, including, but not limited to uv lamps and related equipment and supplies.
No additional services shall be performed by Vendor unless approved in advance in writing by the City, stating the dollar value of the services, the method of payment, and any adjustment in contract time. All such services are to be coordinated with City and the results of the work shall be monitored by the Director of Public Works or designee. However, the means by which the work is accomplished shall be the sole responsibility of the Vendor.
RESERVED.
3. TERM OF AGREEMENT. The term of this Agreement shall
commence upon the day first above written and end on June 30, 2023.
4. COMPENSATION. Payment by the City to the Vendor for actual ervices and supplies delivered to City pursuant to this Agreement shall be mad pon presentation of an invoice detailing the services performed and quantities o all products, materials and supplies delivered under the Scope of Services and in X: \Agreements\Public Works\2022\Supply and Services Agreement - Trojan FY 22-23.docx 1 accordance with the quoted unit/item price. Payment by City to Vendor shall be made within forty-five (45) days of Vendor's presentation of the applicable invoice to the City. The Vendor agrees to provide all supplies and services required under the Scope of Services in an amount not to exceed $300,000.00 for the 2022/2023 Fiscal Year.
AVOIDANCE OF BANK FRAUD. City and Vendor recognize the
risk of banking fraud that occurs when third parties attempt to impersonate a party to the Agreement and request payment under new banking instructions. To avoid potential banking fraud, any changes to bank transfer or payment mailing instructions must be confirmed by Vendor in writing, which shall also be veritied by the City by speaking with Vendor's accounts receivable contact person (which Vendor shall provide the contact information for). Should Vendor request payment mailing changes or new banking instructions, City shall have an additional ten (10) days to remit any outstanding payments to allow City to confirm the request as required by this section.
6. TRAINING AND SAFETY REQUIREMENTS. Vendor shall
properly and legally maintain all vehicles and equipment used in connection with the performance of this Agreement. Vendor shall train all delivery drivers and personnel to safely handle and deliver all materials, products and supplies being provided to City under this Agreement. Vendor agrees to take all reasonable precautions necessary to minimize the potential for spillage during the delivery of all materials, products and supplies, including spillage that may occur during the connection or disconnection of any pipes, hoses, lines or other conduits or containers. Vendor shall maintain records or training of Vendor's drivers and other personnel, which shall be made available to City as set forth in Section 7 of this Agreement.
VENDOR'S BOOKS AND RECORDS. Vendor shall maintain any
and 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 the City for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Vendor to this Agreement. Any records or documents required to be maintained shall be made available for inspection, audit and/or copying at any time during regular business hours, upon oral or written request of the City.
8. INDEPENDENT CONTRACTOR. It is expressly understood that Vendor is an independent contractor and that its employees shall not be employees X: \Agreements\Public Works\2022\Supply and Services Agreement - Trojan FY 22-23.docx 2 of or have any contractual relationship with the City. Vendor shall be responsible for the payment of all taxes, workers' compensation insurance and unemployment insurance. Should Vendor desire any insurance protection, the Vendor is to acquire same at its expense.
In the event Vendor or any employee, agent, or subcontractor of Vendor providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, Vendor shall indemnify, protect, defend, and hold harmless the City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Vendor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
9. INDEMNITY. To the extent of Vendor's proportionate fault, Vendor shall indemnify, protect, defend (with legal counsel selected by the City), save and hold City, its officers, employees, and agents, harmless from any and all claims or causes of action for death or injury to persons, or damage to property resulting from intentional or negligent acts, errors, or omissions of Vendor or Vendor's officers, employees, volunteers, and agents during performance of this Agreement; Vendor shall indemnify, protect, defend (with counsel selected by the City) save and hold City, its officers, employees and agents harmless from any and claims or causes of action for any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct, negligent acts, or omissions of Vendor or its employees, subcontractors, or agents, or by the quality or character of Vendor's work, except for loss caused by the negligence or willful misconduct of the City or its officers, employees, volunteers or agents. It is understood that the duty of Vendor to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve Vendor from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall survive the termination of this Agreement and shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, Vendor acknowledges and agrees to the provisions of this Section and that it is a material element of consideration.
X:lAgreements\Public Works\2022\Supply and Services Agreement - Trojan FY 22-23.docx 3 10. WARRANTY. Vendor warrants to City that each of the goods supplied to City conforms to its written warranty set forth in its user manual in effect on the date of delivery, or, if there is no express warranty therein, that each of the goods will be free from defects in material and workmanship and will conform to the manufacturer's quoted specifications for twelve (12) months from delivery. Warranties do not extend to consumable items such as, without limitation, reagents, batteries, mercury cells, and light bulbs. Vendor warrants that it will perform all Services in accordance with its standard practices and that the Services will be free from defects in workmanship for a period of ninety (90) days from their date of performance. If Vendor breaches this warranty and the City notifies Vendor of such breach within 30 days of the end of the applicable warranty period, Vendor will, at its option, either replace or repair the nonconforming goods, or re-perform any nonconforming Services, or refund the amounts paid by City to Vendor for the nonconforming goods and/or Services.
THIS IS THE EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY.
VENDOR EXPRESSLY DISCLAIMS ANY REMEDIES OF "COVER" AND
ANY WARRANTIES IMPLIED BY LAW, INCLUDING BUT NOT LIMITED
TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
All product warranties and guarantees shall only be enforceable if (a) all goods are properly installed, inspected regularly, and are in good working order, pursuant to commercially reasonable standards, (b) all operations are consistent with Vendor's commercially reasonably recommendations, (c) operating conditions at the City site have not materially changed and remain within anticipated specifications, and (d) no reasonably unforeseeable circumstances exist or arise.
11. LIMITATION ON LIABILITY. WITH THE EXCEPTION OF
THIRD PARTY CLAIMS RELATING TO PERSONAL INJURY OR DEATH,
OR ANY CLAMS ARISING FROM VENDOR'S INTENTIONAL
MISCONDUCT, THE TOTAL LIABILITY OF VENDOR AND ITS
SUBSIDIARIES, AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS AND AGENIS to CIlY ARISING OUT OF PERFORMANCE,
NONPERFORMANCE, OR OBLIGATIONS IN CONNECTION WITH THE
DESIGN, MANUFACTURE, SALE, DELIVERY, AND/OR USE OF GOODS
AND/OR SERVICES IN NO CIRCUMSTANCE INCLUDES ANY
LIQUIDATED, PENALTY, INCIDENTAL OR CONSEQUENTIAL DAMAGES
OF ANY KIND, NOR EXCEED THE TOTAL AMOUNT OF COMPENSATION ACTUALLY PAID TO VENDOR UNDER THE CONTRACT.
X:lAgreementstPublic Works\2022\Supply and Services Agreement - Trojan FY 22-23.docx 4 12. INSURANCE. During the term of this Agreement, Vendor shall maintain in full force and effect at its own cost and expense, the following insurance coverage:
a. Workers' Compensation Insurance. Full workers' compensation insurance shall be provided with a limit of at least One Hundred Thousand Dollars ($100,000) for any one person and as required by law, including Employer's Liability limits of $1,000,000.00 per accident. The policy shall be endorsed to waive the insurer's subrogation rights against the City. b. General Liability.
(i) Vendor shall obtain and keep in full force and effect general liability coverage at least as broad as ISO commercial general liability coverage occurrence Form CG 0001.
(ii) Vendor shall maintain limits of no less than One Million Dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage.
(ili) The City, its officers, employees, volunteers and agents are to be named as additional insureds under the policy, as respects liability arising out of work or operations performed by or on behalf of the Vendor.
(iv) The policy shall stipulate that this insurance will operate as primary insurance for work performed by Vendor and its sub- contractors, and that any other insurance or self insurance maintained by City or other named insureds shall be excess and non-contributory.
(v) Vendor shall maintain its commercial general liability coverage for three (3) years after completion of the work and shall add an additional insured endorsement form acceptable to the City naming the City of Merced, its officers, employees, agents and volunteers for each year thereafter for at least three (3) years after completion of the work. Copies of the annual renewal and additional insured endorsement form shall be sent to the City within thirty (30) days of the annual renewal.
X:lAgreements\Public Works\2022\Supply and Services Agreement - Trojan FY 22-23.docx 5 c. Automobile Insurance.
(i) Vendor shall obtain and keep in full force and effect an automobile policy of at least One Million Dollars ($1,000,000) per accident for bodily injury and property damage.
(ii) The City, its officers, employees, volunteers and agents are to be named as additional insureds under the policy, as respects automobiles owned, leased, hired or borrowed by the Vendor. (iii) The policy shall stipulate that this insurance will operate as primary insurance for work performed by Vendor and its sub- contractors, and that any other insurance or self insurance maintained by City or other named insureds shall be excess and non-contributory.
Qualifications of Insurer. The insurance shall be provided by an acceptable insurance provider, as determined by City, which satisfies all of the following minimum requirements:
(i) An insurance carrier admitted to do business in California and maintaining an agent for service of process within this State; and,
(ii) An insurance carrier with a current A.M. Best Rating of A: VII or better (except for workers' compensation provided through the California State Compensation Fund).
e. Certificate of Insurance. Vendor shall complete and file with the City prior to engaging in any operation or activity set forth in this Agreement, certificates of insurance evidencing coverage as set forth above and which shall provide that no cancellation or expiration by the insurance company will be made during the term of this Agreement, without thirty (30) days written notice to City prior to the effective date of such cancellation—including cancellation for nonpayment of premium.
f. Notwithstanding any language in this Agreement to the contrary, Vendor shall be entitled to be paid pursuant to the terms of this Agreement until Vendor has obtained the insurance required by this Section 10 and provided documentation of said insurance to the City. In addition to any other remedies City X: Agreements\Public Works\2022\Supply and Services Agreement - Trojan FY 22-23.docx 6 may have, City reserves the right to withhold payment if Vendor's insurance policies are not current.
13. PREVAILING WAGES.
A. Labor Code Compliance. If the work performed under this Agreement falls within Labor Code Section 1720(a)(1) definition of a "public works" the Vendor agrees to comply with all of the applicable provisions of the Labor Code including, those provisions requiring the payment of not less than the general prevailing rate of wages. The Vendor further agrees to the penalties and forfeitures provided in said Code in the event a violation of any of the provisions occurs in the execution of this Agreement.
B. These wage rate determinations are made a specific part of this Agreement by reference pursuant to Labor Code Section 1773.2. General Prevailing Wage Rate Determinations may be obtained from the Department of Industrial Relations Internet site at http://www.dir.ca.gov/.
C. After award of the Agreement, and prior to commencing work, all applicable General Prevailing Wage Rate Determinations, if applicable, are to be obtained by the Vendor from the Department of Industrial Relations. Theses wage rate determinations are to be posted by the Vendor at the job site in accordance with Section 1773.2 of the California Labor Code.
D. Vendor agrees to include prevailing wage requirements, if applicable, in all subcontracts when the work to be performed by the subcontractor under this Agreement is a "public works" as defined in Labor Code Section 1720(a)(1) and Labor Code Section 1771.
14. ASSIGNABILITY OF AGREEMENT. It is understood and agreed that this Agreement contemplates personal performance by the Vendor and is based upon a determination of its unique personal competence and experience and upon its specialized personal knowledge. Assignments of any or all rights, duties or obligations of the Vendor under this Agreement will be permitted only with the express written consent of the City.
15. TERMINATION FOR CONVENIENCE OF CITY. The City may
terminate this Agreement any time by mailing a notice in writing to Vendor that the Agreement is terminated. Said Agreement shall then be deemed terminated, and no further work shall be performed by Vendor. If the Agreement is so X: lAgreements\Public Works\2022\Supply and Services Agreement - Trojan FY 22-23.docx 7 terminated, the Vendor shall be paid for those supplies and services previously delivered to the City at the time the notice of termination is received.
16. CONFORMANCE TO APPLICABLE LAWS. Vendor shall comply with its standard of care regarding all applicable Federal, State, and municipal laws, rules and ordinances. No discrimination shall be made by Vendor in the employment of persons to work under this contract because of race, color, national origin, ancestry, disability, sex or religion of such person.
Vendor hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act (8 U.S.C.A. 1101 et seq.), as amended; and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Vendor so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any agency or instrumentality of the federal or state government, including the courts, impose sanctions against the City for such use of unauthorized aliens, Vendor hereby agrees to, and shall, reimburse City for the cost of all such sanctions imposed, together with any and all costs, including attorneys' fees, incurred by the City in connection therewith.
17. WAIVER. In the event that either City or Vendor shall at any time or times waive any breach of this Agreement by the other, such waiver shall not constitute a waiver of any other or succeeding breach of this Agreement, whether of the same or any other covenant, condition or obligation. Waiver shall not be deemed effective until and unless signed by the waiving party.
18. INCONSISTENT OR CONFLICTING TERMS IN AGREEMENT
AND EXHIBITS. In the event of any contradiction or inconsistency between any attached documents) or exhibit(s) incorporated by reference herein and the provisions of the Agreement itself, the terms of the Agreement shall control.
Any exhibit that is attached and incorporated by reference shall be limited to the purposes for which it is attached, as specified in this Agreement. Any contractual terms or conditions contained in such exhibit imposing additional obligations on the City are not binding upon the City unless specifically agreed to in writing, and initialed by the authorized City representative, as to each additional contractual term or condition.
19. AMBIGUITIES. This Agreement has been negotiated at arms' length between persons knowledgeable in the matters dealt with herein. Accordingly, any X: Agreements Public Works\2022\Supply and Services Agreement - Trojan FY 22-23 docx 8 rule of law, including, but not limited to, Section 1654 of the Civil Code of California, or any other statutes, legal decisions, or common-law principles of similar effect, that would require interpretation of any ambiguities in this Agreement against the party that drafted this Agreement is of no application and is hereby expressly waived
20. INTELLECTUAL PROPERTY; INFORMATION TECHNOLOGY;
PRIVACY. Vendor retains all rights in and to any intellectual property and confidential information created or procured by it or its representatives at any time, and City receives licenses to use such intellectual property and information only to the extent provided by implied license under applicable law. No City information technology requirements apply, except to the extent such requirements specifically apply to equipment being sold to City. Unless otherwise required by law, the City will not disclose or share any of Vendor's or its employees' personal data or personally identifiable information. Nothing within the Section shall prohibit City from disclosing information as required by law, including the California Public Records Act (Gov. Code § 6250, et seq.).
21. VENUE. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this agreement shall be held exclusively in a state court in the County of Merced.
22. AMENDMENT. This Agreement shall not be amended, modified, or otherwise changed unless in writing and signed by both parties hereto.
23. INTEGRATION. This Agreement constitutes the entire
understanding and agreement of the parties and supersedes all previous and/or contemporaneous understanding or agreement between the parties with respect to all or any part of the subject matter hereof.
24. AUTHORITY TO EXECUTE. The person or persons executing this Agreement on behalf of the parties hereto warrants and represents that he/she/they has/have the authority to execute this Agreement on behalf of their entity and has/have the authority to bind their party to the performance of its obligations hereunder.
25. COUNTERPARTS. This Agreement may be executed in one or more counterparts with each counterpart being deemed an original. No counterpart shall be deemed to be an original or presumed delivered unless and until the counterparts executed by the other parties hereto are in the physical possession of the party or parties seeking enforcement thereof.
X: Agreements\Public Works\2022\Supply and Services Agreement - Trojan FY 22-23.docx 9 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first above written.
CITY OF MERCED
A California Charter Municipal
Corporation
BY:_
City Manager
ATTEST:
STEPHANIE R. DIETZ, CITY CLERK
BY:
Assistant/Deputy City Clerk
APPROVED AS TO FORM:
BY: 8/15/2022
City Attorney Date
ACCOUNT DATA:
BY:
Verified by Finance Officer
{Signatures continued on next page}
X:lAgreements\Public Worksl2022\Supply and Services Agreement - Trojan FY 22-23.docx 10 VENDOR
TROJAN TECHNOLOGIES GROUP
ULC, A British Columbia Corporation
BY:
(Signature)
Todd Bartlett
(Typed Name)
Its:_ Director, Service Sales
(Title)
BY:
(Signature)
(Typed Name)
Its:
(Title)
Taxpayer I.D. No. 98-1343341
ADDRESS: 3020 Gore Road
London, ON Canada
NSV477
TELEPHONE: (519) 457-3400
FAX: (519) 457-3030
E-MAIL:
[email protected]
X:\Agreements\Public Worksl2022\Supply and Services Agreement - Trojan FY 22-23.docx 11