City of Sacramento
City Council - 5PM Report
915 I Street Sacramento, CA 95814
www.cityofsacramento.org
File ID: 2024-01912 12/3/2024 Consent Item 18.
Agreement: Electric Motor Repairs and Services [Published for 10-day Review on 11/21/2024] File ID: 2024-01912
Location: Citywide
Recommendation: Pass a Motion authorizing the City Manager or the City Manager's designee to execute Non-Professional Services Agreements with All Electric Motors, Dahl-Beck Electric Company, Herold & Mielenz, Inc., Koffler Electrical Mechanical Apparatus Repair, Inc., and Modesto Electrical Company for On-Call Electric Motor Repairs and Service, for a one-year term, with the option to extend for four additional one-year terms, not to exceed five years for an amount not-toexceed amount of $3,000,000 per vendor; with a total not-to-exceed amount of $15,000,000.
Contact: Deanne Neighbours, Logistics Manager, (916) 808-3536, [email protected]; Ray Wilderman, Utilities Operations and Maintenance Superintendent, (916) 808-6955, [email protected]; Charley Cunningham, Utilities Operations and Maintenance Manager, (916) 808-5518, [email protected]; Pravani Vandeyar, Director, (916) 808-3765, [email protected]; Department of Utilities
Presenter: None
Attachments:
1-Description/Analysis
2-Agreement_Herold & Mielenz Inc.
3-Agreement_All Electric Motors Inc.
4-Modesto Industrial Electric Co. Inc.
5-Agreement_Dahl-Beck Electric
6-Agreement_Koffler Electrical Mechanical Apparatus Repair Inc.
Description/Analysis
Issue Detail: The City of Sacramento has an ongoing need for On-Call Electric Motor Repairs and Service at Department of Utilities (DOU) critical facilities.
DOU requires vendors with various specialties to service the large variety of motor sizes and types utilized at facilities throughout the City. For instance, All Electric provides specialty in valve actuators
File ID: 2024-01912 12/3/2024 Consent Item 18.
and large high horsepower motors, Herold and Mielenz specializes in submersible and lower horsepower motors up to 600 volts, Modesto Industrial Electric specializes in higher horsepower and medium voltage motors, and Koffler specializes in synchronous motors and higher horsepower and medium voltage motors. To provide operational flexibility and support the variety needs at facilities throughout the City, DOU is proposing to award non-professional services agreements to five on-call vendors for electric motor repairs and services, for a one-year term, with the option to extend for four additional one-year terms, not to exceed five years for an amount not-to-exceed amount of $3,000,000 per vendor; with a total not-to-exceed amount of $15,000,000.
Policy Considerations: In conformance with City Code section 3.56.090, City Council approval is required to execute non-professional service agreements if the amount expended under the agreement is $250,000 or more. City Council may approve an alternative procurement process pursuant to City Code section 3.56.230.
Pursuant to the Non-Professional Services Procurement Policy AP4101, Section.1 (c)(1), when oncall services contracts are used, the amount of the procurement is the cumulative amount of the oncall services contracts if multiple on-call services contracts are being used for the same scope of services. DOU was previously approved to suspend competitive bidding for the purpose of an RFQ and is now requesting to suspend competitive bidding as allowed pursuant to Section.2.(1) which is allowed, if after advertising for bids as required, no valid bids are received. A different procurement method may be used, provided the use of such method is approved by the City Council consistent with applicable provisions of the City Code. Pursuant to Section.2.(2)(ii), DOU has entered into competitive negotiations with all proposers to obtain the lowest prices available for these services.
The Sacramento City Code Section 4.04.020 and the City Council Rules of Procedure (Chapter 7, Section E.2.d) mandate that unless waived by a 2/3 vote of the City Council, all labor agreements, and all agreements greater than $1,000,000 shall be made available to the public at least ten (10) days prior to City Council action. This item was published for 10-day review on November 21, 2024, in compliance with the City Code.
Economic Impacts: None.
Environmental Considerations: The activity described in this report has been determined to not be a project pursuant to the California Environmental Quality Act (CEQA). CEQA Guidelines Section 15378(b). The activity is a continuing administrative or maintenance activity, such as the purchases of supplies or personnel related actions and will not result in direct or indirect physical changes in the environment [CEQA Guidelines section 15378 (b)] and is not subject to CEQA (CEQA Guidelines Section 15060(c)(3)]. Future maintenance activities that may result as from the approval of this agreement are generally exempt from CEQA pursuant to CEQA Guidelines Section 15301.
Sustainability: The proposed contract is consistent with the 2040 General Plan under policy PFSPage 2 of 4 File ID: 2024-01912 12/3/2024 Consent Item 18.
3.1 as it is related to public facilities and safety, including providing reliable water, wastewater, and stormwater drainage service to the City of Sacramento.
Commission/Committee Action: Not applicable.
Rationale for Recommendation: On May 30, 2023, DOU issued Request for Proposal (RFP) P23141361517 for On-Call Electric Motor Repair Parts and Services. Four proposals were received and subsequently rejected after it was determined they were not responsive to all solicitation requirements. Non-professional services agreements were subsequently executed under the spending authority of the City Manager with the intent to revisit and release another solicitation for these services.
Staff received approval from City Council on June 11,2024, to allow the use of a Request for Qualification (RFQ) process to establish a qualified Contractor list for On-Call Electric Motor Repair Parts and Services. The purpose of the RFQ was to develop a list of qualified on-call Contractors to assist Department of Utilities’ staff in repairing and servicing the wide array of types and sizes of electric motors used in DOU infrastructure throughout the city. After receiving Statements of Qualification (SOQs), staff proposed to enter into contracts with all Contractors deemed qualified.
City Council approved the use of this alternative process with a two-thirds vote.
On August 6, 2024, DOU issued Request for Qualifications (RFQ) Q24141361712 for On-Call Electric Motor Repair Parts & Service. The project was publicly advertised, extensive outreach was conducted including two pre-bid meetings, and five Contractors submitted Statements of Qualification (SOQs). One Contractor was invalidated due to failure to accept addendums as required, and the remaining four Contractors were rejected after it was determined they were not responsive to all solicitation requirements. Competitive bidding requirements do not apply to this solicitation because City Council approved an alternative form of procurement and the City did not receive any valid bids.
Due to the Contractors’ demonstrated lack of capacity to meet the City’s solicitation requirements, DOU is requesting to approve contracts resulting from competitive negotiations with all proposers and award agreements for on-call services up to $3,000,000 each.
Financial Considerations: Funding for the first year of these agreements of approximately $300,000 has been included in the approved Fiscal Year 2024/25 DOU Budget. Funding for future fiscal years shall be subject to funding availability in the adopted budgets for the applicable fiscal year in an amount not to exceed $3,000,000 over the five-year term for each agreement. Purchase orders encumbering funds under this agreement will not be created until needs and funding are identified in the applicable budget (operating, capital, multi-operating, or grants).
There are no impacts to the General Fund for this Agreement.
Local Business Enterprise (LBE): The minimum LBE participation requirement is waived as the
File ID: 2024-01912 12/3/2024 Consent Item 18.
City has suspended competitive bidding and utilized an alternate procurement method to select a supplier.
Form Approved by City Attorney 9-1-2020 Page 1
CONTRACT #: PRC003257
CONTRACT NAME: On-Call Electric Motor Repair Parts & Service CONTRACT PROJECT #: NA DEPARTMENT: Utilities
DIVISION: Engineering & Water Resources
CITY OF SACRAMENTO
GOODS AND NONPROFESSIONAL SERVICES AGREEMENT
THIS CONTRACT is made at Sacramento, California, by and between the CITY OF SACRAMENTO, a charter city and municipal corporation (“CITY”), and
Herold & Mielenz, Inc.
3531 51st Avenue, Sacramento, CA 95823
Phone: (800) 422-7493/E-mail: [email protected] (“Contractor”), as of the Effective Date, as defined below.
The City and Contractor agree as follows:
1. Effective Date. This Contract shall be effective beginning the date it is fully executed by the duly authorized parties.
2. Contract Documents. This Contract includes each of the following documents, which are attached or incorporated by this reference (referred to collectively as the “Contract Documents”):
Invitation to Bid, Request for Qualifications, or Request for Proposals, and any Addenda Exhibit A - Technical Specifications
Exhibit B – Payment
Exhibit C – Insurance
Exhibit D – General Conditions
Purchase Orders
If there is a conflict between the terms and conditions of any document prepared or provided by the Contractor and made a part of this Contract and the other terms or conditions of the Contract, the other terms and conditions of the Contract control.
3. Goods and Services. Subject to the terms and conditions set forth in this Contract, Contractor shall provide to City the goods, materials, equipment or supplies (“Goods”) and the nonprofessional services (“Services”) described in Exhibit A (referred to collectively as “Goods and Services”).
Contractor will not be compensated for goods, materials, equipment, supplies, or nonprofessional services outside the scope of Exhibit A (“Additional Goods and Services”) unless, before providing Additional Goods and Services: (a) Contractor notifies City and City agrees that Form Approved by City Attorney 9-1-2020 Page 2
the Additional Goods and Services are outside the scope of Exhibit A; (b) Contractor estimates the additional compensation required for these Additional Goods and Services; and (c) City, after notice, approves in writing a Supplemental Contract specifying the Additional Goods and Services and the amount of additional compensation to be paid Contractor.
City will have no obligations whatsoever under this Contract or any Supplemental Contract, unless and until this Contract or any Supplemental Contract is approved by the City as required by the Sacramento City Code. As used in this Contract, the term “Goods and Services” includes both Goods and Services and Additional Goods and Services as applicable.
4. Payment. City shall pay Contractor at the times and in the manner set forth in Exhibit B.
Contractor shall submit all invoices to City in the manner specified in Exhibit B.
5. Facilities and Equipment. Except as set forth below, Contractor shall, at its sole cost and expense, furnish all facilities and equipment required for Contractor to perform this Contract. City shall furnish to Contractor only the facilities and equipment listed below, if any.
Access to City facilities will be provided, as needed.
6. Insurance. Contractor shall, at its sole cost and expense, maintain the insurance coverage described in the attached Exhibit C.
7. General Conditions. Contractor shall comply with the terms and conditions set forth in the attached Exhibit D.
8. Non-Discrimination in Employee Benefits. This Contract may be subject to Sacramento City Code chapter 3.54, Non- Discrimination in Employee Benefits by City Contractors. A summary of the requirements, entitled "Requirements of the Non-Discrimination in Employee Benefits Code (Equal Benefits Ordinance),” can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
Contractor acknowledges and represents that Contractor has read and understands the requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.54. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance.
Contractor's violation of Sacramento City Code chapter 3.54 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
9. Living Wage. This Contract may be subject to Sacramento City Code chapter 3.58, Living Wage.
A summary of the requirements, entitled "Living Wage Requirements", can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
The Living Wage Ordinance is applicable to certain contracts with the City in an amount of $250,000 or more (either initial value or total value after amendment) or if the total value of all Contractor's contracts with the City is $250,000 or more over a 12-month period.
Form Approved by City Attorney 9-1-2020 Page 3
Contractor acknowledges and represents that Contractor has read and understands the requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.58. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance.
Contractor shall require applicable subcontractors to fully comply with all applicable requirements of Sacramento City Code chapter 3.58 and include these requirements in all subcontracts covered by Sacramento City Code chapter 3.58.
Contractor's violation of Sacramento City Code chapter 3.58 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
In addition, for Services that constitute "Public Works" under California Labor Code Section 1720 et seq., if both prevailing wage and living wage requirements apply, Contractor shall pay the higher of the two rates.
10. Considering Criminal Conviction Information in the Employment Application Process. This Contract may be subject to the requirements of Sacramento City Code chapter 3.62, Procedures for Considering Criminal Conviction Information in the Employment Application Process. A summary of the requirements, entitled “Ban-The-Box Requirements,” can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
The Ban-The-Box Requirements are applicable to certain contracts with the City in an amount of $250,000 or more (either initial value or total value after amendment) or if the total value of all Contractor's contracts with the City is $250,000 or more over a 12-month period.
Contractor acknowledges and represents that Contractor has read and understands these requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.62. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance. Contractor shall require applicable subcontractors to fully comply with all applicable requirements of Sacramento City Code chapter 3.62 and include these requirements in all subcontracts covered by Sacramento City Code chapter 3.62.
Contractor's violation of Sacramento City Code chapter 3.62 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
11. Local Business Enterprise Program. The Local Business Enterprise Program Participation Requirements ("LBE Participation Requirements") are applicable to this Contract. A summary of the requirements, entitled "LBE Participation Requirements," can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
Form Approved by City Attorney 9-1-2020 Page 4
Contractor acknowledges and represents that Contractor has read and understands these requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.60. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance. Contractor shall require applicable subcontractors to fully comply with all applicable requirements of Sacramento City Code chapter 3.60 and include these requirements in all subcontracts covered by Sacramento City Code chapter 3.60.
Contractor's violation of Sacramento City Code chapter 3.60 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
12. Authority. The person signing this Contract for Contractor represents and warrants that he or she has read, understands, and agrees to all the Contract terms and is fully authorized to sign this Contract on behalf of the Contractor and to bind the Contractor to the performance of the Contract’s obligations.
[Signature Pages Follow Exhibits]
Form Approved by City Attorney 9-1-2020 Exhibit A - Page 1
EXHIBIT A
TECHNICAL SPECIFICATIONS
1. Representatives.
The CITY Representative for this Agreement is:
Ray Wilderman, Superintendent
Department of Utilities
1395 35th Avenue, Sacramento, CA 95822
Phone: (916) 808-8067/E-mail: [email protected] The CONTRACTOR Representative for this Agreement is:
George McDermott
Herold & Mielenz, Inc.
3531 51st Avenue, Sacramento, CA 95823
Phone: (800) 422-7493/E-mail: [email protected] Unless otherwise provided in this Contract, all Contractor questions and correspondence pertaining to this Contract must be addressed to the City Representative. All City questions and correspondence must be addressed to the Contractor Representative.
2. Scope of Services. Contractor shall provide Goods and Services to City as set forth in Attachment 1 to this Exhibit A.
3. Quantities. The quantities stated in Attachment 1 to this Exhibit A or Exhibit B are only estimates of the City's requirements. Contractor shall furnish Goods and Services at the prices quoted, in accordance with the City's available funds and actual needs as they occur throughout the term of this Contract.
The City is not required to purchase all of the Goods and Services listed, or to expend all available funding reflected in Exhibits A or B.
4. Time of Performance. The Goods and Services described in this Contract shall be provided for One Year. The City may extend this Contract for up to Four (4) additional one-year terms, for a maximum five-year term. Contractor shall provide the Goods and Services in accordance with any schedule in Attachment 1 to this Exhibit A.
5. Delivery and Inspection.
A. Delivery. Unless otherwise stated by the City in writing, delivery of Goods shall be made to the City address set forth in Exhibit A. All shipments are Free on Board (F.O.B.) destination with freight prepaid unless otherwise stated.
Form Approved by City Attorney 9-1-2020 Exhibit A - Page 2 Contractor assumes full responsibility for all transportation scheduling and costs, including costs for containers, packing, handling, and insurance. The City reserves the right to request and receive a copy of the freight bill of lading on all purchases shipped F.O.B. prepaid and added.
Time is of the essence in the delivery. If delivery cannot be made as specified in Exhibit A or as otherwise stated by the City, Contractor shall notify the City immediately to request instructions on how to proceed and shall not make delivery before receipt of instructions.
Periods of performance may be extended if, in the sole judgment of the City, the cause of delay justifies an extension.
B. Inspections: Goods will be inspected at the destination before acceptance by an authorized representative of the City for workmanship, appearance, proper functioning of all equipment and systems, and conformance to all other requirements of this Contract. The Goods shall be delivered to City free of any liens or encumbrances.
Notwithstanding the requirements for any City inspection and testing at the destination and except where specialized inspections or testing are specified for performance solely by the City, Contractor shall perform or have performed the inspections or tests required to substantiate that all Goods provided under the Contract conform to the drawings, specifications, and other Contract requirements, including, if applicable, the technical requirements for the manufacturer's part number(s) specified.
C. Deficiencies: If deficiencies in the Goods are discovered, Contractor shall correct and redeliver the Goods for re-inspection and acceptance. The period for payment and/or commencement of discount period (if applicable) does not begin until corrective action is complete. The cost of storing rejected Goods and the cost for shipping rejected Goods back to the Contractor or point of origin shall be paid by Contractor.
D. Inspection of Facilities: If requested by the City, Contractor shall provide the City with an inspection tour of Contractor's facilities where any Goods will be designed, manufactured, or assembled by Contractor.
6. Title/Risk of Loss. Title, ownership, and risk of loss or damage of the Goods remains with the Contractor until the Goods are delivered to, inspected, and accepted by the City, except when the loss or damage is due to the sole negligence of the City.
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 1
EXHIBIT B
PAYMENT
1. Contractor’s Compensation. The total of all fees paid to the Contractor for the provision of Goods and Services as set forth in Exhibit A, including any authorized reimbursable expenses, shall not exceed the total sum of $ 3,000,000. The payments specified in this Exhibit B shall be the only payments made to Contractor unless the City approves a Supplemental Contract.
2. Pricing. Contractor shall be paid as set forth in Exhibit A or Attachment 1 to this Exhibit B and any applicable special provisions included in the request for bids or proposals. If there is a conflict between Exhibit A or Exhibit B and the Special Provisions, Exhibit A or Exhibit B controls.
3. Contractor’s Reimbursable Expenses. “Reimbursable Expenses” are limited to actual expenditures of Contractor for expenses that are necessary for the proper satisfaction of the Contract and are only payable if specifically authorized in advance in writing by the City.
4. Miscellaneous Charges. No additional charges will be allowed unless specified in the Contract, including charges for transportation, fuel, containers, packing, or disposal.
5. Price Adjustments for Goods. Unless otherwise stated, prices are maximum for the term of the Contract. Price adjustments, if allowed under this Contract, must be requested in writing and accompanied by the required information to substantiate the request for price adjustment, as set forth in the Contract. Any allowable request for price adjustment must be delivered to the City at least 30 days before the adjusted prices become effective. No price adjustment allowable under this Contract will be granted retroactively. The City must also be given the benefit of any decline in prices. If any price increase is granted by the City, the increase shall not be greater than 3% from the prior year.
6. Purchase Orders. Unless otherwise stated, a purchase order will be issued to the Contractor on behalf of the City. Purchase orders will cite the quantity of Goods or Services requested, the purchase amount, and time of performance. If the time of performance of this Contract extends beyond the close of the City's fiscal year, another purchase order may be issued. No purchase order supersedes any provision of this Contract. Contractor shall not deliver Goods or provide Services until Contractor receives a purchase order or other written notification by the City.
7. Payments to Contractor. Contractor is responsible for supplying all documentation necessary to verify invoices to the City’s satisfaction.
A. Payment terms are NET 30 days, unless the Contractor offers a prompt payment discount that was accepted by the City or as otherwise stated in this Contract. Any prompt payment discounts will be computed from the date of acceptance by the City, or from the date an invoice is received, whichever occurs later.
B. Invoices must be submitted to either of the addresses specified below. (1) Email. Submit email invoices and any attachments to:
[email protected]
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 2 (2) Postal Mail. If emailing is not an option, mail to:
A/P Processing Center
City of Sacramento
915 I Street, Floor 4
Sacramento, CA 95814-2608
C. All invoices submitted by CONTRACTOR must contain the following information:
(1) Job/Project Name
(2) CITY’s current Purchase Order Number
(3) Contractor’s Invoice Number
(4) Date of Invoice Issuance
(5) Work Order Number (if applicable)
(6) CITY representative identified on the Purchase Order (7) Contractor’s remit address
(8) Itemized description of items billed under Invoice
(9) Itemized description of all authorized Reimbursable Expenses (10) Itemized description of all applicable taxes (sales, use, excise, etc.) (11) Amount of Invoice (itemize all authorized Reimbursable Expenses) (12) Total Billed to Date under Contract (if applicable) D. Items must be separated into Goods, Services, and Reimbursable Expenses. All applicable sales, use, excise, or similar taxes, including federal excise tax, must be itemized separately on the invoice. Invoices that do not conform to the format outlined above will be returned to Contractor for correction. City is not responsible for delays in payment to Contractor resulting from Contractor’s failure to comply with the invoice format described above.
E. For Goods only, a bill of lading number and weight of shipment will be shown for shipments on the Government Bill of Lading.
F. Unless otherwise specified in this Contract, partial payments will not be made by the City and payment will not be due until the completion of the Goods order. No payment precludes the City’s right to inspect. Requests for payment status should be addressed to the City Representative for this Contract.
8. Additional Goods and Services. Additional Goods and Services shall be provided only when a Supplemental Contract authorizing the Additional Goods and Services is approved in writing by the City in accordance with the City’s contract amendment procedures. The City reserves the right to perform any Additional Services with its own staff or to retain other contractors to perform the Additional Services.
9. Billing Disputes. The burden of proof shall be on the Contractor to establish the accuracy of its invoices. Upon presentation and verification of the information provided by Contractor, the City will review all records and make a final determination and present its finding to Contractor.
10. Accounting Records of Contractor. During performance of this Contract and for a period of three Form Approved by City Attorney 9-1-2020 Exhibit B - Page 3 years after completion of performance, Contractor shall maintain all accounting and financial records related to this Contract, in accordance with generally accepted accounting practices, including records of Contractor’s costs for performance under this Contract and records of Contractor’s Reimbursable Expenses. Contractor shall keep and make records available for inspection and audit by representatives of the City upon reasonable written notice.
11. Sales Tax Requirements. The City is not exempt from paying sales tax. Sales tax must be shown on the invoice as a separate line item.
12. Use Tax Requirements. On out-of-state purchases, Contractor shall list its Use Tax Permit Number (if applicable) on the invoice, which authorizes Contractor to charge and collect California Sales Tax. The Purchase Order will include sales tax, if applicable to the purchase, regardless of whether an out-of-state Contractor collects California State sales tax or not.
The City shall pay Use Tax directly to the California Department of Tax and Fee Administration ("CDTFA") if the out-of-state Contractor is not required to collect California Sales Tax. During the performance of this Contract, Contractor, for itself, its assignees and successors in interest, agrees as follows:
A. Use Tax Direct Payment Permit: For all leases and purchases of tangible personal property used to perform the Contract and shipped from outside California, Contractor and any subcontractor(s) leasing or purchasing such tangible personal property shall obtain a Use Tax Direct Payment Permit from the CDTFA in accordance with the applicable CDTFA criteria and requirements.
B. Sellers Permit: For any construction contract and any construction subcontract in the amount of $5,000,000 or more, Contractor and the subcontractor(s) shall obtain sellers permits from the CDTFA and shall register the jobsite as the place of business for the purpose of allocating local sales and use tax to the City. Contractor and its subcontractors shall remit the self-accrued use tax to the CDTFA and shall provide a copy of each remittance to the City.
C. The above provisions apply in all instances unless prohibited by the funding source for the Contract.
13. Excise Tax Requirements. The City of Sacramento is exempt from the payment of Federal Excise Tax. An exemption certificate will be submitted to Contractor upon request. If Federal Excise Tax is applicable to the transaction, it must be so stated and excluded from the price.
14. Tax Payments. Contractor shall pay, when and as due, any and all taxes incurred as a result of Contractor’s compensation hereunder, including estimated taxes, and shall provide CITY with proof of the payment upon request. Contractor hereby agrees to indemnify CITY for any claims, losses, costs, fees, liabilities, damages or injuries suffered by CITY arising out of Contractor’s breach of this section.
15. Public Works Requirements. [To be completed by the City Representative:] The services provided under this Contract include [check one if applicable]:
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 4 ________ Construction work in an amount exceeding $25,000; ________ Land Surveying, material testing, or inspection services provided for a City construction project during the design, pre-construction, construction, or post-construction phases of the project; or
________ Alteration, demolition, repair, or maintenance work in an amount exceeding $15,000.
If any of the lines is checked above, this Contract includes “Public Work” under the California Labor Code and is subject to the following requirements:
A. Payment of Prevailing Wages: Contractor and any subcontractor(s) performing any Public Work shall comply with the provisions of Sacramento City Code section 3.60.180 and applicable provisions of the California Labor Code, which require, among other things, that Contractor and all subcontractors pay not less than the prevailing rate of wages, as determined by the Director of the California Department of Industrial Relations (“DIR”) in accordance with California Labor Code section 1773. Contractor and every subcontractor shall maintain payroll records and submit certified payrolls and other labor compliance documentation electronically when and as required by CITY. In addition, Labor Code Section 1771.4 requires the Contractor and any subcontractor performing any Public Work to furnish electronic payroll records directly to the Labor Commissioner. Contractor shall include these requirements in every subcontract.
This Agreement is subject to compliance monitoring and enforcement by the DIR, as specified in California Labor Code section 1771.4. The Contractor and any subcontractor will be subject to withholding and penalties for violation of prevailing wage requirements in accordance with applicable law, including Labor Code Sections 1726, 1741, 1771.5, and 1775, and City Code Section 3.60.180. Questions regarding the City’s Labor Compliance Program should be directed to the City Representative.
B. DIR Registration: California Labor Code Section 1725.5 requires the Contractor and all subcontractors performing Public Works services to be currently registered with the DIR, as specified in California Labor Code Section 1725.5. California Labor Code Section 1771.1 provides that a contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal (subject to the requirements of Section 4104 of the California Public Contract Code), or engage in the performance of any contract for Public Work, unless currently registered and qualified to perform Public Work in accordance with California Labor Code Section 1725.5.
Further information can be found on DIR’s website at http://www.dir.ca.gov/PublicWorks/Contractors.html. The above summary is provided solely for informational purposes and does not in any way affect the Contractor’s and subcontractors’ obligation to comply in all respects with all other applicable laws and regulations. The Contractor shall disseminate these provisions to all subcontractors.
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 5 Before the performance of work by Contractor or any subcontractor(s) under this Contract, Contractor shall furnish Contractor’s and any subcontractors’ current DIR registration number(s). The Contractor’s current DIR registration number and the current DIR registration number of all subcontractors will be listed on the Subcontractor and LBE Participation Verification Form, incorporated herein.
C. Workers’ Compensation Certification. In accordance with California Labor Code Section 1861, by signing this Contract, Contractor acknowledges and represents that Contractor is aware of the provisions of section 3700 of the California Labor Code which requires every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and that Contractor will comply with the provisions of the Labor Code before commencing performance under this Contract.
D. Apprentices. If this Contract is for the performance of any Public Work, and the amount of the Contract is $30,000 or more, the Contractor and any subcontractors performing any Public Work under this Contract must comply with and be subject to enforcement under, the provisions of Sacramento City Code Section 3.60.190, Section 1777.5 et seq. of the California Labor Code, and implementing regulations set forth in Title 8 of the California Code of Regulations, governing the employment of apprentices. The Contractor and any subcontractors performing Public Work will be subject to penalties for apprenticeship violations in accordance with Labor Code Section 1777.7.
E. Working Hours. If this Contract is for the performance of any Public Work, Contractor and any subcontractors performing any Public Work under this Contract must comply with and be subject to enforcement under, the provisions of Sacramento City Code Section 3.60.180 and California Labor Code Section 1810 et seq., governing the working hours of employees performing Public Work.
F. Failure to Comply with Labor Compliance. If all applicable labor compliance requirements are not met, the City will have the right to withhold or reject a payment request and/or invoice, in whole or in part, without in any way relieving Contractor or its subcontractors of any obligations under this Contract.
G. Subcontractors. The Contractor shall include these provisions A through F in every subcontract or sub-agreement for any subcontractors performing work under this Contract.
Form Approved by City Attorney 9-1-2020 Exhibit C - Page 1
EXHIBIT C
INSURANCE
1. Insurance Requirements. During the entire term of this Contract, Contractor shall maintain the insurance coverage described in the Insurance Terms below. Full compensation for all premiums that Contractor is required to pay for the insurance coverage described herein shall be included in the compensation specified under this Contract. No additional compensation will be provided for Contractor's insurance premiums. Any available insurance proceeds in excess of the specified minimum limits and coverages shall be available to the City.
Contractor's liability to the City is not in any way limited to or affected by the amount of insurance coverage required or carried by the Contractor in connection with this Contract.
2. General Liability Minimum Scope and Limits of Insurance Coverage. Commercial General Liability Insurance is required providing coverage at least as broad as ISO CGL Form 00 01 on an occurrence basis for bodily injury, including death, of one or more persons, property damage, and personal injury, arising out of activities performed by or on behalf of the Contractor and subcontractors, products and completed operations of Contractor and subcontractors, and premises owned, leased, or used by Contractor and subcontractors, with limits of not less than one million dollars ($1,000,000) per occurrence. The policy shall provide contractual liability and products and completed operations coverage for the term of the policy.
The City, its officials, employees and volunteers shall be covered by policy terms or endorsement as additional insureds as respects general liability arising out of: activities performed by or on behalf of Contractor and subcontractors; products and completed operations of Contractor and subcontractors; and premises owned, leased, or used by Contractor and subcontractors.
3. Automobile Liability Minimum Scope and Limits of Insurance Coverage. (Check the applicable provision.)
_X_ Automobile Liability Insurance is required providing coverage at least as broad as ISO Form CA 00 01 for bodily injury, including death, of one or more persons, property damage and personal injury, with limits of not less than one million dollars ($1,000,000) per occurrence. The policy shall provide coverage for owned, non-owned and/or hired autos as appropriate to the operations of the Contractor.
The City, its officials, employees and volunteers shall be covered by policy terms or endorsement as additional insureds as respects auto liability. ___ No automobile liability insurance is required, and by signing this Contract, Contractor certifies as follows:
“Contractor certifies that a motor vehicle will not be used in the performance of any work or services under this agreement. If, however, Contractor does transport items under this Contract, or this Contract is amended to require any employees of Contractor to use a Form Approved by City Attorney 9-1-2020 Exhibit C - Page 2 vehicle to perform services under the Contract, Contractor understands that it must maintain and provide evidence of Automobile Liability Insurance providing coverage at least as broad as ISO Form CA 00 01 for bodily injury, including death, of one or more persons, property damage and personal injury, with limits of not less than one million dollars ($1,000,000) per occurrence. The policy shall provide coverage for owned, nonowned and/or hired autos as appropriate to the operations of the Contractor.”
4. Excess Insurance. The minimum limits of insurance required above may be satisfied by a combination of primary and umbrella or excess insurance coverage, provided that any umbrella or excess insurance contains, or is endorsed to contain, a provision that it will apply on a primary basis for the benefit of the City, and any insurance or self-insurance maintained by City, its officials, employees, or volunteers will be in excess of Contractor's umbrella or excess coverage and will not contribute to it.
5. Workers’ Compensation Minimum Scope and Limits of Insurance Coverage. (Check the applicable provision.)
_X_ Workers’ Compensation Insurance is required with statutory limits and Employers' Liability Insurance with limits of not less than one million dollars ($1,000,000). The Workers' Compensation policy shall include a waiver of subrogation in favor of the City.
___ No work or services will be performed on or at CITY facilities or CITY Property, therefore a Workers’ Compensation waiver of subrogation in favor of the CITY is not required. ___ No Workers’ Compensation insurance is required, and by signing this Contract, Contractor certifies as follows:
“Contractor certifies that its business has no employees, and that it does not employ anyone, and is therefore exempt from the legal requirements to provide Workers' Compensation insurance. If, however, Contractor hires any employee during the term of this Contract, Contractor understands that Workers’ Compensation with statutory limits and Employer’s Liability Insurance with a limit of not less than one million dollars ($1,000,000) is required. The Workers’ Compensation policy will include a waiver of subrogation in favor of the City.”
6. Other Insurance Provisions. The policies must contain, or be endorsed to contain, the following provisions:
A. Contractor's insurance coverage, including excess insurance, shall be primary insurance as respects the City, its officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officials, employees or volunteers will be in excess of Contractor's insurance and will not contribute with it.
B. Any failure to comply with reporting provisions of the policies will not affect coverage provided to the City, its officials, employees or volunteers.
C. Coverage shall state that Contractor's insurance applies separately to each insured Form Approved by City Attorney 9-1-2020 Exhibit C - Page 3 against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
D. Contractor shall provide the City with 30 days written notice of cancellation or material change in the policy language or terms.
7. Acceptability of Insurance. Insurance must be placed with insurers with a Bests' rating of not less than A:VI. Self-insured retentions, policy terms or other variations that do not comply with the requirements of this Exhibit C must be declared to and approved by the City in writing before execution of this Contract.
8. Verification of Coverage.
A. Contractor shall furnish City with certificates and required endorsements evidencing the insurance required. Certificates of insurance must be signed by an authorized representative of the insurance carrier. Copies of policies shall be delivered to the City Representative on demand.
B. Contractor shall send all insurance certificates and endorsements, including policy renewals, during the term of this Contract directly to:
City of Sacramento
c/o Exigis LLC
PO Box 947
Murrieta, CA 92564
C. Certificate Holder must be listed as:
City of Sacramento
c/o Exigis LLC
PO Box 947
Murrieta, CA 92564
D. The City may withdraw its offer of Contract or cancel this Contract if the certificates of insurance and endorsements required have not been provided before execution of this Contract. The City may withhold payments to Contractor and/or cancel the Contract if the insurance is canceled or Contractor otherwise ceases to be insured as required herein.
9. Subcontractor Insurance Coverage. Contractor shall require and verify that all subcontractors maintain insurance coverage that meets the minimum scope and limits of insurance coverage specified in this Exhibit C.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 1
EXHIBIT D
GENERAL CONDITIONS
1. Independent Contractor. A. It is understood and agreed that Contractor (including Contractor’s employees) is an independent contractor and that no relationship of employer-employee exists between the parties hereto for any purpose whatsoever. Neither Contractor nor Contractor’s assigned personnel will be entitled to any benefits payable to CITY employees. CITY is not required to make any deductions or withholdings from the compensation payable to Contractor under the provisions of this Contract, and Contractor will be issued a Form 1099 for its services hereunder. As an independent contractor, Contractor hereby agrees to indemnify and hold CITY harmless from any and all claims that may be made against CITY based upon any contention by any of Contractor’s employees or by any third party, including any state or federal agency, that an employer-employee relationship or a substitute therefor exists for any purpose whatsoever by reason of this Contract or by reason of the nature and/or performance under this Contract.
B. It is further understood and agreed by the parties that Contractor, in the performance of its obligations, is subject to the City’s control and direction as to the designation of tasks to be performed and the results to be accomplished under this Contract, but not as to the means, methods, or sequence used by Contractor for accomplishing the results. To the extent that Contractor obtains permission to, and does, use CITY facilities, space, equipment or support services in the performance of this Contract, this use will be at the Contractor’s sole discretion based on the Contractor’s determination that the use will promote Contractor’s efficiency and effectiveness. Except as may be specifically provided elsewhere in this Contract, the CITY does not require that Contractor use CITY facilities, equipment or support services or work in CITY locations in the performance of this Contract. As used in this Contract, "sole discretion" or "sole judgment" means that the party authorized to exercise its discretion or judgment may do so based on an unfettered assessment of its own interests, without considering how its decision affects the other party, and unconstrained by the implied covenant of good faith and fair dealing.
C. If, in the performance of this Contract, any third persons are employed by Contractor, such persons will be entirely and exclusively under the direction, supervision, and control of Contractor. Except as otherwise provided in this Contract, all terms of employment, including hours, wages, working conditions, discipline, hiring, and discharging, or any other terms of employment or requirements of law, shall be determined by Contractor.
It is further understood and agreed that Contractor will issue W-2 or 1099 Forms for income and employment tax purposes for all Contractor’s assigned personnel and subcontractors.
D. The provisions of this section will survive any expiration or termination of this Contract.
Nothing in this Contract creates an exclusive relationship between CITY and Contractor.
Contractor may represent, perform services for, or be employed by any additional persons or companies so long as Contractor does not violate the provisions of Section 5, below.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 2
2. Licenses; Permits, Etc. Contractor represents and warrants that Contractor has, and shall maintain at all times during the term of this Contract at its sole cost and expense, all licenses, permits, qualifications, and approvals of any nature that are legally required for Contractor to practice its profession or fulfill the terms of this Contract, including a City Business Operations Tax Certificate and any required certification issued by the California Secretary of State.
3. Time. Time is off the essence in the performance of this Contract. Contractor shall devote the necessary time and effort to its performance under this Contract. Neither party will be considered in default of this Contract, to the extent that party’s performance is prevented or delayed by any cause, present or future, that is beyond the reasonable control of that party.
4. Contractor Not Agent. Except as City may specify in writing, Contractor and Contractor’s personnel have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor and Contractor’s personnel shall have no authority, express or implied, to bind City to any obligations whatsoever.
5. Conflicts of Interest. Contractor covenants that neither it, nor any officer or principal of its firm, has or will acquire any interest, directly or indirectly, that would conflict in any manner with the City’s interests or that would in any way hinder Contractor’s performance under this Contract.
Contractor further covenants that in the performance of this Contract, no person having any such interest will be employed by it as an officer, employee, agent or subcontractor, without the City’s written consent.
Contractor agrees to avoid conflicts of interest or the appearance of any conflicts of interest with the City’s interests during the performance of this Contract. If Contractor is or employs a former officer or employee of the City, Contractor and any former City officer or employee shall comply with the provisions of Sacramento City Code Section 2.16.090 pertaining to appearances before the City Council or any City department, board, commission, or committee.
6. Hazardous Substances. "Hazardous Substances" means any substance, material, waste, or other pollutant or contaminant that is or becomes designated, classified, or regulated as hazardous or toxic under any law, regulation, rule, order, decree, or other governmental requirement now in effect or later enacted. If Contractor is shipping Hazardous Substances, Contractor must supply a Safety Data Sheet ("SDS") with the first shipment of Hazardous Substances to each City location receiving the Hazardous Substances. If the content of an SDS is revised, Contractor must provide a revised SDS to each City location receiving Hazardous Substances.
7. Confidentiality of City Information. During performance of this Contract, Contractor may gain access to and use City information regarding inventions, machinery, products, prices, apparatus, costs, discounts, future plans, business affairs, governmental affairs, processes, trade secrets, technical matters, systems, facilities, customer lists, product design, copyright, data, and other vital information (hereafter collectively referred to as “City Information”) that are valuable, special and unique assets of the City.
Contractor agrees to protect all City Information and treat it as strictly confidential, and further agrees that Contractor shall not at any time, either directly or indirectly, divulge, disclose or Form Approved by City Attorney 9-1-2020 Exhibit D - Page 3 communicate in any manner any City Information to any third party without the City’s prior written consent.
In addition, Contractor must comply with all City policies governing the use of the CITY network and technology systems, as set forth in applicable provisions of the City of Sacramento Administrative Policy Instructions # 30. A violation by Contractor of this section is a material violation of this Contract and shall justify legal and equitable relief.
8. Contractor Information.
A. City shall have full ownership and control, including ownership of any copyrights, of all information prepared, produced, or provided by Contractor under this Contract. In this Contract, the term “information” means and includes: any and all work product, submittals, reports, plans, specifications, and other deliverables consisting of documents, writings, handwritings, typewriting, printing, photostatting, photographing, computer models, and any other computerized data and every other means of recording any form of information, communications, or representation, including letters, works, pictures, drawings, sounds, or symbols, or any combination thereof. Contractor shall not be responsible for any unauthorized modification or use of such information for other than its intended purpose by City.
B. Contractor shall fully defend, indemnify and hold harmless City, its officers and employees, and each of them, from and against any and all claims, actions, lawsuits or other proceedings alleging that all or any part of the information prepared, produced, or provided by Contractor under this Contract infringes upon any third party’s trademark, trade name, copyright, patent or other intellectual property rights. City shall make reasonable efforts to notify Contractor not later than ten days after City is served with any such claim, action, lawsuit or other proceeding. However, City’s failure to provide notice within the ten-day period does not relieve Contractor of its obligations hereunder, which survive any termination or expiration of this Contract.
C. All proprietary and other information received from Contractor by City, whether received in connection with Contractor’s proposal to City or in connection with Contractor’s performance, will be disclosed upon receipt of a request for disclosure, in accordance with the California Public Records Act; provided, however, that, if any information is set apart and clearly marked “trade secret” when it is provided to City, City shall give notice to Contractor of any request for the disclosure of such information. The Contractor will then have five days from the date it receives notice to petition the court for a protective order to prevent the disclosure of the information. The Contractor shall have sole responsibility for defense of the actual “trade secret” designation of such information.
D. The parties understand and agree that any failure by Contractor to respond to the notice provided by City and seek a protective order, in accordance with the provisions of subsection C, above, constitutes a complete waiver by Contractor of any rights regarding the information designated “trade secret” by Contractor, and the information will be disclosed by City in accordance with the Public Records Act.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 4
9. Notification of Material Changes in Business. Contractor agrees that if it experiences any material changes in its business, including a reorganization, refinancing, restructuring, leveraged buyout, bankruptcy, name change, or loss of key personnel, it will immediately notify the City of the changes. Contractor also agrees to immediately notify the City of any condition that may jeopardize the scheduled delivery or fulfillment of Contractor's obligations to the City under this Contract.
10. Standard of Performance. Contractor shall perform in the manner and according to the standards currently observed by a competent practitioner of Contractor’s profession in California and in compliance with all requirements of this Contract. All products that Contractor delivers to City under this Contract must be prepared in a professional manner and conform to the standards of quality normally observed by a person currently practicing in Contractor’s profession.
Contractor shall assign only competent personnel to perform on its behalf under this Contract.
Contractor must notify the City in writing of any changes in Contractor’s staff assigned to perform under this Contract, before any performance by the new staff member. If the City, in its sole discretion, determines that any person assigned by the Contractor to perform under this Contract is not performing in accordance with the standards required herein, City shall provide notice to Contractor. Contractor shall immediately remove the assigned person upon receipt of the notice.
11. Performance or Different Terms and Conditions. The City's subsequent performance will not be construed as either acceptance of additional or different terms and conditions or a counteroffer by the Contractor, nor will the City's subsequent performance be viewed as acceptance of any provision of the Uniform Commercial Code, as adopted by any State, that is contrary to the terms and conditions contained herein. Contractor's performance shall conform to the applicable requirements of the Sacramento City Charter, Sacramento City Code, and all applicable State and Federal laws, and all the requirements of this Contract. The California Commercial Code will apply except as otherwise provided in the Contract.
12. Emergency/Declared Disaster Requirements. If an emergency is declared by the City Manager, or if any portion of the City is declared a disaster area by the county, state or federal government, this Contract may be subjected to increased usage. The Contractor shall serve the City during a declared emergency or disaster, subject to the same terms and conditions that apply during nonemergency / non-disaster conditions. The pricing set forth in this Contract will apply, without mark-up, regardless of the circumstances. If the Contractor is unable to fulfill the terms of the Contract because of a disruption in its chain of supply or service, then the Contractor shall provide proof of the disruption. Acceptable forms of proof will include a letter or notice from the Contractor's source stating the reason for the disruption
13. Term; Suspension; Termination.
A. This Contract is effective on the Effective Date and continues in effect until both parties have fully performed their respective obligations under this Contract, unless sooner terminated as provided herein.
B. City shall have the right at any time to suspend Contractor’s performance hereunder, in whole or in part, by giving a written notice of suspension to Contractor. Upon receipt of Form Approved by City Attorney 9-1-2020 Exhibit D - Page 5 such notice, Contractor shall immediately suspend its activities under this Contract, as specified in the notice.
C. The City shall have the right to terminate this Contract at any time by giving a written notice of termination to Contractor. Upon receipt of such notice, Contractor shall immediately cease performance under this Contract as specified in the notice. If the City terminates this Contract:
(1) Contractor shall, not later than five days after receipt of the notice, deliver all information prepared under this Contract to the City.
(2) The City shall pay Contractor the reasonable value of Goods or Services provided by Contractor before termination; provided, however, City shall not in any manner be liable for lost profits that might have been made by Contractor had the Contract not been terminated or had Contractor completed performance required by this Contract. Contractor shall furnish to the City any financial information requested by the City to determine the reasonable value of the Goods or Services provided by Contractor. The foregoing is cumulative and does not affect any right or remedy that City may have in law or equity.
14. Default by Contractor. In case of default by the Contractor, the City reserves the right to procure the Goods or Services from other sources and deduct from any monies due, or that may thereafter become due to the Contractor, the difference between the price named in this Contract and the actual cost to the City to procure from an alternate source. Prices paid by the City will be considered the prevailing market price at the time such purchase is made.
15. Guarantee and Warranty. Contractor assumes design responsibility and warrants the articles to be free from design defect and suitable for the purposes intended by City. If it is determined by the City that the Goods and Services do not meet the minimum requirements of this Contract, the Contractor shall correct the same at Contractor's sole expense.
A. The Contractor agrees that the Goods and Services furnished under this Contract will be covered by the industry standard or better warranty.
B. Contractor further warrants that the Goods and Services furnished under this Contract will be covered by the most favorable commercial warranties the Contractor gives to any customer for the Goods and Services and that the rights and remedies provided herein are in addition to and do not limit any rights afforded to the City at law or equity, or by any other clause of this Contract.
C. Any additional warranties provided by law, including the warranty of merchantability and warranty of fitness for a particular purpose will remain in full force and effect and inure to the City's benefit. City reserves all rights and remedies provided by law for breach of any applicable warranty related to the Goods and Services.
D. City's inspections, approval, acceptance, or payment for all or part of any Goods and Form Approved by City Attorney 9-1-2020 Exhibit D - Page 6 Services will in no way affect City's warranty rights.
16. Indemnity.
A. Indemnity: Contractor shall defend, hold harmless and indemnify CITY, its officers and employees, and each and every one of them, from and against all actions, damages, costs, liabilities, claims, demands, losses, judgments, penalties, costs and expenses of every type and description, whether arising on or off the site of the work or services performed under this Contract, including, any fees and costs reasonably incurred by City’s staff attorneys or outside attorneys and any fees and expenses incurred in enforcing this provision (hereafter collectively referred to as “Liabilities”), including Liabilities for personal injury or death, damage to personal, real or intellectual property, damage to the environment, contractual or other economic damages, or regulatory penalties, arising out of or in any way connected with performance of or failure to perform this Contract by Contractor, any subcontractor (including lower-tier subcontractors) or agent of Contractor, their respective officers and employees, and anyone else for whose acts or omissions any of them may be liable, whether or not the Liabilities (1) are caused in part by a party indemnified hereunder, or (ii) are litigated, settled or reduced to judgment; provided that the foregoing indemnity does not apply to liability for any damages for death or bodily injury to persons, injury to property, or other loss, damage, or expense, to the extent arising from the active negligence or willful misconduct of, or defects in design furnished by, City, its agents, servants, or independent contractors who are directly responsible to City, except when such agents, servants, or independent contractors are under the supervision and control of Contractor or any subcontractor (including lower-tier subcontractors) or agent of Contractor.
B. Insurance Policies; Intellectual Property Claims: The existence or acceptance by City of any of the insurance policies or coverages described in this Contract does not affect or limit any of City’s rights under this section, nor do the limits of any insurance limit the liability of Contractor hereunder. This section will not apply to any intellectual property claims, actions, lawsuits or other proceedings subject to the provisions of section 8.B., above.
C. Survival. The provisions of this section will survive any expiration or termination of this Contract.
17. Funding Availability.
A. This Contract is subject to the budget and fiscal provisions of the Charter and the Sacramento City Code.
B. The City’s payment obligation under this Contract will not exceed the amount of funds appropriated and approved for this Contract by the Sacramento City Council.
C. This Section shall govern over any other contrary provision of the Contract.
18. Equal Employment Opportunity. During the performance of this Contract, Contractor, for itself, its assignees and successors in interest, agrees as follows:
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 7 A. Compliance With Regulations: Contractor shall comply with all state, local, and federal anti-discrimination laws and regulations, including the Executive Order 11246 entitled “Equal Opportunity in Federal Employment,” as amended by Executive Order 11375, 12086, and 13672, and as supplemented in Department of Labor regulations (41 CFR Chapter 60), referred to collectively as the “Regulations.” B. Nondiscrimination: Contractor, with regards to the work performed by it after award and before completion of the work under this Contract, shall not discriminate on the ground of race, color, religion, sex, national origin, age, marital status, physical handicap or sexual orientation in selection and retention of subcontractors, including procurement of materials and leases of equipment. Contractor shall not participate either directly or indirectly in discrimination prohibited by the Regulations.
C. Solicitations for Subcontractors, Including Procurement of Materials and Equipment: In all solicitations either by competitive bidding or negotiations made by Contractor for work to be performed under any subcontract, including all procurement of materials or equipment, each potential subcontractor or supplier shall be notified by Contractor of Contractor’s obligation under this Contract and the Regulations relative to nondiscrimination on the ground of race, color, religion, sex, national origin, age, marital status, physical handicap or sexual orientation.
D. Information and Reports: Contractor shall provide all information and reports required by the Regulations, or by any orders or instructions issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the City to be pertinent to ascertain compliance with the Regulations, orders and instructions. Where any information required of Contractor is in the exclusive possession of another who fails or refuses to furnish this information, Contractor shall so certify to the City, and shall set forth what efforts it has made to obtain the information.
E. Sanctions for Noncompliance: In the event of noncompliance by Contractor with the nondiscrimination provisions of this Contract, the City shall impose any sanctions it determines are appropriate including:
(1) Withholding of payments to Contractor under this Contract until Contractor complies;
(2) Cancellation, termination, or suspension of this Contract, in whole or in part.
F. Incorporation of Provisions: Contractor shall include the provisions of subsections A through E, above, in every subcontract, including procurement of materials and leases of equipment, unless exempted by the Regulations, or by any order or instructions issued pursuant thereto. The City may direct Contractor to take specific actions to enforce these provisions, including sanctions for noncompliance; provided, however, that if Contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, Contractor may request that the City join such litigation to protect the City’s interests.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 8
19. Entire Agreement. This Contract, including all Exhibits and documents referenced herein, contains the entire agreement between the parties and supersedes whatever oral or written understanding they may have had before the execution of this Contract. No alteration to the terms of this Contract shall be valid unless approved in writing by Contractor, and by City, in accordance with applicable provisions of the Sacramento City Code.
20. Modification of Contract. The Contractor shall take no direction from any City employee that changes the executed terms and conditions of the Contract, including Exhibit A, or any change that impacts the cost, price, or schedule, before receiving a written, signed modification to the Contract.
21. Severability. If a court with jurisdiction rules that any portion of this Contract or its application to any person or circumstance is invalid or unenforceable, the remainder of this Contract will not be affected thereby and will remain valid and enforceable as written, to the greatest extent permitted by law.
22. Waiver. Neither the City’s acceptance of, or payment for, any Goods or Services, nor any waiver by either party of any default, breach or condition precedent, will be construed as a waiver of any provision of this Contract, nor as a waiver of any other default, breach or condition precedent or any other right hereunder. No waiver will be effective unless it is in writing and signed by the waiving party.
23. Governing Law. This Contract shall be governed, construed and enforced in accordance with the laws of the State of California, except that the rule of interpretation in California Civil Code section 1654 will not apply. Venue of any litigation arising out of this Contract will lie exclusively in the state trial court or Federal District Court located in Sacramento County in the State of California, and the parties consent to jurisdiction over their persons and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts.
24. Assignment Prohibited. The expertise and experience of Contractor are material considerations for this Contract. City has a strong interest in the qualifications and capability of the persons and entities that will fulfill the obligations imposed on Contractor under this Agreement. In recognition of this interest, Contractor shall not assign any right or obligation pursuant to this Contract without the written consent of the City. Any attempted or purported assignment without City’s written consent shall be void and of no effect.
25. Binding Effect. This Contract is binding on the heirs, executors, administrators, successors and assigns of the parties, subject to the provisions of Section 24, above.
26. Compliance with Laws. The Contractor shall be responsible for strict compliance with all applicable laws, regulations, court orders and other legal requirements applicable to the work to be accomplished under the Contract, including the California Occupational Safety and Health Act and all applicable safety orders issued by the Division of Occupational Safety and Health, Department of Industrial Relations, State of California, and all applicable requirements of Underwriters Laboratories and the Federal Communication Commission.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 9
27. Debarment Certification
A. Pursuant to 2 CFR, Part 200, and applicable Executive Orders, the City is restricted in its ability to contract with certain parties that are debarred, suspended, or otherwise excluded or ineligible for participating in Federal assistance programs or activities. By signing this Agreement, CONTRACTOR warrants and certifies under penalty of perjury under the laws of the State of California that Contractor, including any owner, partner, director, officer, or principal of the CONTRACTOR, or any person in a position with management responsibility or responsibility for the administration of federal funds:
(1) Is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal or state department/agency;
(2) Has not within a three-year period preceding this certification been convicted of or had a civil judgment rendered against it for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public transaction or contract (federal, state, or local); violation of federal or state antitrust statutes; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property, or other criminal felony; (3) Is not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state, or local) with commission of any of the offenses enumerated in paragraph (b) above; or
(4) Has not, within a three-year period preceding this certification, had one or more public contracts (federal, state, or local) or transactions terminated for cause or default. (5) Has not been notified, within a three-year period preceding this certification, been notified of any delinquent Federal taxes in an amount that exceeds $3,500 for which the liability remains unsatisfied. Federal taxes are considered delinquent if the tax liability has been finally determined and the taxpayer is delinquent in making payment, as defined in Section 52.209-5 of the Federal Acquisition Regulations.
B. CONTRACTOR further warrants and certifies that it shall not knowingly enter into any transaction with any subcontractor, material supplier, or vendor who is debarred, suspended, declared ineligible, or voluntarily excluded from covered transactions by any federal or state department/agency. Any exceptions to the warranties and certifications in this Section must be disclosed to the City.
C. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining Contractor’s responsibility. Disclosures must indicate to whom exceptions apply, the initiating agency, and dates of action.
D. City will review the Federal Government’s System for Award Management Exclusions maintained by the General Services Administration for eligibility, prior to the execution of this Agreement. The CONTRACTOR shall provide immediate written notice to the City if, at any time prior to execution, the CONTRACTOR learns this certification is erroneous or has become erroneous by reason of changed circumstances. If it is later determined that the Contractor’s warranties and certification in this Section were erroneous, the City may terminate this Agreement for default.
OREGON MUTUAL INSURANCE COMPANY M2855A (8-19)
COMMERCIAL AUTO CLUSTER ENDORSEMENT
Includes copyrighted material of Insurance Services Office, Inc., with its permission M2855A (8-19) Page 1 of 3 190321.FRM
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
This endorsement modifies insurance provided under the following:
BUSINESS AUTO COVERAGE FORM
With respect to coverage provided by this endorsement, the provisions of the Business Auto Coverage Form apply unless modified by this endorsement.
COVERAGE SUMMARY
This is a summary of the coverages provided by this
endorsement.
1. Bail Bonds .......................................................... 1
2. Broadened Pollution........................................... 1
3. Business Property of Others .............................. 1
4. Employees as Insureds, Other Than Retail
Delivery .............................................................. 1
5. Glass Repair Deductible Waiver ........................ 1
6. Hired Auto Loss of Use ...................................... 1
7. Hired Auto Physical Damage ............................. 1
8. Loan Lease Gap................................................. 2
9. Personal Effects................................................. 2
10. Rental Reimbursement ...................................... 2
11. Towing................................................................ 2
12. Additional Insured by Contract or Agreement.... 2
13. Waiver of Subrogation by Contract
or Agreement ..................................................... 3
1. Bail Bonds
Section II – Liability Coverage, A. Coverage, 2.
Coverage Extensions, a. Supplementary Payments,
Paragraph (2) is replaced with the following:
(2) Up to $2,500 for cost of bail bonds (including
bonds for related traffic law violations)
required because of an "accident" we cover.
We do not have to furnish these bonds.
2. Broadened Pollution
The following is added to Section II – Liability
Coverage, B. Exclusions,11. Pollution:
Paragraphs a. and b. above do not apply to
"accidents" that occur away from premises
owned by or rented to an "insured" with respect
to "pollutants" carried in or upon a covered
"auto" up to the first $1,000 of damage for any
one "accident".
3. Business Property of Others
The following is added to Section II – Liability
Coverage, B. Exclusions, 6. Care, Custody or
Control:
This exclusion does not apply to "property
damage" to property of others up to an amount
not exceeding $1,000 in any one "accident".
Coverage is excess over any other valid and
collectible insurance.
4. Employees as Insureds, Other Than Retail
Delivery
The following is added to Section II – Liability
Coverage, A. Coverage, 1. Who Is An Insured:
An "employee" of yours is an "insured" while
using a covered "auto" you do not own, hire or
borrow in your business or your personal affairs.
However, this paragraph does not apply to
"auto" used for retail delivery.
5. Glass Repair Deductible Waiver
The following is added to Section III – Physical
Damage Coverage, A. Coverage, 3. a. Glass
breakage:
No deductible applies if glass damage is
repaired rather than replaced.
6. Hired Auto Loss of Use
Section III – Physical Damage Coverage, A.
Coverage, 4. Coverage Extensions, b. Loss Of Use
Expenses, the last sentence is replaced with:
However, the most we will pay for any expenses
for loss of use is $75 per day, to a maximum of
$1,000.
7. Hired Auto Physical Damage
The following is added to Section III – Physical
Damage Coverage, A. Coverage, 4. Coverage
Extensions:
Hired Auto Physical Damage
If a Covered Auto Designation Symbol 1 or 8
applies to Liability Coverage, and if at least one
covered "auto" you own is covered for
Comprehensive or Specified Causes of Loss
and Collision coverage, then the physical
damage coverage provided extends to those
"autos" you lease, hire, rent or borrow. This
does not include any "auto" you lease, hire, rent
or borrow from any of your "employees",
partners (if you are a partnership), members (if
you are a limited liability company) or members
of their households. The deductible will be equal
to the highest deductible applicable to covered
"autos" you own.
Includes copyrighted material of Insurance Services Office, Inc., with its permission M2855A (8-19) Page 2 of 3 190322.FRM
The most we will pay under this coverage is
the least of:
1. $50,000; or
2. The actual value at the time of loss; or
3. The cost of repairing or replacing the
damaged or stolen property with other
property of like kind or quality.
8. Loan Lease Gap
The following is added to Section III – Physical
Damage Coverage, A. Coverage:
Loan Lease Gap
In the event of a total "loss" to a covered "auto"
that is covered for Comprehensive or Specified
Causes of Loss and Collision coverage, we will
pay the "outstanding balance" on the lease or
loan for that covered "auto" up to $2,500.
9. Personal Effects
The following is added to Section III – Physical
Damage Coverage, A. Coverage, 4. Coverage
Extensions:
Personal Effects
For any owned "auto" that is involved in a
covered "loss", we will pay up to $500 for
"personal effects" that are lost or damaged as a
result of the covered "loss", without applying a
deductible.
10. Rental Reimbursement
The following is added to Section III – Physical
Damage Coverage, A. Coverage, 4. Coverage
Extensions:
Rental Reimbursement
If a covered "auto" owned by you is covered for
Comprehensive or Specified Causes of Loss
and Collision coverage, we will pay for rental
reimbursement expenses incurred by you for the
rental of an "auto" because of "loss" to a
covered "auto". Payment applies in addition to
the otherwise applicable amount of each
coverage you have on a covered "auto". No
deductibles apply to this coverage.
We will pay only for those expenses incurred
during the policy period beginning 24 hours after
the "loss" and ending, regardless of the policy's
expiration, with the lesser of the following
number of days:
1. The number of days reasonably required to
repair or replace the covered "auto". If "loss"
is caused by theft, this number of days is
added to the number of days it takes to
locate the covered "auto" and return it to
you, or
2. Up to $75 per day up to 30 calendar days.
This coverage does not apply while there
are spare or reserve "autos" available to you
for your operations.
If "loss" results from the total theft of a
covered "auto" of the private passenger
type, we will pay under this coverage only
that amount of your rental reimbursement
expenses which is not already provided for
under another Physical Damage Coverage
Extension.
11. Towing
Section III – Physical Damage Coverage, A.
Coverage, 2. Towing is replaced with the following:
We will pay up to $100 for towing and labor
costs incurred each time a covered "auto" of the
private passenger or Light Local Service
(0 – 10,000 lbs. GVW) type is disabled.
However, the labor must be performed at the
place of disablement.
12. Additional Insured by Contract or Agreement
A. The following is added to Section II – Liability
Coverage, A. Coverage, 1. Who Is An Insured:
When you have agreed in a written contract
or agreement to include a person or
organization as an additional "insured", such
person or organization is included as an
"insured" subject to the following:
1. Such person or organization is an
additional "insured" only to the extent
such person or organization is liable for
"bodily injury" or "property damage"
because of the conduct of an "insured"
under Paragraphs a. or b. under Section
II – Liability Coverage, Paragraph A.1.
Who Is An Insured, caused by an
"accident" and resulting from the
ownership, maintenance or use of a
covered "auto"; and
2. The written contract or agreement
described above must have been
executed prior to the "accident" that
caused the "bodily injury" or "property
damage" and be in effect at the time of
such "accident"; and
3. The insurance afforded to any such
additional "insured" does not apply to
any "accident" beyond the period of time
required by the written contract or
agreement described above.
B. The most we will pay on behalf of such
additional "insured(s)" is the lesser of:
1. The Limits of Insurance specified in the
written contract or agreement described
above; or
Includes copyrighted material of Insurance Services Office, Inc., with its permission M2855A (8-19) Page 3 of 3 190323.FRM
2. The Limits of Insurance shown in the
Declarations.
This provision shall not increase the Limit of
Insurance shown in the Declarations in this
policy or coverage part.
C. The following change is made to Section II –
Liability Coverage, A. Coverage, 1. Who is An
Insured:
Paragraph 1.c. is deleted in its entirety.
D. The following changes are made to Section IV – Business Auto Conditions, B. General Conditions, Paragraph 5. Other Insurance:
1. The following is added to Paragraph 5.a.:
If required by the written contract or
agreement described above, the insurance
afforded to the additional "insured" under
this provision will be primary to, and will not
seek contribution from, the additional
"insured’s" own insurance.
2. Paragraph 5.c. is deleted in its entirety.
E. Section V – Definitions, "insured contract" is
amended to add the following:
An "insured contract" does not include that
part of any contract or agreement:
That pertains to the ownership,
maintenance or use of an "auto" and
which indemnifies a person or
organization for other than the vicarious
liability of such person or organization
for "bodily injury" or "property damage"
caused by your operation or use of a
covered "auto".
However, a person or organization is an
additional "insured" under this provision
only to the extent such person or
organization is not named as an
"insured" by separate endorsement to
this policy.
13. Waiver of Subrogation by Contract or Agreement
The following is added to Section IV – Business
Auto Conditions, A. Loss Conditions, Paragraph 5.
Transfer Of Rights Of Recovery Against Others To
Us:
We waive any right of recovery we have against
a person or organization because of payments
we make for "bodily injury" or "property damage"
when you and such person or organization have
agreed in writing in a contract or agreement to
waive such right of recovery, provided:
1. Such written contract or agreement was:
a. Made prior to the "accident" or "loss"
resulting in the covered "bodily injury" or
"property damage"; and
b. Was in effect at the time of the covered
"bodily injury" or "property damage".
2. The covered "bodily injury" or "property
damage" must arise out of the operations
specified in such written contract or
agreement.
3. At our request you must provide us with a
copy of the aforementioned written contract
or agreement.
Additional Definitions
The following Paragraphs are added to Section V – Definitions:
Q. "Personal effects" means your tangible property
that is worn or carried by you, except tools,
jewelry, money or securities.
R. "Outstanding balance" means the amount you
owe on the lease or loan at the time of the "loss"
less any overdue lease/loan payments, security
deposits not returned by the lessor, costs for
extended warranties or insurance purchased
with the loan or lease, or carry-over balances
from previous loans or leases.
Form Approved by City Attorney 9-1-2020 Page 1
CONTRACT #: PRC003258
CONTRACT NAME: On-Call Electric Motor Repair Parts & Service CONTRACT PROJECT #: NA DEPARTMENT: Utilities
DIVISION: Engineering & Water Resources
CITY OF SACRAMENTO
GOODS AND NONPROFESSIONAL SERVICES AGREEMENT
THIS CONTRACT is made at Sacramento, California, by and between the CITY OF SACRAMENTO, a charter city and municipal corporation (“CITY”), and
All Electric Motors, Inc.
1452 Canal Street, Auburn, CA 95603
Phone: (530) 888-6211/E-mail: [email protected] (“Contractor”), as of the Effective Date, as defined below.
The City and Contractor agree as follows:
1. Effective Date. This Contract shall be effective beginning the date it is fully executed by the duly authorized parties.
2. Contract Documents. This Contract includes each of the following documents, which are attached or incorporated by this reference (referred to collectively as the “Contract Documents”):
Invitation to Bid, Request for Qualifications, or Request for Proposals, and any Addenda Exhibit A - Technical Specifications
Exhibit B – Payment
Exhibit C – Insurance
Exhibit D – General Conditions
Purchase Orders
If there is a conflict between the terms and conditions of any document prepared or provided by the Contractor and made a part of this Contract and the other terms or conditions of the Contract, the other terms and conditions of the Contract control.
3. Goods and Services. Subject to the terms and conditions set forth in this Contract, Contractor shall provide to City the goods, materials, equipment or supplies (“Goods”) and the nonprofessional services (“Services”) described in Exhibit A (referred to collectively as “Goods and Services”).
Contractor will not be compensated for goods, materials, equipment, supplies, or nonprofessional services outside the scope of Exhibit A (“Additional Goods and Services”) unless, before providing Additional Goods and Services: (a) Contractor notifies City and City agrees that Form Approved by City Attorney 9-1-2020 Page 2
the Additional Goods and Services are outside the scope of Exhibit A; (b) Contractor estimates the additional compensation required for these Additional Goods and Services; and (c) City, after notice, approves in writing a Supplemental Contract specifying the Additional Goods and Services and the amount of additional compensation to be paid Contractor.
City will have no obligations whatsoever under this Contract or any Supplemental Contract, unless and until this Contract or any Supplemental Contract is approved by the City as required by the Sacramento City Code. As used in this Contract, the term “Goods and Services” includes both Goods and Services and Additional Goods and Services as applicable.
4. Payment. City shall pay Contractor at the times and in the manner set forth in Exhibit B.
Contractor shall submit all invoices to City in the manner specified in Exhibit B.
5. Facilities and Equipment. Except as set forth below, Contractor shall, at its sole cost and expense, furnish all facilities and equipment required for Contractor to perform this Contract. City shall furnish to Contractor only the facilities and equipment listed below, if any.
Access to City facilities will be provided, as needed.
6. Insurance. Contractor shall, at its sole cost and expense, maintain the insurance coverage described in the attached Exhibit C.
7. General Conditions. Contractor shall comply with the terms and conditions set forth in the attached Exhibit D.
8. Non-Discrimination in Employee Benefits. This Contract may be subject to Sacramento City Code chapter 3.54, Non- Discrimination in Employee Benefits by City Contractors. A summary of the requirements, entitled "Requirements of the Non-Discrimination in Employee Benefits Code (Equal Benefits Ordinance),” can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
Contractor acknowledges and represents that Contractor has read and understands the requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.54. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance.
Contractor's violation of Sacramento City Code chapter 3.54 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
9. Living Wage. This Contract may be subject to Sacramento City Code chapter 3.58, Living Wage.
A summary of the requirements, entitled "Living Wage Requirements", can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
The Living Wage Ordinance is applicable to certain contracts with the City in an amount of $250,000 or more (either initial value or total value after amendment) or if the total value of all Contractor's contracts with the City is $250,000 or more over a 12-month period.
Form Approved by City Attorney 9-1-2020 Page 3
Contractor acknowledges and represents that Contractor has read and understands the requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.58. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance.
Contractor shall require applicable subcontractors to fully comply with all applicable requirements of Sacramento City Code chapter 3.58 and include these requirements in all subcontracts covered by Sacramento City Code chapter 3.58.
Contractor's violation of Sacramento City Code chapter 3.58 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
In addition, for Services that constitute "Public Works" under California Labor Code Section 1720 et seq., if both prevailing wage and living wage requirements apply, Contractor shall pay the higher of the two rates.
10. Considering Criminal Conviction Information in the Employment Application Process. This Contract may be subject to the requirements of Sacramento City Code chapter 3.62, Procedures for Considering Criminal Conviction Information in the Employment Application Process. A summary of the requirements, entitled “Ban-The-Box Requirements,” can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
The Ban-The-Box Requirements are applicable to certain contracts with the City in an amount of $250,000 or more (either initial value or total value after amendment) or if the total value of all Contractor's contracts with the City is $250,000 or more over a 12-month period.
Contractor acknowledges and represents that Contractor has read and understands these requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.62. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance. Contractor shall require applicable subcontractors to fully comply with all applicable requirements of Sacramento City Code chapter 3.62 and include these requirements in all subcontracts covered by Sacramento City Code chapter 3.62.
Contractor's violation of Sacramento City Code chapter 3.62 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
11. Local Business Enterprise Program. The Local Business Enterprise Program Participation Requirements ("LBE Participation Requirements") are applicable to this Contract. A summary of the requirements, entitled "LBE Participation Requirements," can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
Form Approved by City Attorney 9-1-2020 Page 4
Contractor acknowledges and represents that Contractor has read and understands these requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.60. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance. Contractor shall require applicable subcontractors to fully comply with all applicable requirements of Sacramento City Code chapter 3.60 and include these requirements in all subcontracts covered by Sacramento City Code chapter 3.60.
Contractor's violation of Sacramento City Code chapter 3.60 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
12. Authority. The person signing this Contract for Contractor represents and warrants that he or she has read, understands, and agrees to all the Contract terms and is fully authorized to sign this Contract on behalf of the Contractor and to bind the Contractor to the performance of the Contract’s obligations.
[Signature Pages Follow Exhibits]
Form Approved by City Attorney 9-1-2020 Exhibit A - Page 1
EXHIBIT A
TECHNICAL SPECIFICATIONS
1. Representatives.
The CITY Representative for this Agreement is:
Ray Wilderman, Superintendent
Department of Utilities
1395 35th Avenue, Sacramento, CA 95822
Phone: (916) 808-8067/E-mail: [email protected] The CONTRACTOR Representative for this Agreement is:
Jeffrey Lane, President
All Electric Motors, Inc.
1452 Canal Street, Auburn, CA 95603
Phone: (530) 888-6211/E-mail: [email protected] Unless otherwise provided in this Contract, all Contractor questions and correspondence pertaining to this Contract must be addressed to the City Representative. All City questions and correspondence must be addressed to the Contractor Representative.
2. Scope of Services. Contractor shall provide Goods and Services to City as set forth in Attachment 1 to this Exhibit A.
3. Quantities. The quantities stated in Attachment 1 to this Exhibit A or Exhibit B are only estimates of the City's requirements. Contractor shall furnish Goods and Services at the prices quoted, in accordance with the City's available funds and actual needs as they occur throughout the term of this Contract.
The City is not required to purchase all of the Goods and Services listed, or to expend all available funding reflected in Exhibits A or B.
4. Time of Performance. The Goods and Services described in this Contract shall be provided for One Year. The City may extend this Contract for up to Four (4) additional one-year terms, for a maximum five-year term. Contractor shall provide the Goods and Services in accordance with any schedule in Attachment 1 to this Exhibit A.
5. Delivery and Inspection.
A. Delivery. Unless otherwise stated by the City in writing, delivery of Goods shall be made to the City address set forth in Exhibit A. All shipments are Free on Board (F.O.B.) destination with freight prepaid unless otherwise stated.
Form Approved by City Attorney 9-1-2020 Exhibit A - Page 2 Contractor assumes full responsibility for all transportation scheduling and costs, including costs for containers, packing, handling, and insurance. The City reserves the right to request and receive a copy of the freight bill of lading on all purchases shipped F.O.B. prepaid and added.
Time is of the essence in the delivery. If delivery cannot be made as specified in Exhibit A or as otherwise stated by the City, Contractor shall notify the City immediately to request instructions on how to proceed and shall not make delivery before receipt of instructions.
Periods of performance may be extended if, in the sole judgment of the City, the cause of delay justifies an extension.
B. Inspections: Goods will be inspected at the destination before acceptance by an authorized representative of the City for workmanship, appearance, proper functioning of all equipment and systems, and conformance to all other requirements of this Contract. The Goods shall be delivered to City free of any liens or encumbrances.
Notwithstanding the requirements for any City inspection and testing at the destination and except where specialized inspections or testing are specified for performance solely by the City, Contractor shall perform or have performed the inspections or tests required to substantiate that all Goods provided under the Contract conform to the drawings, specifications, and other Contract requirements, including, if applicable, the technical requirements for the manufacturer's part number(s) specified.
C. Deficiencies: If deficiencies in the Goods are discovered, Contractor shall correct and redeliver the Goods for re-inspection and acceptance. The period for payment and/or commencement of discount period (if applicable) does not begin until corrective action is complete. The cost of storing rejected Goods and the cost for shipping rejected Goods back to the Contractor or point of origin shall be paid by Contractor.
D. Inspection of Facilities: If requested by the City, Contractor shall provide the City with an inspection tour of Contractor's facilities where any Goods will be designed, manufactured, or assembled by Contractor.
6. Title/Risk of Loss. Title, ownership, and risk of loss or damage of the Goods remains with the Contractor until the Goods are delivered to, inspected, and accepted by the City, except when the loss or damage is due to the sole negligence of the City.
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 1
EXHIBIT B
PAYMENT
1. Contractor’s Compensation. The total of all fees paid to the Contractor for the provision of Goods and Services as set forth in Exhibit A, including any authorized reimbursable expenses, shall not exceed the total sum of $ 3,000,000. The payments specified in this Exhibit B shall be the only payments made to Contractor unless the City approves a Supplemental Contract.
2. Pricing. Contractor shall be paid as set forth in Exhibit A or Attachment 1 to this Exhibit B and any applicable special provisions included in the request for bids or proposals. If there is a conflict between Exhibit A or Exhibit B and the Special Provisions, Exhibit A or Exhibit B controls.
3. Contractor’s Reimbursable Expenses. “Reimbursable Expenses” are limited to actual expenditures of Contractor for expenses that are necessary for the proper satisfaction of the Contract and are only payable if specifically authorized in advance in writing by the City.
4. Miscellaneous Charges. No additional charges will be allowed unless specified in the Contract, including charges for transportation, fuel, containers, packing, or disposal.
5. Price Adjustments for Goods. Unless otherwise stated, prices are maximum for the term of the Contract. Price adjustments, if allowed under this Contract, must be requested in writing and accompanied by the required information to substantiate the request for price adjustment, as set forth in the Contract. Any allowable request for price adjustment must be delivered to the City at least 30 days before the adjusted prices become effective. No price adjustment allowable under this Contract will be granted retroactively. The City must also be given the benefit of any decline in prices. If any price increase is granted by the City, the increase shall not be greater than 3% from the prior year.
6. Purchase Orders. Unless otherwise stated, a purchase order will be issued to the Contractor on behalf of the City. Purchase orders will cite the quantity of Goods or Services requested, the purchase amount, and time of performance. If the time of performance of this Contract extends beyond the close of the City's fiscal year, another purchase order may be issued. No purchase order supersedes any provision of this Contract. Contractor shall not deliver Goods or provide Services until Contractor receives a purchase order or other written notification by the City.
7. Payments to Contractor. Contractor is responsible for supplying all documentation necessary to verify invoices to the City’s satisfaction.
A. Payment terms are NET 30 days, unless the Contractor offers a prompt payment discount that was accepted by the City or as otherwise stated in this Contract. Any prompt payment discounts will be computed from the date of acceptance by the City, or from the date an invoice is received, whichever occurs later.
B. Invoices must be submitted to either of the addresses specified below. (1) Email. Submit email invoices and any attachments to:
[email protected]
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 2 (2) Postal Mail. If emailing is not an option, mail to:
A/P Processing Center
City of Sacramento
915 I Street, Floor 4
Sacramento, CA 95814-2608
C. All invoices submitted by CONTRACTOR must contain the following information:
(1) Job/Project Name
(2) CITY’s current Purchase Order Number
(3) Contractor’s Invoice Number
(4) Date of Invoice Issuance
(5) Work Order Number (if applicable)
(6) CITY representative identified on the Purchase Order (7) Contractor’s remit address
(8) Itemized description of items billed under Invoice
(9) Itemized description of all authorized Reimbursable Expenses (10) Itemized description of all applicable taxes (sales, use, excise, etc.) (11) Amount of Invoice (itemize all authorized Reimbursable Expenses) (12) Total Billed to Date under Contract (if applicable) D. Items must be separated into Goods, Services, and Reimbursable Expenses. All applicable sales, use, excise, or similar taxes, including federal excise tax, must be itemized separately on the invoice. Invoices that do not conform to the format outlined above will be returned to Contractor for correction. City is not responsible for delays in payment to Contractor resulting from Contractor’s failure to comply with the invoice format described above.
E. For Goods only, a bill of lading number and weight of shipment will be shown for shipments on the Government Bill of Lading.
F. Unless otherwise specified in this Contract, partial payments will not be made by the City and payment will not be due until the completion of the Goods order. No payment precludes the City’s right to inspect. Requests for payment status should be addressed to the City Representative for this Contract.
8. Additional Goods and Services. Additional Goods and Services shall be provided only when a Supplemental Contract authorizing the Additional Goods and Services is approved in writing by the City in accordance with the City’s contract amendment procedures. The City reserves the right to perform any Additional Services with its own staff or to retain other contractors to perform the Additional Services.
9. Billing Disputes. The burden of proof shall be on the Contractor to establish the accuracy of its invoices. Upon presentation and verification of the information provided by Contractor, the City will review all records and make a final determination and present its finding to Contractor.
10. Accounting Records of Contractor. During performance of this Contract and for a period of three Form Approved by City Attorney 9-1-2020 Exhibit B - Page 3 years after completion of performance, Contractor shall maintain all accounting and financial records related to this Contract, in accordance with generally accepted accounting practices, including records of Contractor’s costs for performance under this Contract and records of Contractor’s Reimbursable Expenses. Contractor shall keep and make records available for inspection and audit by representatives of the City upon reasonable written notice.
11. Sales Tax Requirements. The City is not exempt from paying sales tax. Sales tax must be shown on the invoice as a separate line item.
12. Use Tax Requirements. On out-of-state purchases, Contractor shall list its Use Tax Permit Number (if applicable) on the invoice, which authorizes Contractor to charge and collect California Sales Tax. The Purchase Order will include sales tax, if applicable to the purchase, regardless of whether an out-of-state Contractor collects California State sales tax or not.
The City shall pay Use Tax directly to the California Department of Tax and Fee Administration ("CDTFA") if the out-of-state Contractor is not required to collect California Sales Tax. During the performance of this Contract, Contractor, for itself, its assignees and successors in interest, agrees as follows:
A. Use Tax Direct Payment Permit: For all leases and purchases of tangible personal property used to perform the Contract and shipped from outside California, Contractor and any subcontractor(s) leasing or purchasing such tangible personal property shall obtain a Use Tax Direct Payment Permit from the CDTFA in accordance with the applicable CDTFA criteria and requirements.
B. Sellers Permit: For any construction contract and any construction subcontract in the amount of $5,000,000 or more, Contractor and the subcontractor(s) shall obtain sellers permits from the CDTFA and shall register the jobsite as the place of business for the purpose of allocating local sales and use tax to the City. Contractor and its subcontractors shall remit the self-accrued use tax to the CDTFA and shall provide a copy of each remittance to the City.
C. The above provisions apply in all instances unless prohibited by the funding source for the Contract.
13. Excise Tax Requirements. The City of Sacramento is exempt from the payment of Federal Excise Tax. An exemption certificate will be submitted to Contractor upon request. If Federal Excise Tax is applicable to the transaction, it must be so stated and excluded from the price.
14. Tax Payments. Contractor shall pay, when and as due, any and all taxes incurred as a result of Contractor’s compensation hereunder, including estimated taxes, and shall provide CITY with proof of the payment upon request. Contractor hereby agrees to indemnify CITY for any claims, losses, costs, fees, liabilities, damages or injuries suffered by CITY arising out of Contractor’s breach of this section.
15. Public Works Requirements. [To be completed by the City Representative:] The services provided under this Contract include [check one if applicable]:
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 4 ________ Construction work in an amount exceeding $25,000; ________ Land Surveying, material testing, or inspection services provided for a City construction project during the design, pre-construction, construction, or post-construction phases of the project; or
________ Alteration, demolition, repair, or maintenance work in an amount exceeding $15,000.
If any of the lines is checked above, this Contract includes “Public Work” under the California Labor Code and is subject to the following requirements:
A. Payment of Prevailing Wages: Contractor and any subcontractor(s) performing any Public Work shall comply with the provisions of Sacramento City Code section 3.60.180 and applicable provisions of the California Labor Code, which require, among other things, that Contractor and all subcontractors pay not less than the prevailing rate of wages, as determined by the Director of the California Department of Industrial Relations (“DIR”) in accordance with California Labor Code section 1773. Contractor and every subcontractor shall maintain payroll records and submit certified payrolls and other labor compliance documentation electronically when and as required by CITY. In addition, Labor Code Section 1771.4 requires the Contractor and any subcontractor performing any Public Work to furnish electronic payroll records directly to the Labor Commissioner. Contractor shall include these requirements in every subcontract.
This Agreement is subject to compliance monitoring and enforcement by the DIR, as specified in California Labor Code section 1771.4. The Contractor and any subcontractor will be subject to withholding and penalties for violation of prevailing wage requirements in accordance with applicable law, including Labor Code Sections 1726, 1741, 1771.5, and 1775, and City Code Section 3.60.180. Questions regarding the City’s Labor Compliance Program should be directed to the City Representative.
B. DIR Registration: California Labor Code Section 1725.5 requires the Contractor and all subcontractors performing Public Works services to be currently registered with the DIR, as specified in California Labor Code Section 1725.5. California Labor Code Section 1771.1 provides that a contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal (subject to the requirements of Section 4104 of the California Public Contract Code), or engage in the performance of any contract for Public Work, unless currently registered and qualified to perform Public Work in accordance with California Labor Code Section 1725.5.
Further information can be found on DIR’s website at http://www.dir.ca.gov/PublicWorks/Contractors.html. The above summary is provided solely for informational purposes and does not in any way affect the Contractor’s and subcontractors’ obligation to comply in all respects with all other applicable laws and regulations. The Contractor shall disseminate these provisions to all subcontractors.
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 5 Before the performance of work by Contractor or any subcontractor(s) under this Contract, Contractor shall furnish Contractor’s and any subcontractors’ current DIR registration number(s). The Contractor’s current DIR registration number and the current DIR registration number of all subcontractors will be listed on the Subcontractor and LBE Participation Verification Form, incorporated herein.
C. Workers’ Compensation Certification. In accordance with California Labor Code Section 1861, by signing this Contract, Contractor acknowledges and represents that Contractor is aware of the provisions of section 3700 of the California Labor Code which requires every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and that Contractor will comply with the provisions of the Labor Code before commencing performance under this Contract.
D. Apprentices. If this Contract is for the performance of any Public Work, and the amount of the Contract is $30,000 or more, the Contractor and any subcontractors performing any Public Work under this Contract must comply with and be subject to enforcement under, the provisions of Sacramento City Code Section 3.60.190, Section 1777.5 et seq. of the California Labor Code, and implementing regulations set forth in Title 8 of the California Code of Regulations, governing the employment of apprentices. The Contractor and any subcontractors performing Public Work will be subject to penalties for apprenticeship violations in accordance with Labor Code Section 1777.7.
E. Working Hours. If this Contract is for the performance of any Public Work, Contractor and any subcontractors performing any Public Work under this Contract must comply with and be subject to enforcement under, the provisions of Sacramento City Code Section 3.60.180 and California Labor Code Section 1810 et seq., governing the working hours of employees performing Public Work.
F. Failure to Comply with Labor Compliance. If all applicable labor compliance requirements are not met, the City will have the right to withhold or reject a payment request and/or invoice, in whole or in part, without in any way relieving Contractor or its subcontractors of any obligations under this Contract.
G. Subcontractors. The Contractor shall include these provisions A through F in every subcontract or sub-agreement for any subcontractors performing work under this Contract.
Form Approved by City Attorney 9-1-2020 Exhibit C - Page 1
EXHIBIT C
INSURANCE
1. Insurance Requirements. During the entire term of this Contract, Contractor shall maintain the insurance coverage described in the Insurance Terms below. Full compensation for all premiums that Contractor is required to pay for the insurance coverage described herein shall be included in the compensation specified under this Contract. No additional compensation will be provided for Contractor's insurance premiums. Any available insurance proceeds in excess of the specified minimum limits and coverages shall be available to the City.
Contractor's liability to the City is not in any way limited to or affected by the amount of insurance coverage required or carried by the Contractor in connection with this Contract.
2. General Liability Minimum Scope and Limits of Insurance Coverage. Commercial General Liability Insurance is required providing coverage at least as broad as ISO CGL Form 00 01 on an occurrence basis for bodily injury, including death, of one or more persons, property damage, and personal injury, arising out of activities performed by or on behalf of the Contractor and subcontractors, products and completed operations of Contractor and subcontractors, and premises owned, leased, or used by Contractor and subcontractors, with limits of not less than one million dollars ($1,000,000) per occurrence. The policy shall provide contractual liability and products and completed operations coverage for the term of the policy.
The City, its officials, employees and volunteers shall be covered by policy terms or endorsement as additional insureds as respects general liability arising out of: activities performed by or on behalf of Contractor and subcontractors; products and completed operations of Contractor and subcontractors; and premises owned, leased, or used by Contractor and subcontractors.
3. Automobile Liability Minimum Scope and Limits of Insurance Coverage. (Check the applicable provision.)
_X_ Automobile Liability Insurance is required providing coverage at least as broad as ISO Form CA 00 01 for bodily injury, including death, of one or more persons, property damage and personal injury, with limits of not less than one million dollars ($1,000,000) per occurrence. The policy shall provide coverage for owned, non-owned and/or hired autos as appropriate to the operations of the Contractor.
The City, its officials, employees and volunteers shall be covered by policy terms or endorsement as additional insureds as respects auto liability. ___ No automobile liability insurance is required, and by signing this Contract, Contractor certifies as follows:
“Contractor certifies that a motor vehicle will not be used in the performance of any work or services under this agreement. If, however, Contractor does transport items under this Contract, or this Contract is amended to require any employees of Contractor to use a Form Approved by City Attorney 9-1-2020 Exhibit C - Page 2 vehicle to perform services under the Contract, Contractor understands that it must maintain and provide evidence of Automobile Liability Insurance providing coverage at least as broad as ISO Form CA 00 01 for bodily injury, including death, of one or more persons, property damage and personal injury, with limits of not less than one million dollars ($1,000,000) per occurrence. The policy shall provide coverage for owned, nonowned and/or hired autos as appropriate to the operations of the Contractor.”
4. Excess Insurance. The minimum limits of insurance required above may be satisfied by a combination of primary and umbrella or excess insurance coverage, provided that any umbrella or excess insurance contains, or is endorsed to contain, a provision that it will apply on a primary basis for the benefit of the City, and any insurance or self-insurance maintained by City, its officials, employees, or volunteers will be in excess of Contractor's umbrella or excess coverage and will not contribute to it.
5. Workers’ Compensation Minimum Scope and Limits of Insurance Coverage. (Check the applicable provision.)
_X_ Workers’ Compensation Insurance is required with statutory limits and Employers' Liability Insurance with limits of not less than one million dollars ($1,000,000). The Workers' Compensation policy shall include a waiver of subrogation in favor of the City.
___ No work or services will be performed on or at CITY facilities or CITY Property, therefore a Workers’ Compensation waiver of subrogation in favor of the CITY is not required. ___ No Workers’ Compensation insurance is required, and by signing this Contract, Contractor certifies as follows:
“Contractor certifies that its business has no employees, and that it does not employ anyone, and is therefore exempt from the legal requirements to provide Workers' Compensation insurance. If, however, Contractor hires any employee during the term of this Contract, Contractor understands that Workers’ Compensation with statutory limits and Employer’s Liability Insurance with a limit of not less than one million dollars ($1,000,000) is required. The Workers’ Compensation policy will include a waiver of subrogation in favor of the City.”
6. Other Insurance Provisions. The policies must contain, or be endorsed to contain, the following provisions:
A. Contractor's insurance coverage, including excess insurance, shall be primary insurance as respects the City, its officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officials, employees or volunteers will be in excess of Contractor's insurance and will not contribute with it.
B. Any failure to comply with reporting provisions of the policies will not affect coverage provided to the City, its officials, employees or volunteers.
C. Coverage shall state that Contractor's insurance applies separately to each insured Form Approved by City Attorney 9-1-2020 Exhibit C - Page 3 against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
D. Contractor shall provide the City with 30 days written notice of cancellation or material change in the policy language or terms.
7. Acceptability of Insurance. Insurance must be placed with insurers with a Bests' rating of not less than A:VI. Self-insured retentions, policy terms or other variations that do not comply with the requirements of this Exhibit C must be declared to and approved by the City in writing before execution of this Contract.
8. Verification of Coverage.
A. Contractor shall furnish City with certificates and required endorsements evidencing the insurance required. Certificates of insurance must be signed by an authorized representative of the insurance carrier. Copies of policies shall be delivered to the City Representative on demand.
B. Contractor shall send all insurance certificates and endorsements, including policy renewals, during the term of this Contract directly to:
City of Sacramento
c/o Exigis LLC
PO Box 947
Murrieta, CA 92564
C. Certificate Holder must be listed as:
City of Sacramento
c/o Exigis LLC
PO Box 947
Murrieta, CA 92564
D. The City may withdraw its offer of Contract or cancel this Contract if the certificates of insurance and endorsements required have not been provided before execution of this Contract. The City may withhold payments to Contractor and/or cancel the Contract if the insurance is canceled or Contractor otherwise ceases to be insured as required herein.
9. Subcontractor Insurance Coverage. Contractor shall require and verify that all subcontractors maintain insurance coverage that meets the minimum scope and limits of insurance coverage specified in this Exhibit C.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 1
EXHIBIT D
GENERAL CONDITIONS
1. Independent Contractor. A. It is understood and agreed that Contractor (including Contractor’s employees) is an independent contractor and that no relationship of employer-employee exists between the parties hereto for any purpose whatsoever. Neither Contractor nor Contractor’s assigned personnel will be entitled to any benefits payable to CITY employees. CITY is not required to make any deductions or withholdings from the compensation payable to Contractor under the provisions of this Contract, and Contractor will be issued a Form 1099 for its services hereunder. As an independent contractor, Contractor hereby agrees to indemnify and hold CITY harmless from any and all claims that may be made against CITY based upon any contention by any of Contractor’s employees or by any third party, including any state or federal agency, that an employer-employee relationship or a substitute therefor exists for any purpose whatsoever by reason of this Contract or by reason of the nature and/or performance under this Contract.
B. It is further understood and agreed by the parties that Contractor, in the performance of its obligations, is subject to the City’s control and direction as to the designation of tasks to be performed and the results to be accomplished under this Contract, but not as to the means, methods, or sequence used by Contractor for accomplishing the results. To the extent that Contractor obtains permission to, and does, use CITY facilities, space, equipment or support services in the performance of this Contract, this use will be at the Contractor’s sole discretion based on the Contractor’s determination that the use will promote Contractor’s efficiency and effectiveness. Except as may be specifically provided elsewhere in this Contract, the CITY does not require that Contractor use CITY facilities, equipment or support services or work in CITY locations in the performance of this Contract. As used in this Contract, "sole discretion" or "sole judgment" means that the party authorized to exercise its discretion or judgment may do so based on an unfettered assessment of its own interests, without considering how its decision affects the other party, and unconstrained by the implied covenant of good faith and fair dealing.
C. If, in the performance of this Contract, any third persons are employed by Contractor, such persons will be entirely and exclusively under the direction, supervision, and control of Contractor. Except as otherwise provided in this Contract, all terms of employment, including hours, wages, working conditions, discipline, hiring, and discharging, or any other terms of employment or requirements of law, shall be determined by Contractor.
It is further understood and agreed that Contractor will issue W-2 or 1099 Forms for income and employment tax purposes for all Contractor’s assigned personnel and subcontractors.
D. The provisions of this section will survive any expiration or termination of this Contract.
Nothing in this Contract creates an exclusive relationship between CITY and Contractor.
Contractor may represent, perform services for, or be employed by any additional persons or companies so long as Contractor does not violate the provisions of Section 5, below.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 2
2. Licenses; Permits, Etc. Contractor represents and warrants that Contractor has, and shall maintain at all times during the term of this Contract at its sole cost and expense, all licenses, permits, qualifications, and approvals of any nature that are legally required for Contractor to practice its profession or fulfill the terms of this Contract, including a City Business Operations Tax Certificate and any required certification issued by the California Secretary of State.
3. Time. Time is off the essence in the performance of this Contract. Contractor shall devote the necessary time and effort to its performance under this Contract. Neither party will be considered in default of this Contract, to the extent that party’s performance is prevented or delayed by any cause, present or future, that is beyond the reasonable control of that party.
4. Contractor Not Agent. Except as City may specify in writing, Contractor and Contractor’s personnel have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor and Contractor’s personnel shall have no authority, express or implied, to bind City to any obligations whatsoever.
5. Conflicts of Interest. Contractor covenants that neither it, nor any officer or principal of its firm, has or will acquire any interest, directly or indirectly, that would conflict in any manner with the City’s interests or that would in any way hinder Contractor’s performance under this Contract.
Contractor further covenants that in the performance of this Contract, no person having any such interest will be employed by it as an officer, employee, agent or subcontractor, without the City’s written consent.
Contractor agrees to avoid conflicts of interest or the appearance of any conflicts of interest with the City’s interests during the performance of this Contract. If Contractor is or employs a former officer or employee of the City, Contractor and any former City officer or employee shall comply with the provisions of Sacramento City Code Section 2.16.090 pertaining to appearances before the City Council or any City department, board, commission, or committee.
6. Hazardous Substances. "Hazardous Substances" means any substance, material, waste, or other pollutant or contaminant that is or becomes designated, classified, or regulated as hazardous or toxic under any law, regulation, rule, order, decree, or other governmental requirement now in effect or later enacted. If Contractor is shipping Hazardous Substances, Contractor must supply a Safety Data Sheet ("SDS") with the first shipment of Hazardous Substances to each City location receiving the Hazardous Substances. If the content of an SDS is revised, Contractor must provide a revised SDS to each City location receiving Hazardous Substances.
7. Confidentiality of City Information. During performance of this Contract, Contractor may gain access to and use City information regarding inventions, machinery, products, prices, apparatus, costs, discounts, future plans, business affairs, governmental affairs, processes, trade secrets, technical matters, systems, facilities, customer lists, product design, copyright, data, and other vital information (hereafter collectively referred to as “City Information”) that are valuable, special and unique assets of the City.
Contractor agrees to protect all City Information and treat it as strictly confidential, and further agrees that Contractor shall not at any time, either directly or indirectly, divulge, disclose or Form Approved by City Attorney 9-1-2020 Exhibit D - Page 3 communicate in any manner any City Information to any third party without the City’s prior written consent.
In addition, Contractor must comply with all City policies governing the use of the CITY network and technology systems, as set forth in applicable provisions of the City of Sacramento Administrative Policy Instructions # 30. A violation by Contractor of this section is a material violation of this Contract and shall justify legal and equitable relief.
8. Contractor Information.
A. City shall have full ownership and control, including ownership of any copyrights, of all information prepared, produced, or provided by Contractor under this Contract. In this Contract, the term “information” means and includes: any and all work product, submittals, reports, plans, specifications, and other deliverables consisting of documents, writings, handwritings, typewriting, printing, photostatting, photographing, computer models, and any other computerized data and every other means of recording any form of information, communications, or representation, including letters, works, pictures, drawings, sounds, or symbols, or any combination thereof. Contractor shall not be responsible for any unauthorized modification or use of such information for other than its intended purpose by City.
B. Contractor shall fully defend, indemnify and hold harmless City, its officers and employees, and each of them, from and against any and all claims, actions, lawsuits or other proceedings alleging that all or any part of the information prepared, produced, or provided by Contractor under this Contract infringes upon any third party’s trademark, trade name, copyright, patent or other intellectual property rights. City shall make reasonable efforts to notify Contractor not later than ten days after City is served with any such claim, action, lawsuit or other proceeding. However, City’s failure to provide notice within the ten-day period does not relieve Contractor of its obligations hereunder, which survive any termination or expiration of this Contract.
C. All proprietary and other information received from Contractor by City, whether received in connection with Contractor’s proposal to City or in connection with Contractor’s performance, will be disclosed upon receipt of a request for disclosure, in accordance with the California Public Records Act; provided, however, that, if any information is set apart and clearly marked “trade secret” when it is provided to City, City shall give notice to Contractor of any request for the disclosure of such information. The Contractor will then have five days from the date it receives notice to petition the court for a protective order to prevent the disclosure of the information. The Contractor shall have sole responsibility for defense of the actual “trade secret” designation of such information.
D. The parties understand and agree that any failure by Contractor to respond to the notice provided by City and seek a protective order, in accordance with the provisions of subsection C, above, constitutes a complete waiver by Contractor of any rights regarding the information designated “trade secret” by Contractor, and the information will be disclosed by City in accordance with the Public Records Act.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 4
9. Notification of Material Changes in Business. Contractor agrees that if it experiences any material changes in its business, including a reorganization, refinancing, restructuring, leveraged buyout, bankruptcy, name change, or loss of key personnel, it will immediately notify the City of the changes. Contractor also agrees to immediately notify the City of any condition that may jeopardize the scheduled delivery or fulfillment of Contractor's obligations to the City under this Contract.
10. Standard of Performance. Contractor shall perform in the manner and according to the standards currently observed by a competent practitioner of Contractor’s profession in California and in compliance with all requirements of this Contract. All products that Contractor delivers to City under this Contract must be prepared in a professional manner and conform to the standards of quality normally observed by a person currently practicing in Contractor’s profession.
Contractor shall assign only competent personnel to perform on its behalf under this Contract.
Contractor must notify the City in writing of any changes in Contractor’s staff assigned to perform under this Contract, before any performance by the new staff member. If the City, in its sole discretion, determines that any person assigned by the Contractor to perform under this Contract is not performing in accordance with the standards required herein, City shall provide notice to Contractor. Contractor shall immediately remove the assigned person upon receipt of the notice.
11. Performance or Different Terms and Conditions. The City's subsequent performance will not be construed as either acceptance of additional or different terms and conditions or a counteroffer by the Contractor, nor will the City's subsequent performance be viewed as acceptance of any provision of the Uniform Commercial Code, as adopted by any State, that is contrary to the terms and conditions contained herein. Contractor's performance shall conform to the applicable requirements of the Sacramento City Charter, Sacramento City Code, and all applicable State and Federal laws, and all the requirements of this Contract. The California Commercial Code will apply except as otherwise provided in the Contract.
12. Emergency/Declared Disaster Requirements. If an emergency is declared by the City Manager, or if any portion of the City is declared a disaster area by the county, state or federal government, this Contract may be subjected to increased usage. The Contractor shall serve the City during a declared emergency or disaster, subject to the same terms and conditions that apply during nonemergency / non-disaster conditions. The pricing set forth in this Contract will apply, without mark-up, regardless of the circumstances. If the Contractor is unable to fulfill the terms of the Contract because of a disruption in its chain of supply or service, then the Contractor shall provide proof of the disruption. Acceptable forms of proof will include a letter or notice from the Contractor's source stating the reason for the disruption
13. Term; Suspension; Termination.
A. This Contract is effective on the Effective Date and continues in effect until both parties have fully performed their respective obligations under this Contract, unless sooner terminated as provided herein.
B. City shall have the right at any time to suspend Contractor’s performance hereunder, in whole or in part, by giving a written notice of suspension to Contractor. Upon receipt of Form Approved by City Attorney 9-1-2020 Exhibit D - Page 5 such notice, Contractor shall immediately suspend its activities under this Contract, as specified in the notice.
C. The City shall have the right to terminate this Contract at any time by giving a written notice of termination to Contractor. Upon receipt of such notice, Contractor shall immediately cease performance under this Contract as specified in the notice. If the City terminates this Contract:
(1) Contractor shall, not later than five days after receipt of the notice, deliver all information prepared under this Contract to the City.
(2) The City shall pay Contractor the reasonable value of Goods or Services provided by Contractor before termination; provided, however, City shall not in any manner be liable for lost profits that might have been made by Contractor had the Contract not been terminated or had Contractor completed performance required by this Contract. Contractor shall furnish to the City any financial information requested by the City to determine the reasonable value of the Goods or Services provided by Contractor. The foregoing is cumulative and does not affect any right or remedy that City may have in law or equity.
14. Default by Contractor. In case of default by the Contractor, the City reserves the right to procure the Goods or Services from other sources and deduct from any monies due, or that may thereafter become due to the Contractor, the difference between the price named in this Contract and the actual cost to the City to procure from an alternate source. Prices paid by the City will be considered the prevailing market price at the time such purchase is made.
15. Guarantee and Warranty. Contractor assumes design responsibility and warrants the articles to be free from design defect and suitable for the purposes intended by City. If it is determined by the City that the Goods and Services do not meet the minimum requirements of this Contract, the Contractor shall correct the same at Contractor's sole expense.
A. The Contractor agrees that the Goods and Services furnished under this Contract will be covered by the industry standard or better warranty.
B. Contractor further warrants that the Goods and Services furnished under this Contract will be covered by the most favorable commercial warranties the Contractor gives to any customer for the Goods and Services and that the rights and remedies provided herein are in addition to and do not limit any rights afforded to the City at law or equity, or by any other clause of this Contract.
C. Any additional warranties provided by law, including the warranty of merchantability and warranty of fitness for a particular purpose will remain in full force and effect and inure to the City's benefit. City reserves all rights and remedies provided by law for breach of any applicable warranty related to the Goods and Services.
D. City's inspections, approval, acceptance, or payment for all or part of any Goods and Form Approved by City Attorney 9-1-2020 Exhibit D - Page 6 Services will in no way affect City's warranty rights.
16. Indemnity.
A. Indemnity: Contractor shall defend, hold harmless and indemnify CITY, its officers and employees, and each and every one of them, from and against all actions, damages, costs, liabilities, claims, demands, losses, judgments, penalties, costs and expenses of every type and description, whether arising on or off the site of the work or services performed under this Contract, including, any fees and costs reasonably incurred by City’s staff attorneys or outside attorneys and any fees and expenses incurred in enforcing this provision (hereafter collectively referred to as “Liabilities”), including Liabilities for personal injury or death, damage to personal, real or intellectual property, damage to the environment, contractual or other economic damages, or regulatory penalties, arising out of or in any way connected with performance of or failure to perform this Contract by Contractor, any subcontractor (including lower-tier subcontractors) or agent of Contractor, their respective officers and employees, and anyone else for whose acts or omissions any of them may be liable, whether or not the Liabilities (1) are caused in part by a party indemnified hereunder, or (ii) are litigated, settled or reduced to judgment; provided that the foregoing indemnity does not apply to liability for any damages for death or bodily injury to persons, injury to property, or other loss, damage, or expense, to the extent arising from the active negligence or willful misconduct of, or defects in design furnished by, City, its agents, servants, or independent contractors who are directly responsible to City, except when such agents, servants, or independent contractors are under the supervision and control of Contractor or any subcontractor (including lower-tier subcontractors) or agent of Contractor.
B. Insurance Policies; Intellectual Property Claims: The existence or acceptance by City of any of the insurance policies or coverages described in this Contract does not affect or limit any of City’s rights under this section, nor do the limits of any insurance limit the liability of Contractor hereunder. This section will not apply to any intellectual property claims, actions, lawsuits or other proceedings subject to the provisions of section 8.B., above.
C. Survival. The provisions of this section will survive any expiration or termination of this Contract.
17. Funding Availability.
A. This Contract is subject to the budget and fiscal provisions of the Charter and the Sacramento City Code.
B. The City’s payment obligation under this Contract will not exceed the amount of funds appropriated and approved for this Contract by the Sacramento City Council.
C. This Section shall govern over any other contrary provision of the Contract.
18. Equal Employment Opportunity. During the performance of this Contract, Contractor, for itself, its assignees and successors in interest, agrees as follows:
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 7 A. Compliance With Regulations: Contractor shall comply with all state, local, and federal anti-discrimination laws and regulations, including the Executive Order 11246 entitled “Equal Opportunity in Federal Employment,” as amended by Executive Order 11375, 12086, and 13672, and as supplemented in Department of Labor regulations (41 CFR Chapter 60), referred to collectively as the “Regulations.” B. Nondiscrimination: Contractor, with regards to the work performed by it after award and before completion of the work under this Contract, shall not discriminate on the ground of race, color, religion, sex, national origin, age, marital status, physical handicap or sexual orientation in selection and retention of subcontractors, including procurement of materials and leases of equipment. Contractor shall not participate either directly or indirectly in discrimination prohibited by the Regulations.
C. Solicitations for Subcontractors, Including Procurement of Materials and Equipment: In all solicitations either by competitive bidding or negotiations made by Contractor for work to be performed under any subcontract, including all procurement of materials or equipment, each potential subcontractor or supplier shall be notified by Contractor of Contractor’s obligation under this Contract and the Regulations relative to nondiscrimination on the ground of race, color, religion, sex, national origin, age, marital status, physical handicap or sexual orientation.
D. Information and Reports: Contractor shall provide all information and reports required by the Regulations, or by any orders or instructions issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the City to be pertinent to ascertain compliance with the Regulations, orders and instructions. Where any information required of Contractor is in the exclusive possession of another who fails or refuses to furnish this information, Contractor shall so certify to the City, and shall set forth what efforts it has made to obtain the information.
E. Sanctions for Noncompliance: In the event of noncompliance by Contractor with the nondiscrimination provisions of this Contract, the City shall impose any sanctions it determines are appropriate including:
(1) Withholding of payments to Contractor under this Contract until Contractor complies;
(2) Cancellation, termination, or suspension of this Contract, in whole or in part.
F. Incorporation of Provisions: Contractor shall include the provisions of subsections A through E, above, in every subcontract, including procurement of materials and leases of equipment, unless exempted by the Regulations, or by any order or instructions issued pursuant thereto. The City may direct Contractor to take specific actions to enforce these provisions, including sanctions for noncompliance; provided, however, that if Contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, Contractor may request that the City join such litigation to protect the City’s interests.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 8
19. Entire Agreement. This Contract, including all Exhibits and documents referenced herein, contains the entire agreement between the parties and supersedes whatever oral or written understanding they may have had before the execution of this Contract. No alteration to the terms of this Contract shall be valid unless approved in writing by Contractor, and by City, in accordance with applicable provisions of the Sacramento City Code.
20. Modification of Contract. The Contractor shall take no direction from any City employee that changes the executed terms and conditions of the Contract, including Exhibit A, or any change that impacts the cost, price, or schedule, before receiving a written, signed modification to the Contract.
21. Severability. If a court with jurisdiction rules that any portion of this Contract or its application to any person or circumstance is invalid or unenforceable, the remainder of this Contract will not be affected thereby and will remain valid and enforceable as written, to the greatest extent permitted by law.
22. Waiver. Neither the City’s acceptance of, or payment for, any Goods or Services, nor any waiver by either party of any default, breach or condition precedent, will be construed as a waiver of any provision of this Contract, nor as a waiver of any other default, breach or condition precedent or any other right hereunder. No waiver will be effective unless it is in writing and signed by the waiving party.
23. Governing Law. This Contract shall be governed, construed and enforced in accordance with the laws of the State of California, except that the rule of interpretation in California Civil Code section 1654 will not apply. Venue of any litigation arising out of this Contract will lie exclusively in the state trial court or Federal District Court located in Sacramento County in the State of California, and the parties consent to jurisdiction over their persons and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts.
24. Assignment Prohibited. The expertise and experience of Contractor are material considerations for this Contract. City has a strong interest in the qualifications and capability of the persons and entities that will fulfill the obligations imposed on Contractor under this Agreement. In recognition of this interest, Contractor shall not assign any right or obligation pursuant to this Contract without the written consent of the City. Any attempted or purported assignment without City’s written consent shall be void and of no effect.
25. Binding Effect. This Contract is binding on the heirs, executors, administrators, successors and assigns of the parties, subject to the provisions of Section 24, above.
26. Compliance with Laws. The Contractor shall be responsible for strict compliance with all applicable laws, regulations, court orders and other legal requirements applicable to the work to be accomplished under the Contract, including the California Occupational Safety and Health Act and all applicable safety orders issued by the Division of Occupational Safety and Health, Department of Industrial Relations, State of California, and all applicable requirements of Underwriters Laboratories and the Federal Communication Commission.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 9
27. Debarment Certification
A. Pursuant to 2 CFR, Part 200, and applicable Executive Orders, the City is restricted in its ability to contract with certain parties that are debarred, suspended, or otherwise excluded or ineligible for participating in Federal assistance programs or activities. By signing this Agreement, CONTRACTOR warrants and certifies under penalty of perjury under the laws of the State of California that Contractor, including any owner, partner, director, officer, or principal of the CONTRACTOR, or any person in a position with management responsibility or responsibility for the administration of federal funds:
(1) Is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal or state department/agency;
(2) Has not within a three-year period preceding this certification been convicted of or had a civil judgment rendered against it for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public transaction or contract (federal, state, or local); violation of federal or state antitrust statutes; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property, or other criminal felony; (3) Is not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state, or local) with commission of any of the offenses enumerated in paragraph (b) above; or
(4) Has not, within a three-year period preceding this certification, had one or more public contracts (federal, state, or local) or transactions terminated for cause or default. (5) Has not been notified, within a three-year period preceding this certification, been notified of any delinquent Federal taxes in an amount that exceeds $3,500 for which the liability remains unsatisfied. Federal taxes are considered delinquent if the tax liability has been finally determined and the taxpayer is delinquent in making payment, as defined in Section 52.209-5 of the Federal Acquisition Regulations.
B. CONTRACTOR further warrants and certifies that it shall not knowingly enter into any transaction with any subcontractor, material supplier, or vendor who is debarred, suspended, declared ineligible, or voluntarily excluded from covered transactions by any federal or state department/agency. Any exceptions to the warranties and certifications in this Section must be disclosed to the City.
C. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining Contractor’s responsibility. Disclosures must indicate to whom exceptions apply, the initiating agency, and dates of action.
D. City will review the Federal Government’s System for Award Management Exclusions maintained by the General Services Administration for eligibility, prior to the execution of this Agreement. The CONTRACTOR shall provide immediate written notice to the City if, at any time prior to execution, the CONTRACTOR learns this certification is erroneous or has become erroneous by reason of changed circumstances. If it is later determined that the Contractor’s warranties and certification in this Section were erroneous, the City may terminate this Agreement for default.
Form Approved by City Attorney 9-1-2020 Page 1
CONTRACT #: PRC003259
CONTRACT NAME: On-Call Electric Motor Repair Parts & Service CONTRACT PROJECT #: NA DEPARTMENT: Utilities
DIVISION: Engineering & Water Resources
CITY OF SACRAMENTO
GOODS AND NONPROFESSIONAL SERVICES AGREEMENT
THIS CONTRACT is made at Sacramento, California, by and between the CITY OF SACRAMENTO, a charter city and municipal corporation (“CITY”), and
Modesto Industrial Electric Co., Inc.
1417 Caldwell Avenue, Modesto, CA 95350
Phone: (209) 527-2800/E-mail: [email protected]
(“Contractor”), as of the Effective Date, as defined below.
The City and Contractor agree as follows:
1. Effective Date. This Contract shall be effective beginning the date it is fully executed by the duly authorized parties.
2. Contract Documents. This Contract includes each of the following documents, which are attached or incorporated by this reference (referred to collectively as the “Contract Documents”):
Invitation to Bid, Request for Qualifications, or Request for Proposals, and any Addenda Exhibit A - Technical Specifications
Exhibit B – Payment
Exhibit C – Insurance
Exhibit D – General Conditions
Purchase Orders
If there is a conflict between the terms and conditions of any document prepared or provided by the Contractor and made a part of this Contract and the other terms or conditions of the Contract, the other terms and conditions of the Contract control.
3. Goods and Services. Subject to the terms and conditions set forth in this Contract, Contractor shall provide to City the goods, materials, equipment or supplies (“Goods”) and the nonprofessional services (“Services”) described in Exhibit A (referred to collectively as “Goods and Services”).
Contractor will not be compensated for goods, materials, equipment, supplies, or nonprofessional services outside the scope of Exhibit A (“Additional Goods and Services”) unless, before providing Additional Goods and Services: (a) Contractor notifies City and City agrees that Form Approved by City Attorney 9-1-2020 Page 2
the Additional Goods and Services are outside the scope of Exhibit A; (b) Contractor estimates the additional compensation required for these Additional Goods and Services; and (c) City, after notice, approves in writing a Supplemental Contract specifying the Additional Goods and Services and the amount of additional compensation to be paid Contractor.
City will have no obligations whatsoever under this Contract or any Supplemental Contract, unless and until this Contract or any Supplemental Contract is approved by the City as required by the Sacramento City Code. As used in this Contract, the term “Goods and Services” includes both Goods and Services and Additional Goods and Services as applicable.
4. Payment. City shall pay Contractor at the times and in the manner set forth in Exhibit B.
Contractor shall submit all invoices to City in the manner specified in Exhibit B.
5. Facilities and Equipment. Except as set forth below, Contractor shall, at its sole cost and expense, furnish all facilities and equipment required for Contractor to perform this Contract. City shall furnish to Contractor only the facilities and equipment listed below, if any.
Access to City facilities will be provided, as needed.
6. Insurance. Contractor shall, at its sole cost and expense, maintain the insurance coverage described in the attached Exhibit C.
7. General Conditions. Contractor shall comply with the terms and conditions set forth in the attached Exhibit D.
8. Non-Discrimination in Employee Benefits. This Contract may be subject to Sacramento City Code chapter 3.54, Non- Discrimination in Employee Benefits by City Contractors. A summary of the requirements, entitled "Requirements of the Non-Discrimination in Employee Benefits Code (Equal Benefits Ordinance),” can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
Contractor acknowledges and represents that Contractor has read and understands the requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.54. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance.
Contractor's violation of Sacramento City Code chapter 3.54 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
9. Living Wage. This Contract may be subject to Sacramento City Code chapter 3.58, Living Wage.
A summary of the requirements, entitled "Living Wage Requirements", can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
The Living Wage Ordinance is applicable to certain contracts with the City in an amount of $250,000 or more (either initial value or total value after amendment) or if the total value of all Contractor's contracts with the City is $250,000 or more over a 12-month period.
Form Approved by City Attorney 9-1-2020 Page 3
Contractor acknowledges and represents that Contractor has read and understands the requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.58. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance.
Contractor shall require applicable subcontractors to fully comply with all applicable requirements of Sacramento City Code chapter 3.58 and include these requirements in all subcontracts covered by Sacramento City Code chapter 3.58.
Contractor's violation of Sacramento City Code chapter 3.58 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
In addition, for Services that constitute "Public Works" under California Labor Code Section 1720 et seq., if both prevailing wage and living wage requirements apply, Contractor shall pay the higher of the two rates.
10. Considering Criminal Conviction Information in the Employment Application Process. This Contract may be subject to the requirements of Sacramento City Code chapter 3.62, Procedures for Considering Criminal Conviction Information in the Employment Application Process. A summary of the requirements, entitled “Ban-The-Box Requirements,” can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
The Ban-The-Box Requirements are applicable to certain contracts with the City in an amount of $250,000 or more (either initial value or total value after amendment) or if the total value of all Contractor's contracts with the City is $250,000 or more over a 12-month period.
Contractor acknowledges and represents that Contractor has read and understands these requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.62. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance. Contractor shall require applicable subcontractors to fully comply with all applicable requirements of Sacramento City Code chapter 3.62 and include these requirements in all subcontracts covered by Sacramento City Code chapter 3.62.
Contractor's violation of Sacramento City Code chapter 3.62 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
11. Local Business Enterprise Program. The Local Business Enterprise Program Participation Requirements ("LBE Participation Requirements") are applicable to this Contract. A summary of the requirements, entitled "LBE Participation Requirements," can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
Form Approved by City Attorney 9-1-2020 Page 4
Contractor acknowledges and represents that Contractor has read and understands these requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.60. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance. Contractor shall require applicable subcontractors to fully comply with all applicable requirements of Sacramento City Code chapter 3.60 and include these requirements in all subcontracts covered by Sacramento City Code chapter 3.60.
Contractor's violation of Sacramento City Code chapter 3.60 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
12. Authority. The person signing this Contract for Contractor represents and warrants that he or she has read, understands, and agrees to all the Contract terms and is fully authorized to sign this Contract on behalf of the Contractor and to bind the Contractor to the performance of the Contract’s obligations.
[Signature Pages Follow Exhibits]
Form Approved by City Attorney 9-1-2020 Exhibit A - Page 1
EXHIBIT A
TECHNICAL SPECIFICATIONS
1. Representatives.
The CITY Representative for this Agreement is:
Ray Wilderman, Superintendent
Department of Utilities
1395 35th Avenue, Sacramento, CA 95822
Phone: (916) 808-8067/E-mail: [email protected] The CONTRACTOR Representative for this Agreement is:
Jordache Edeal, Assistant Production Manager
Modesto Industrial Electric Co., Inc.
1417 Caldwell Avenue, Modesto, CA 95350
Phone: (209) 527-2800/E-mail: [email protected]
Unless otherwise provided in this Contract, all Contractor questions and correspondence pertaining to this Contract must be addressed to the City Representative. All City questions and correspondence must be addressed to the Contractor Representative.
2. Scope of Services. Contractor shall provide Goods and Services to City as set forth in Attachment 1 to this Exhibit A.
3. Quantities. The quantities stated in Attachment 1 to this Exhibit A or Exhibit B are only estimates of the City's requirements. Contractor shall furnish Goods and Services at the prices quoted, in accordance with the City's available funds and actual needs as they occur throughout the term of this Contract.
The City is not required to purchase all of the Goods and Services listed, or to expend all available funding reflected in Exhibits A or B.
4. Time of Performance. The Goods and Services described in this Contract shall be provided for One Year. The City may extend this Contract for up to Four (4) additional one-year terms, for a maximum five-year term. Contractor shall provide the Goods and Services in accordance with any schedule in Attachment 1 to this Exhibit A.
5. Delivery and Inspection.
A. Delivery. Unless otherwise stated by the City in writing, delivery of Goods shall be made to the City address set forth in Exhibit A. All shipments are Free on Board (F.O.B.) destination with freight prepaid unless otherwise stated.
Form Approved by City Attorney 9-1-2020 Exhibit A - Page 2 Contractor assumes full responsibility for all transportation scheduling and costs, including costs for containers, packing, handling, and insurance. The City reserves the right to request and receive a copy of the freight bill of lading on all purchases shipped F.O.B. prepaid and added.
Time is of the essence in the delivery. If delivery cannot be made as specified in Exhibit A or as otherwise stated by the City, Contractor shall notify the City immediately to request instructions on how to proceed and shall not make delivery before receipt of instructions.
Periods of performance may be extended if, in the sole judgment of the City, the cause of delay justifies an extension.
B. Inspections: Goods will be inspected at the destination before acceptance by an authorized representative of the City for workmanship, appearance, proper functioning of all equipment and systems, and conformance to all other requirements of this Contract. The Goods shall be delivered to City free of any liens or encumbrances.
Notwithstanding the requirements for any City inspection and testing at the destination and except where specialized inspections or testing are specified for performance solely by the City, Contractor shall perform or have performed the inspections or tests required to substantiate that all Goods provided under the Contract conform to the drawings, specifications, and other Contract requirements, including, if applicable, the technical requirements for the manufacturer's part number(s) specified.
C. Deficiencies: If deficiencies in the Goods are discovered, Contractor shall correct and redeliver the Goods for re-inspection and acceptance. The period for payment and/or commencement of discount period (if applicable) does not begin until corrective action is complete. The cost of storing rejected Goods and the cost for shipping rejected Goods back to the Contractor or point of origin shall be paid by Contractor.
D. Inspection of Facilities: If requested by the City, Contractor shall provide the City with an inspection tour of Contractor's facilities where any Goods will be designed, manufactured, or assembled by Contractor.
6. Title/Risk of Loss. Title, ownership, and risk of loss or damage of the Goods remains with the Contractor until the Goods are delivered to, inspected, and accepted by the City, except when the loss or damage is due to the sole negligence of the City.
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 1
EXHIBIT B
PAYMENT
1. Contractor’s Compensation. The total of all fees paid to the Contractor for the provision of Goods and Services as set forth in Exhibit A, including any authorized reimbursable expenses, shall not exceed the total sum of $ 3,000,000. The payments specified in this Exhibit B shall be the only payments made to Contractor unless the City approves a Supplemental Contract.
2. Pricing. Contractor shall be paid as set forth in Exhibit A or Attachment 1 to this Exhibit B and any applicable special provisions included in the request for bids or proposals. If there is a conflict between Exhibit A or Exhibit B and the Special Provisions, Exhibit A or Exhibit B controls.
3. Contractor’s Reimbursable Expenses. “Reimbursable Expenses” are limited to actual expenditures of Contractor for expenses that are necessary for the proper satisfaction of the Contract and are only payable if specifically authorized in advance in writing by the City.
4. Miscellaneous Charges. No additional charges will be allowed unless specified in the Contract, including charges for transportation, fuel, containers, packing, or disposal.
5. Price Adjustments for Goods. Unless otherwise stated, prices are maximum for the term of the Contract. Price adjustments, if allowed under this Contract, must be requested in writing and accompanied by the required information to substantiate the request for price adjustment, as set forth in the Contract. Any allowable request for price adjustment must be delivered to the City at least 30 days before the adjusted prices become effective. No price adjustment allowable under this Contract will be granted retroactively. The City must also be given the benefit of any decline in prices. If any price increase is granted by the City, the increase shall not be greater than 3% from the prior year.
6. Purchase Orders. Unless otherwise stated, a purchase order will be issued to the Contractor on behalf of the City. Purchase orders will cite the quantity of Goods or Services requested, the purchase amount, and time of performance. If the time of performance of this Contract extends beyond the close of the City's fiscal year, another purchase order may be issued. No purchase order supersedes any provision of this Contract. Contractor shall not deliver Goods or provide Services until Contractor receives a purchase order or other written notification by the City.
7. Payments to Contractor. Contractor is responsible for supplying all documentation necessary to verify invoices to the City’s satisfaction.
A. Payment terms are NET 30 days, unless the Contractor offers a prompt payment discount that was accepted by the City or as otherwise stated in this Contract. Any prompt payment discounts will be computed from the date of acceptance by the City, or from the date an invoice is received, whichever occurs later.
B. Invoices must be submitted to either of the addresses specified below. (1) Email. Submit email invoices and any attachments to:
[email protected]
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 2 (2) Postal Mail. If emailing is not an option, mail to:
A/P Processing Center
City of Sacramento
915 I Street, Floor 4
Sacramento, CA 95814-2608
C. All invoices submitted by CONTRACTOR must contain the following information:
(1) Job/Project Name
(2) CITY’s current Purchase Order Number
(3) Contractor’s Invoice Number
(4) Date of Invoice Issuance
(5) Work Order Number (if applicable)
(6) CITY representative identified on the Purchase Order (7) Contractor’s remit address
(8) Itemized description of items billed under Invoice
(9) Itemized description of all authorized Reimbursable Expenses (10) Itemized description of all applicable taxes (sales, use, excise, etc.) (11) Amount of Invoice (itemize all authorized Reimbursable Expenses) (12) Total Billed to Date under Contract (if applicable) D. Items must be separated into Goods, Services, and Reimbursable Expenses. All applicable sales, use, excise, or similar taxes, including federal excise tax, must be itemized separately on the invoice. Invoices that do not conform to the format outlined above will be returned to Contractor for correction. City is not responsible for delays in payment to Contractor resulting from Contractor’s failure to comply with the invoice format described above.
E. For Goods only, a bill of lading number and weight of shipment will be shown for shipments on the Government Bill of Lading.
F. Unless otherwise specified in this Contract, partial payments will not be made by the City and payment will not be due until the completion of the Goods order. No payment precludes the City’s right to inspect. Requests for payment status should be addressed to the City Representative for this Contract.
8. Additional Goods and Services. Additional Goods and Services shall be provided only when a Supplemental Contract authorizing the Additional Goods and Services is approved in writing by the City in accordance with the City’s contract amendment procedures. The City reserves the right to perform any Additional Services with its own staff or to retain other contractors to perform the Additional Services.
9. Billing Disputes. The burden of proof shall be on the Contractor to establish the accuracy of its invoices. Upon presentation and verification of the information provided by Contractor, the City will review all records and make a final determination and present its finding to Contractor.
10. Accounting Records of Contractor. During performance of this Contract and for a period of three Form Approved by City Attorney 9-1-2020 Exhibit B - Page 3 years after completion of performance, Contractor shall maintain all accounting and financial records related to this Contract, in accordance with generally accepted accounting practices, including records of Contractor’s costs for performance under this Contract and records of Contractor’s Reimbursable Expenses. Contractor shall keep and make records available for inspection and audit by representatives of the City upon reasonable written notice.
11. Sales Tax Requirements. The City is not exempt from paying sales tax. Sales tax must be shown on the invoice as a separate line item.
12. Use Tax Requirements. On out-of-state purchases, Contractor shall list its Use Tax Permit Number (if applicable) on the invoice, which authorizes Contractor to charge and collect California Sales Tax. The Purchase Order will include sales tax, if applicable to the purchase, regardless of whether an out-of-state Contractor collects California State sales tax or not.
The City shall pay Use Tax directly to the California Department of Tax and Fee Administration ("CDTFA") if the out-of-state Contractor is not required to collect California Sales Tax. During the performance of this Contract, Contractor, for itself, its assignees and successors in interest, agrees as follows:
A. Use Tax Direct Payment Permit: For all leases and purchases of tangible personal property used to perform the Contract and shipped from outside California, Contractor and any subcontractor(s) leasing or purchasing such tangible personal property shall obtain a Use Tax Direct Payment Permit from the CDTFA in accordance with the applicable CDTFA criteria and requirements.
B. Sellers Permit: For any construction contract and any construction subcontract in the amount of $5,000,000 or more, Contractor and the subcontractor(s) shall obtain sellers permits from the CDTFA and shall register the jobsite as the place of business for the purpose of allocating local sales and use tax to the City. Contractor and its subcontractors shall remit the self-accrued use tax to the CDTFA and shall provide a copy of each remittance to the City.
C. The above provisions apply in all instances unless prohibited by the funding source for the Contract.
13. Excise Tax Requirements. The City of Sacramento is exempt from the payment of Federal Excise Tax. An exemption certificate will be submitted to Contractor upon request. If Federal Excise Tax is applicable to the transaction, it must be so stated and excluded from the price.
14. Tax Payments. Contractor shall pay, when and as due, any and all taxes incurred as a result of Contractor’s compensation hereunder, including estimated taxes, and shall provide CITY with proof of the payment upon request. Contractor hereby agrees to indemnify CITY for any claims, losses, costs, fees, liabilities, damages or injuries suffered by CITY arising out of Contractor’s breach of this section.
15. Public Works Requirements. [To be completed by the City Representative:] The services provided under this Contract include [check one if applicable]:
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 4 ________ Construction work in an amount exceeding $25,000; ________ Land Surveying, material testing, or inspection services provided for a City construction project during the design, pre-construction, construction, or post-construction phases of the project; or
________ Alteration, demolition, repair, or maintenance work in an amount exceeding $15,000.
If any of the lines is checked above, this Contract includes “Public Work” under the California Labor Code and is subject to the following requirements:
A. Payment of Prevailing Wages: Contractor and any subcontractor(s) performing any Public Work shall comply with the provisions of Sacramento City Code section 3.60.180 and applicable provisions of the California Labor Code, which require, among other things, that Contractor and all subcontractors pay not less than the prevailing rate of wages, as determined by the Director of the California Department of Industrial Relations (“DIR”) in accordance with California Labor Code section 1773. Contractor and every subcontractor shall maintain payroll records and submit certified payrolls and other labor compliance documentation electronically when and as required by CITY. In addition, Labor Code Section 1771.4 requires the Contractor and any subcontractor performing any Public Work to furnish electronic payroll records directly to the Labor Commissioner. Contractor shall include these requirements in every subcontract.
This Agreement is subject to compliance monitoring and enforcement by the DIR, as specified in California Labor Code section 1771.4. The Contractor and any subcontractor will be subject to withholding and penalties for violation of prevailing wage requirements in accordance with applicable law, including Labor Code Sections 1726, 1741, 1771.5, and 1775, and City Code Section 3.60.180. Questions regarding the City’s Labor Compliance Program should be directed to the City Representative.
B. DIR Registration: California Labor Code Section 1725.5 requires the Contractor and all subcontractors performing Public Works services to be currently registered with the DIR, as specified in California Labor Code Section 1725.5. California Labor Code Section 1771.1 provides that a contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal (subject to the requirements of Section 4104 of the California Public Contract Code), or engage in the performance of any contract for Public Work, unless currently registered and qualified to perform Public Work in accordance with California Labor Code Section 1725.5.
Further information can be found on DIR’s website at http://www.dir.ca.gov/PublicWorks/Contractors.html. The above summary is provided solely for informational purposes and does not in any way affect the Contractor’s and subcontractors’ obligation to comply in all respects with all other applicable laws and regulations. The Contractor shall disseminate these provisions to all subcontractors.
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 5 Before the performance of work by Contractor or any subcontractor(s) under this Contract, Contractor shall furnish Contractor’s and any subcontractors’ current DIR registration number(s). The Contractor’s current DIR registration number and the current DIR registration number of all subcontractors will be listed on the Subcontractor and LBE Participation Verification Form, incorporated herein.
C. Workers’ Compensation Certification. In accordance with California Labor Code Section 1861, by signing this Contract, Contractor acknowledges and represents that Contractor is aware of the provisions of section 3700 of the California Labor Code which requires every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and that Contractor will comply with the provisions of the Labor Code before commencing performance under this Contract.
D. Apprentices. If this Contract is for the performance of any Public Work, and the amount of the Contract is $30,000 or more, the Contractor and any subcontractors performing any Public Work under this Contract must comply with and be subject to enforcement under, the provisions of Sacramento City Code Section 3.60.190, Section 1777.5 et seq. of the California Labor Code, and implementing regulations set forth in Title 8 of the California Code of Regulations, governing the employment of apprentices. The Contractor and any subcontractors performing Public Work will be subject to penalties for apprenticeship violations in accordance with Labor Code Section 1777.7.
E. Working Hours. If this Contract is for the performance of any Public Work, Contractor and any subcontractors performing any Public Work under this Contract must comply with and be subject to enforcement under, the provisions of Sacramento City Code Section 3.60.180 and California Labor Code Section 1810 et seq., governing the working hours of employees performing Public Work.
F. Failure to Comply with Labor Compliance. If all applicable labor compliance requirements are not met, the City will have the right to withhold or reject a payment request and/or invoice, in whole or in part, without in any way relieving Contractor or its subcontractors of any obligations under this Contract.
G. Subcontractors. The Contractor shall include these provisions A through F in every subcontract or sub-agreement for any subcontractors performing work under this Contract.
Form Approved by City Attorney 9-1-2020 Exhibit C - Page 1
EXHIBIT C
INSURANCE
1. Insurance Requirements. During the entire term of this Contract, Contractor shall maintain the insurance coverage described in the Insurance Terms below. Full compensation for all premiums that Contractor is required to pay for the insurance coverage described herein shall be included in the compensation specified under this Contract. No additional compensation will be provided for Contractor's insurance premiums. Any available insurance proceeds in excess of the specified minimum limits and coverages shall be available to the City.
Contractor's liability to the City is not in any way limited to or affected by the amount of insurance coverage required or carried by the Contractor in connection with this Contract.
2. General Liability Minimum Scope and Limits of Insurance Coverage. Commercial General Liability Insurance is required providing coverage at least as broad as ISO CGL Form 00 01 on an occurrence basis for bodily injury, including death, of one or more persons, property damage, and personal injury, arising out of activities performed by or on behalf of the Contractor and subcontractors, products and completed operations of Contractor and subcontractors, and premises owned, leased, or used by Contractor and subcontractors, with limits of not less than one million dollars ($1,000,000) per occurrence. The policy shall provide contractual liability and products and completed operations coverage for the term of the policy.
The City, its officials, employees and volunteers shall be covered by policy terms or endorsement as additional insureds as respects general liability arising out of: activities performed by or on behalf of Contractor and subcontractors; products and completed operations of Contractor and subcontractors; and premises owned, leased, or used by Contractor and subcontractors.
3. Automobile Liability Minimum Scope and Limits of Insurance Coverage. (Check the applicable provision.)
_X_ Automobile Liability Insurance is required providing coverage at least as broad as ISO Form CA 00 01 for bodily injury, including death, of one or more persons, property damage and personal injury, with limits of not less than one million dollars ($1,000,000) per occurrence. The policy shall provide coverage for owned, non-owned and/or hired autos as appropriate to the operations of the Contractor.
The City, its officials, employees and volunteers shall be covered by policy terms or endorsement as additional insureds as respects auto liability. ___ No automobile liability insurance is required, and by signing this Contract, Contractor certifies as follows:
“Contractor certifies that a motor vehicle will not be used in the performance of any work or services under this agreement. If, however, Contractor does transport items under this Contract, or this Contract is amended to require any employees of Contractor to use a Form Approved by City Attorney 9-1-2020 Exhibit C - Page 2 vehicle to perform services under the Contract, Contractor understands that it must maintain and provide evidence of Automobile Liability Insurance providing coverage at least as broad as ISO Form CA 00 01 for bodily injury, including death, of one or more persons, property damage and personal injury, with limits of not less than one million dollars ($1,000,000) per occurrence. The policy shall provide coverage for owned, nonowned and/or hired autos as appropriate to the operations of the Contractor.”
4. Excess Insurance. The minimum limits of insurance required above may be satisfied by a combination of primary and umbrella or excess insurance coverage, provided that any umbrella or excess insurance contains, or is endorsed to contain, a provision that it will apply on a primary basis for the benefit of the City, and any insurance or self-insurance maintained by City, its officials, employees, or volunteers will be in excess of Contractor's umbrella or excess coverage and will not contribute to it.
5. Workers’ Compensation Minimum Scope and Limits of Insurance Coverage. (Check the applicable provision.)
_X_ Workers’ Compensation Insurance is required with statutory limits and Employers' Liability Insurance with limits of not less than one million dollars ($1,000,000). The Workers' Compensation policy shall include a waiver of subrogation in favor of the City.
___ No work or services will be performed on or at CITY facilities or CITY Property, therefore a Workers’ Compensation waiver of subrogation in favor of the CITY is not required. ___ No Workers’ Compensation insurance is required, and by signing this Contract, Contractor certifies as follows:
“Contractor certifies that its business has no employees, and that it does not employ anyone, and is therefore exempt from the legal requirements to provide Workers' Compensation insurance. If, however, Contractor hires any employee during the term of this Contract, Contractor understands that Workers’ Compensation with statutory limits and Employer’s Liability Insurance with a limit of not less than one million dollars ($1,000,000) is required. The Workers’ Compensation policy will include a waiver of subrogation in favor of the City.”
6. Other Insurance Provisions. The policies must contain, or be endorsed to contain, the following provisions:
A. Contractor's insurance coverage, including excess insurance, shall be primary insurance as respects the City, its officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officials, employees or volunteers will be in excess of Contractor's insurance and will not contribute with it.
B. Any failure to comply with reporting provisions of the policies will not affect coverage provided to the City, its officials, employees or volunteers.
C. Coverage shall state that Contractor's insurance applies separately to each insured Form Approved by City Attorney 9-1-2020 Exhibit C - Page 3 against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
D. Contractor shall provide the City with 30 days written notice of cancellation or material change in the policy language or terms.
7. Acceptability of Insurance. Insurance must be placed with insurers with a Bests' rating of not less than A:VI. Self-insured retentions, policy terms or other variations that do not comply with the requirements of this Exhibit C must be declared to and approved by the City in writing before execution of this Contract.
8. Verification of Coverage.
A. Contractor shall furnish City with certificates and required endorsements evidencing the insurance required. Certificates of insurance must be signed by an authorized representative of the insurance carrier. Copies of policies shall be delivered to the City Representative on demand.
B. Contractor shall send all insurance certificates and endorsements, including policy renewals, during the term of this Contract directly to:
City of Sacramento
c/o Exigis LLC
PO Box 947
Murrieta, CA 92564
C. Certificate Holder must be listed as:
City of Sacramento
c/o Exigis LLC
PO Box 947
Murrieta, CA 92564
D. The City may withdraw its offer of Contract or cancel this Contract if the certificates of insurance and endorsements required have not been provided before execution of this Contract. The City may withhold payments to Contractor and/or cancel the Contract if the insurance is canceled or Contractor otherwise ceases to be insured as required herein.
9. Subcontractor Insurance Coverage. Contractor shall require and verify that all subcontractors maintain insurance coverage that meets the minimum scope and limits of insurance coverage specified in this Exhibit C.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 1
EXHIBIT D
GENERAL CONDITIONS
1. Independent Contractor. A. It is understood and agreed that Contractor (including Contractor’s employees) is an independent contractor and that no relationship of employer-employee exists between the parties hereto for any purpose whatsoever. Neither Contractor nor Contractor’s assigned personnel will be entitled to any benefits payable to CITY employees. CITY is not required to make any deductions or withholdings from the compensation payable to Contractor under the provisions of this Contract, and Contractor will be issued a Form 1099 for its services hereunder. As an independent contractor, Contractor hereby agrees to indemnify and hold CITY harmless from any and all claims that may be made against CITY based upon any contention by any of Contractor’s employees or by any third party, including any state or federal agency, that an employer-employee relationship or a substitute therefor exists for any purpose whatsoever by reason of this Contract or by reason of the nature and/or performance under this Contract.
B. It is further understood and agreed by the parties that Contractor, in the performance of its obligations, is subject to the City’s control and direction as to the designation of tasks to be performed and the results to be accomplished under this Contract, but not as to the means, methods, or sequence used by Contractor for accomplishing the results. To the extent that Contractor obtains permission to, and does, use CITY facilities, space, equipment or support services in the performance of this Contract, this use will be at the Contractor’s sole discretion based on the Contractor’s determination that the use will promote Contractor’s efficiency and effectiveness. Except as may be specifically provided elsewhere in this Contract, the CITY does not require that Contractor use CITY facilities, equipment or support services or work in CITY locations in the performance of this Contract. As used in this Contract, "sole discretion" or "sole judgment" means that the party authorized to exercise its discretion or judgment may do so based on an unfettered assessment of its own interests, without considering how its decision affects the other party, and unconstrained by the implied covenant of good faith and fair dealing.
C. If, in the performance of this Contract, any third persons are employed by Contractor, such persons will be entirely and exclusively under the direction, supervision, and control of Contractor. Except as otherwise provided in this Contract, all terms of employment, including hours, wages, working conditions, discipline, hiring, and discharging, or any other terms of employment or requirements of law, shall be determined by Contractor.
It is further understood and agreed that Contractor will issue W-2 or 1099 Forms for income and employment tax purposes for all Contractor’s assigned personnel and subcontractors.
D. The provisions of this section will survive any expiration or termination of this Contract.
Nothing in this Contract creates an exclusive relationship between CITY and Contractor.
Contractor may represent, perform services for, or be employed by any additional persons or companies so long as Contractor does not violate the provisions of Section 5, below.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 2
2. Licenses; Permits, Etc. Contractor represents and warrants that Contractor has, and shall maintain at all times during the term of this Contract at its sole cost and expense, all licenses, permits, qualifications, and approvals of any nature that are legally required for Contractor to practice its profession or fulfill the terms of this Contract, including a City Business Operations Tax Certificate and any required certification issued by the California Secretary of State.
3. Time. Time is off the essence in the performance of this Contract. Contractor shall devote the necessary time and effort to its performance under this Contract. Neither party will be considered in default of this Contract, to the extent that party’s performance is prevented or delayed by any cause, present or future, that is beyond the reasonable control of that party.
4. Contractor Not Agent. Except as City may specify in writing, Contractor and Contractor’s personnel have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor and Contractor’s personnel shall have no authority, express or implied, to bind City to any obligations whatsoever.
5. Conflicts of Interest. Contractor covenants that neither it, nor any officer or principal of its firm, has or will acquire any interest, directly or indirectly, that would conflict in any manner with the City’s interests or that would in any way hinder Contractor’s performance under this Contract.
Contractor further covenants that in the performance of this Contract, no person having any such interest will be employed by it as an officer, employee, agent or subcontractor, without the City’s written consent.
Contractor agrees to avoid conflicts of interest or the appearance of any conflicts of interest with the City’s interests during the performance of this Contract. If Contractor is or employs a former officer or employee of the City, Contractor and any former City officer or employee shall comply with the provisions of Sacramento City Code Section 2.16.090 pertaining to appearances before the City Council or any City department, board, commission, or committee.
6. Hazardous Substances. "Hazardous Substances" means any substance, material, waste, or other pollutant or contaminant that is or becomes designated, classified, or regulated as hazardous or toxic under any law, regulation, rule, order, decree, or other governmental requirement now in effect or later enacted. If Contractor is shipping Hazardous Substances, Contractor must supply a Safety Data Sheet ("SDS") with the first shipment of Hazardous Substances to each City location receiving the Hazardous Substances. If the content of an SDS is revised, Contractor must provide a revised SDS to each City location receiving Hazardous Substances.
7. Confidentiality of City Information. During performance of this Contract, Contractor may gain access to and use City information regarding inventions, machinery, products, prices, apparatus, costs, discounts, future plans, business affairs, governmental affairs, processes, trade secrets, technical matters, systems, facilities, customer lists, product design, copyright, data, and other vital information (hereafter collectively referred to as “City Information”) that are valuable, special and unique assets of the City.
Contractor agrees to protect all City Information and treat it as strictly confidential, and further agrees that Contractor shall not at any time, either directly or indirectly, divulge, disclose or Form Approved by City Attorney 9-1-2020 Exhibit D - Page 3 communicate in any manner any City Information to any third party without the City’s prior written consent.
In addition, Contractor must comply with all City policies governing the use of the CITY network and technology systems, as set forth in applicable provisions of the City of Sacramento Administrative Policy Instructions # 30. A violation by Contractor of this section is a material violation of this Contract and shall justify legal and equitable relief.
8. Contractor Information.
A. City shall have full ownership and control, including ownership of any copyrights, of all information prepared, produced, or provided by Contractor under this Contract. In this Contract, the term “information” means and includes: any and all work product, submittals, reports, plans, specifications, and other deliverables consisting of documents, writings, handwritings, typewriting, printing, photostatting, photographing, computer models, and any other computerized data and every other means of recording any form of information, communications, or representation, including letters, works, pictures, drawings, sounds, or symbols, or any combination thereof. Contractor shall not be responsible for any unauthorized modification or use of such information for other than its intended purpose by City.
B. Contractor shall fully defend, indemnify and hold harmless City, its officers and employees, and each of them, from and against any and all claims, actions, lawsuits or other proceedings alleging that all or any part of the information prepared, produced, or provided by Contractor under this Contract infringes upon any third party’s trademark, trade name, copyright, patent or other intellectual property rights. City shall make reasonable efforts to notify Contractor not later than ten days after City is served with any such claim, action, lawsuit or other proceeding. However, City’s failure to provide notice within the ten-day period does not relieve Contractor of its obligations hereunder, which survive any termination or expiration of this Contract.
C. All proprietary and other information received from Contractor by City, whether received in connection with Contractor’s proposal to City or in connection with Contractor’s performance, will be disclosed upon receipt of a request for disclosure, in accordance with the California Public Records Act; provided, however, that, if any information is set apart and clearly marked “trade secret” when it is provided to City, City shall give notice to Contractor of any request for the disclosure of such information. The Contractor will then have five days from the date it receives notice to petition the court for a protective order to prevent the disclosure of the information. The Contractor shall have sole responsibility for defense of the actual “trade secret” designation of such information.
D. The parties understand and agree that any failure by Contractor to respond to the notice provided by City and seek a protective order, in accordance with the provisions of subsection C, above, constitutes a complete waiver by Contractor of any rights regarding the information designated “trade secret” by Contractor, and the information will be disclosed by City in accordance with the Public Records Act.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 4
9. Notification of Material Changes in Business. Contractor agrees that if it experiences any material changes in its business, including a reorganization, refinancing, restructuring, leveraged buyout, bankruptcy, name change, or loss of key personnel, it will immediately notify the City of the changes. Contractor also agrees to immediately notify the City of any condition that may jeopardize the scheduled delivery or fulfillment of Contractor's obligations to the City under this Contract.
10. Standard of Performance. Contractor shall perform in the manner and according to the standards currently observed by a competent practitioner of Contractor’s profession in California and in compliance with all requirements of this Contract. All products that Contractor delivers to City under this Contract must be prepared in a professional manner and conform to the standards of quality normally observed by a person currently practicing in Contractor’s profession.
Contractor shall assign only competent personnel to perform on its behalf under this Contract.
Contractor must notify the City in writing of any changes in Contractor’s staff assigned to perform under this Contract, before any performance by the new staff member. If the City, in its sole discretion, determines that any person assigned by the Contractor to perform under this Contract is not performing in accordance with the standards required herein, City shall provide notice to Contractor. Contractor shall immediately remove the assigned person upon receipt of the notice.
11. Performance or Different Terms and Conditions. The City's subsequent performance will not be construed as either acceptance of additional or different terms and conditions or a counteroffer by the Contractor, nor will the City's subsequent performance be viewed as acceptance of any provision of the Uniform Commercial Code, as adopted by any State, that is contrary to the terms and conditions contained herein. Contractor's performance shall conform to the applicable requirements of the Sacramento City Charter, Sacramento City Code, and all applicable State and Federal laws, and all the requirements of this Contract. The California Commercial Code will apply except as otherwise provided in the Contract.
12. Emergency/Declared Disaster Requirements. If an emergency is declared by the City Manager, or if any portion of the City is declared a disaster area by the county, state or federal government, this Contract may be subjected to increased usage. The Contractor shall serve the City during a declared emergency or disaster, subject to the same terms and conditions that apply during nonemergency / non-disaster conditions. The pricing set forth in this Contract will apply, without mark-up, regardless of the circumstances. If the Contractor is unable to fulfill the terms of the Contract because of a disruption in its chain of supply or service, then the Contractor shall provide proof of the disruption. Acceptable forms of proof will include a letter or notice from the Contractor's source stating the reason for the disruption
13. Term; Suspension; Termination.
A. This Contract is effective on the Effective Date and continues in effect until both parties have fully performed their respective obligations under this Contract, unless sooner terminated as provided herein.
B. City shall have the right at any time to suspend Contractor’s performance hereunder, in whole or in part, by giving a written notice of suspension to Contractor. Upon receipt of Form Approved by City Attorney 9-1-2020 Exhibit D - Page 5 such notice, Contractor shall immediately suspend its activities under this Contract, as specified in the notice.
C. The City shall have the right to terminate this Contract at any time by giving a written notice of termination to Contractor. Upon receipt of such notice, Contractor shall immediately cease performance under this Contract as specified in the notice. If the City terminates this Contract:
(1) Contractor shall, not later than five days after receipt of the notice, deliver all information prepared under this Contract to the City.
(2) The City shall pay Contractor the reasonable value of Goods or Services provided by Contractor before termination; provided, however, City shall not in any manner be liable for lost profits that might have been made by Contractor had the Contract not been terminated or had Contractor completed performance required by this Contract. Contractor shall furnish to the City any financial information requested by the City to determine the reasonable value of the Goods or Services provided by Contractor. The foregoing is cumulative and does not affect any right or remedy that City may have in law or equity.
14. Default by Contractor. In case of default by the Contractor, the City reserves the right to procure the Goods or Services from other sources and deduct from any monies due, or that may thereafter become due to the Contractor, the difference between the price named in this Contract and the actual cost to the City to procure from an alternate source. Prices paid by the City will be considered the prevailing market price at the time such purchase is made.
15. Guarantee and Warranty. Contractor assumes design responsibility and warrants the articles to be free from design defect and suitable for the purposes intended by City. If it is determined by the City that the Goods and Services do not meet the minimum requirements of this Contract, the Contractor shall correct the same at Contractor's sole expense.
A. The Contractor agrees that the Goods and Services furnished under this Contract will be covered by the industry standard or better warranty.
B. Contractor further warrants that the Goods and Services furnished under this Contract will be covered by the most favorable commercial warranties the Contractor gives to any customer for the Goods and Services and that the rights and remedies provided herein are in addition to and do not limit any rights afforded to the City at law or equity, or by any other clause of this Contract.
C. Any additional warranties provided by law, including the warranty of merchantability and warranty of fitness for a particular purpose will remain in full force and effect and inure to the City's benefit. City reserves all rights and remedies provided by law for breach of any applicable warranty related to the Goods and Services.
D. City's inspections, approval, acceptance, or payment for all or part of any Goods and Form Approved by City Attorney 9-1-2020 Exhibit D - Page 6 Services will in no way affect City's warranty rights.
16. Indemnity.
A. Indemnity: Contractor shall defend, hold harmless and indemnify CITY, its officers and employees, and each and every one of them, from and against all actions, damages, costs, liabilities, claims, demands, losses, judgments, penalties, costs and expenses of every type and description, whether arising on or off the site of the work or services performed under this Contract, including, any fees and costs reasonably incurred by City’s staff attorneys or outside attorneys and any fees and expenses incurred in enforcing this provision (hereafter collectively referred to as “Liabilities”), including Liabilities for personal injury or death, damage to personal, real or intellectual property, damage to the environment, contractual or other economic damages, or regulatory penalties, arising out of or in any way connected with performance of or failure to perform this Contract by Contractor, any subcontractor (including lower-tier subcontractors) or agent of Contractor, their respective officers and employees, and anyone else for whose acts or omissions any of them may be liable, whether or not the Liabilities (1) are caused in part by a party indemnified hereunder, or (ii) are litigated, settled or reduced to judgment; provided that the foregoing indemnity does not apply to liability for any damages for death or bodily injury to persons, injury to property, or other loss, damage, or expense, to the extent arising from the active negligence or willful misconduct of, or defects in design furnished by, City, its agents, servants, or independent contractors who are directly responsible to City, except when such agents, servants, or independent contractors are under the supervision and control of Contractor or any subcontractor (including lower-tier subcontractors) or agent of Contractor.
B. Insurance Policies; Intellectual Property Claims: The existence or acceptance by City of any of the insurance policies or coverages described in this Contract does not affect or limit any of City’s rights under this section, nor do the limits of any insurance limit the liability of Contractor hereunder. This section will not apply to any intellectual property claims, actions, lawsuits or other proceedings subject to the provisions of section 8.B., above.
C. Survival. The provisions of this section will survive any expiration or termination of this Contract.
17. Funding Availability.
A. This Contract is subject to the budget and fiscal provisions of the Charter and the Sacramento City Code.
B. The City’s payment obligation under this Contract will not exceed the amount of funds appropriated and approved for this Contract by the Sacramento City Council.
C. This Section shall govern over any other contrary provision of the Contract.
18. Equal Employment Opportunity. During the performance of this Contract, Contractor, for itself, its assignees and successors in interest, agrees as follows:
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 7 A. Compliance With Regulations: Contractor shall comply with all state, local, and federal anti-discrimination laws and regulations, including the Executive Order 11246 entitled “Equal Opportunity in Federal Employment,” as amended by Executive Order 11375, 12086, and 13672, and as supplemented in Department of Labor regulations (41 CFR Chapter 60), referred to collectively as the “Regulations.” B. Nondiscrimination: Contractor, with regards to the work performed by it after award and before completion of the work under this Contract, shall not discriminate on the ground of race, color, religion, sex, national origin, age, marital status, physical handicap or sexual orientation in selection and retention of subcontractors, including procurement of materials and leases of equipment. Contractor shall not participate either directly or indirectly in discrimination prohibited by the Regulations.
C. Solicitations for Subcontractors, Including Procurement of Materials and Equipment: In all solicitations either by competitive bidding or negotiations made by Contractor for work to be performed under any subcontract, including all procurement of materials or equipment, each potential subcontractor or supplier shall be notified by Contractor of Contractor’s obligation under this Contract and the Regulations relative to nondiscrimination on the ground of race, color, religion, sex, national origin, age, marital status, physical handicap or sexual orientation.
D. Information and Reports: Contractor shall provide all information and reports required by the Regulations, or by any orders or instructions issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the City to be pertinent to ascertain compliance with the Regulations, orders and instructions. Where any information required of Contractor is in the exclusive possession of another who fails or refuses to furnish this information, Contractor shall so certify to the City, and shall set forth what efforts it has made to obtain the information.
E. Sanctions for Noncompliance: In the event of noncompliance by Contractor with the nondiscrimination provisions of this Contract, the City shall impose any sanctions it determines are appropriate including:
(1) Withholding of payments to Contractor under this Contract until Contractor complies;
(2) Cancellation, termination, or suspension of this Contract, in whole or in part.
F. Incorporation of Provisions: Contractor shall include the provisions of subsections A through E, above, in every subcontract, including procurement of materials and leases of equipment, unless exempted by the Regulations, or by any order or instructions issued pursuant thereto. The City may direct Contractor to take specific actions to enforce these provisions, including sanctions for noncompliance; provided, however, that if Contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, Contractor may request that the City join such litigation to protect the City’s interests.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 8
19. Entire Agreement. This Contract, including all Exhibits and documents referenced herein, contains the entire agreement between the parties and supersedes whatever oral or written understanding they may have had before the execution of this Contract. No alteration to the terms of this Contract shall be valid unless approved in writing by Contractor, and by City, in accordance with applicable provisions of the Sacramento City Code.
20. Modification of Contract. The Contractor shall take no direction from any City employee that changes the executed terms and conditions of the Contract, including Exhibit A, or any change that impacts the cost, price, or schedule, before receiving a written, signed modification to the Contract.
21. Severability. If a court with jurisdiction rules that any portion of this Contract or its application to any person or circumstance is invalid or unenforceable, the remainder of this Contract will not be affected thereby and will remain valid and enforceable as written, to the greatest extent permitted by law.
22. Waiver. Neither the City’s acceptance of, or payment for, any Goods or Services, nor any waiver by either party of any default, breach or condition precedent, will be construed as a waiver of any provision of this Contract, nor as a waiver of any other default, breach or condition precedent or any other right hereunder. No waiver will be effective unless it is in writing and signed by the waiving party.
23. Governing Law. This Contract shall be governed, construed and enforced in accordance with the laws of the State of California, except that the rule of interpretation in California Civil Code section 1654 will not apply. Venue of any litigation arising out of this Contract will lie exclusively in the state trial court or Federal District Court located in Sacramento County in the State of California, and the parties consent to jurisdiction over their persons and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts.
24. Assignment Prohibited. The expertise and experience of Contractor are material considerations for this Contract. City has a strong interest in the qualifications and capability of the persons and entities that will fulfill the obligations imposed on Contractor under this Agreement. In recognition of this interest, Contractor shall not assign any right or obligation pursuant to this Contract without the written consent of the City. Any attempted or purported assignment without City’s written consent shall be void and of no effect.
25. Binding Effect. This Contract is binding on the heirs, executors, administrators, successors and assigns of the parties, subject to the provisions of Section 24, above.
26. Compliance with Laws. The Contractor shall be responsible for strict compliance with all applicable laws, regulations, court orders and other legal requirements applicable to the work to be accomplished under the Contract, including the California Occupational Safety and Health Act and all applicable safety orders issued by the Division of Occupational Safety and Health, Department of Industrial Relations, State of California, and all applicable requirements of Underwriters Laboratories and the Federal Communication Commission.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 9
27. Debarment Certification
A. Pursuant to 2 CFR, Part 200, and applicable Executive Orders, the City is restricted in its ability to contract with certain parties that are debarred, suspended, or otherwise excluded or ineligible for participating in Federal assistance programs or activities. By signing this Agreement, CONTRACTOR warrants and certifies under penalty of perjury under the laws of the State of California that Contractor, including any owner, partner, director, officer, or principal of the CONTRACTOR, or any person in a position with management responsibility or responsibility for the administration of federal funds:
(1) Is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal or state department/agency;
(2) Has not within a three-year period preceding this certification been convicted of or had a civil judgment rendered against it for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public transaction or contract (federal, state, or local); violation of federal or state antitrust statutes; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property, or other criminal felony; (3) Is not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state, or local) with commission of any of the offenses enumerated in paragraph (b) above; or
(4) Has not, within a three-year period preceding this certification, had one or more public contracts (federal, state, or local) or transactions terminated for cause or default. (5) Has not been notified, within a three-year period preceding this certification, been notified of any delinquent Federal taxes in an amount that exceeds $3,500 for which the liability remains unsatisfied. Federal taxes are considered delinquent if the tax liability has been finally determined and the taxpayer is delinquent in making payment, as defined in Section 52.209-5 of the Federal Acquisition Regulations.
B. CONTRACTOR further warrants and certifies that it shall not knowingly enter into any transaction with any subcontractor, material supplier, or vendor who is debarred, suspended, declared ineligible, or voluntarily excluded from covered transactions by any federal or state department/agency. Any exceptions to the warranties and certifications in this Section must be disclosed to the City.
C. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining Contractor’s responsibility. Disclosures must indicate to whom exceptions apply, the initiating agency, and dates of action.
D. City will review the Federal Government’s System for Award Management Exclusions maintained by the General Services Administration for eligibility, prior to the execution of this Agreement. The CONTRACTOR shall provide immediate written notice to the City if, at any time prior to execution, the CONTRACTOR learns this certification is erroneous or has become erroneous by reason of changed circumstances. If it is later determined that the Contractor’s warranties and certification in this Section were erroneous, the City may terminate this Agreement for default.
Policy Number:
VARIOUS PROVISIONS IN THIS POLICY RESTRICT COVERAGE. READ THE ENTIRE POLICY CAREFULLY TO DETERMINE RIGHTS, DUTIES AND WHAT IS AND IS NOT COVERED.
Throughout this Policy the words "you" and "your" refer to the Named Insured shown in the Declarations, and any other person or organization qualifying as a Named Insured under this Policy. The words "we", "us", "our", and the Company refer to the company providing this insurance.
The word "insured" means any person or organization qualifying as such under SECTION II WHO IS AN INSURED. Other words and phrases that appear in bold have special meaning. Refer to SECTION VI DEFINITIONS.
It is agreed by all insureds that the statements in the application are their representations, that such representations are deemed material and that this Policy is issued in reliance upon the truth of such representations. The application is the basis of this Policy and is incorporated in and constitutes a part of this Policy. Any material received with the application will be maintained on file with the Company and will be deemed to be attached thereto as if physically attached. This Policy includes all of the agreements existing between the insureds and the Company or any of its agents relating to this Policy.
SECTION I CONTRACTORS POLLUTION LIABILITY COVERAGE
1. INSURING AGREEMENT
COVERAGE A THIRD PARTY BODILY INJURY AND PROPERTY DAMAGE We will pay those sums that the insured becomes legally obligated to pay as Damages for Bodily Injury or Property Damage caused by a Pollution Incident caused by the insureds Contracting Services or Completed Operations caused by those Contracting Services to which this insurance applies. We will have the right and duty to defend the insured for any Claim made seeking those Damages. However, we will have no duty to defend against any Claim seeking Damages for Bodily Injury or Property Damage to which this insurance does not apply. We may, at our discretion, investigate any Pollution Incident and settle any Claim that may result.
COVERAGE B CORRECTIVE ACTION COSTS
We will pay those sums that the insured becomes legally obligated to pay for Corrective Action Costs resulting from a Pollution Incident caused by the insureds Contracting Services or Completed Operations to which this insurance applies. We will have the right and duty to defend the insured for any Claim seeking Corrective Action Costs. However we will have no duty to defend against any Claim made seeking Damages for Corrective Action Costs to which this insurance does not apply. We may, at our discretion, investigate any Pollution Incident and settle any Claim that may result.
Under Coverages A and B:
a. This insurance applies to Bodily Injury, Property Damage, or Corrective Action Costs only if:
(1) The Bodily Injury, Property Damage, or Corrective Action Costs is caused by a Pollution Incident that takes place in the Coverage Territory; and
(2) The Pollution Incident commences during the Policy Period; and (3) In the event a Pollution Incident gives rise to a Claim and continues through one or more Policy Periods, only the Policy in effect when the Pollution Incident first commences will apply.
CPL 101 02 21 Page 1 of 20
CONTRACTORS POLLUTION LIABILITY POLICY
Contains copyrighted material of Insurance Services Office, Inc.
EGL Mt. Hawley Insurance Company
Insured
CPL 101 02 21 Page 9 of 20
(2) Property Damage to property:
(a) Owned, occupied, or used by; or
(b) Rented to, in the care, custody, or control of, or over which physical control is being exercised for any purpose by;
You, any of your Employees, Volunteer Workers, any partner or member (if you are a partnership or joint venture), or any member (if you are a limited liability company). (3) Corrective Action Costs arising from a Pollution Incident. b. Your legal representative if you die, but only with respect to duties as such. That representative will have all your rights and duties under this Policy.
3. Any organization you newly acquire or form, other than a partnership, joint venture, or limited liability company, and over which you maintain ownership or majority interest, will qualify as a Named Insured if there is no other similar insurance available to that organization. However:
a. Coverage under this provision is afforded only until the ninetieth (90th) day after you acquire or form the organization or the end of the Policy Period, whichever is earlier; and b. Coverage does not apply for Pollution Incidents that occurred before you acquired or formed the organization;
4. Any additional insured, person, or organization as required by written contract or agreement signed by all parties prior to commencement of a Pollution Incident but only with respect to liability caused, in whole or in part, by the named insureds negligence and arising out of the named insureds ongoing operations.
No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture, or limited liability company that is not shown as a Named Insured in the Declarations. No person or organization who does not qualify as an insured under this policy becomes an insured because such person or organization is or is alleged to be an alter ego of any person or organization who qualifies as an insured under this policy.
SECTION III SUPPLEMENTARY PAYMENTS
1. We will pay, with respect to any Claims we investigate or settle, or any Claim or Suit against an insured we defend:
a. All Defense Expenses we incur.
b. The cost of bonds to release attachments, but only for bond amounts within the applicable Limit of Insurance. We do not have to furnish these bonds.
c. All reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of the Claim or Suit, including actual loss of earnings up to $250 a day because of time off from work. d. All court costs taxed against the insured in the Claim or Suit. However, these payments do not include attorneys fees or attorneys expenses taxed against the insured.
e. Prejudgment interest awarded against the insured on that part of the judgment we pay. If we make an offer to pay the applicable limit of insurance, we will not pay any prejudgment interest based on that period of time after the offer.
f. All interest on the amount of any judgment that is within the applicable limits of insurance and accrues after entry of the judgment and before we have paid, offered to pay, or deposited in court the part of the judgment that is within the applicable limit of insurance.
2. If we defend an insured against a Suit and an indemnitee of the insured is also named as a party to the Suit, we will defend that indemnitee if all of the following conditions are met:
Contains copyrighted material of Insurance Services Office, Inc.
Insured
Any additional insured, person, or organization as required by written contract or agreement signed by all parties prior to commencement of a Pollution Incident but only with respect to liability caused, in whole or in part, by the named insureds negligence and arising out of the named insureds ongoing operations.
a. To join us as a party or otherwise bring us into a Suit asking for Damages from an insured; or b. To sue us on this Policy unless all of its terms have been fully complied with.
A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured; but we will not be liable for Damages or for Corrective Action Costs that are not payable under the terms of this Policy or that are in excess of the applicable Limit of Insurance. An agreed settlement means a settlement and release of liability signed by us, the insured, and the claimant, or the claimant's legal representative.
5. Other Insurance
This insurance is excess over all valid and collectible insurance that is available for a loss that is also covered pursuant to this policy except this insurance will be primary in the event that a written contract, agreement, or permit which was executed by both parties prior to the Pollution Incident requires this insurance to be primary and non-contributory for any person or organization, and such person qualifies as an insured under this policy.
6. Representations
By accepting this Policy, you agree:
a. The statements in the Declarations are accurate and complete; b. Those statements are based upon representations you made to us; and c. We have issued this Policy in reliance upon your representations.
7. Separation Of Insureds
Except with respect to the Limits of Insurance, and any rights or duties specifically assigned in this Policy to the first Named Insured, this insurance applies:
a. As if each Named Insured were the only Named Insured; and b. Separately to each Named Insured against whom Claim is made or Suit is brought.
8. Transfer Of Rights Of Recovery Against Others To Us
If any insured has rights to recover all or part of any payment we have made under this Policy, those rights are transferred to us. Any insured must do nothing after loss to impair them. At our request, any insured will bring Suit or transfer those rights to us and help us enforce them.
However, if any insured has waived rights of recovery against any person or organization as per executed contract prior to the Pollution Incident, we waive any right of recovery we may have under this policy against such person or organization.
9. Assignment
This Policy shall be void as to the assignee or transferee, if assigned or transferred without written consent of the Company.
10. Nonrenewal
If we decide not to renew this Policy, we will send written notice of nonrenewal to you at least sixty (60) days before the end of the Policy Period. We will send our nonrenewal to first Named Insured on the Declarations at your last mailing address known to us.
CPL 101 02 21 Contains copyrighted material of Insurance Services Office, Inc.
Insured
This insurance is excess over all valid and collectible insurance that is available for a loss that is also covered pursuant to this policy except this insurance will be primary in the event that a written contract, agreement, or permit which was executed by both parties prior to the Pollution Incident requires this insurance to be primary and non-contributory for any person or organization, and such person qualifies as an insured under this policy.
8. Transfer Of Rights Of Recovery Against Others To Us
If any insured has rights to recover all or part of any payment we have made under this Policy, those rights are transferred to us. Any insured must do nothing after loss to impair them. At our request, any insured will bring Suit or transfer those rights to us and help us enforce them.
However, if any insured has waived rights of recovery against any person or organization as per executed contract prior to the Pollution Incident, we waive any right of recovery we may have under this policy against such person or organization.
00 CA0116 00 04 10 Page 1 of 1
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
PRIMARY AND NON-CONTRIBUTING INSURANCE ENDORSEMENT -
DESIGNATED CONTRACT(S)
This endorsement modifies insurance provided under the following:
BUSINESS AUTO COVERAGE FORM
GARAGE COVERAGE FORM
SCHEDULE
Designated
Contract(s): ALL PARTIES WHERE REQUIRED BY A WRITTEN CONTRACT With respect to the contract(s) designated in the Schedule above, it is agreed that the following subparagraph e. is added to SECTION IV - BUSINESS AUTO CONDITIONS, Paragraph B. 5. and SECTION V GARAGE CONDITIONS, Paragraph B. 5.
5. Other Insurance
e. With respect to SECTION II - LIABILITY COVERAGE, where you are specifically required by a written contract designated in the Schedule above to provide insurance that is primary and non-contributory, and the written contract designated in the Schedule above so requiring is executed by you before any accident, this insurance will be primary and the other insurance will not contribute with this insurance, but only to the extent required by that written contract.
All other terms and conditions of this Policy remain unchanged.
Endorsement Number:
This endorsement is effective on the inception date of this policy unless otherwise stated herein. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.)
Policy Number: ZACAT120330
Named Insured: INDUSTRIAL ELECTRICAL COMPANY
Endorsement Effective Date: 01/01/202
Endorsement Number:
Policy Number: ZACAT120330
Named Insured: INDUSTRIAL ELECTRICAL COMPANY
This endorsement is effective on the inception date of this Policy unless otherwise stated herein:
Endorsement Effective Date: 1/1/202
00 CA0070 00 10 13 Page 1 of 1
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED DESIGNATED PERSON OR ORGANIZATION
This endorsement modifies insurance provided under the following:
AUTO DEALERS COVERAGE FORM
BUSINESS AUTO COVERAGE FORM
MOTOR CARRIER COVERAGE FORM
SCHEDULE
Name of Person(s) or Organization(s):
BY WRITTEN CONTRACT OR AGREEMENT
With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement.
Under Covered Autos Liability Coverage, the Who is An Insured provision is amended to include as an insured the person(s) or organization(s) named in the Schedule above, but only with respect to their legal liability for your acts or omissions or acts or omissions of any person for whom Covered Auto Liability Coverage is afforded under this policy.
All other terms and conditions of this Policy remain unchanged.
00 GL0739 00 02 13 Page 1 of 2
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
PER LOCATION OR PER PROJECT AGGREGATE LIMIT AND POLICY
AGGREGATE LIMIT ENDORSEMENT
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
Schedule
Per Location Aggregate Limit:
Per Project Aggregate Limit: $1,000,000
Policy Aggregate Limit: $1,000,000
A. For all sums which the insured becomes legally obligated to pay as damages caused by an occurrence under SECTION I COVERAGE A, and for all medical expenses caused by accidents under SECTION I COVERAGE C, which can be attributed only to ongoing operations at a single location or project:
1. A separate Per Location Aggregate Limit applies to each location you own or rent if there is an X in the Per Location box of the Schedule, and that limit is equal to the corresponding amount shown in the Schedule. 2. A separate Per Project Aggregate Limit applies to each project at which you perform operations if there is an X in the Per Project box of the Schedule, and that limit is equal to the corresponding amount shown in the Schedule. 3. The Per Location Aggregate Limit or Per Project Aggregate Limit (whichever is applicable) is the most we will pay for the sum of all such damages under COVERAGE A, except damages because of bodily injury or property damage included in the productscompleted operations hazard, and for medical expenses under COVERAGE C regardless of the number of:
a. Insureds;
b. Claims made or suits brought; or
c. Persons or organizations making claims or bringing suits.
4. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the Per Location or Per Project Aggregate Limit (whichever is applicable) for that location or project. Such payments shall not reduce the General Aggregate Limit shown in the Declarations nor shall they reduce any other Per Location or Per Project Aggregate Limit for any other location or project.
5. The limits shown in the Declarations for Each Occurrence and for Damage To Premises Rented To You continue to apply. However, instead of being subject to the General 00 GL0739 00 02 13 Page 2 of 2
Aggregate Limit shown in the Declarations, such limits will be subject to the applicable Per Location or Per Project Aggregate Limit.
B. For all sums which the insured becomes legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies and which cannot be attributed only to ongoing operations at a single location or project:
1. Any payments made for such damages shall reduce the amount available under the General Aggregate Limit or the Products-Completed Operations Aggregate Limit, whichever is applicable; and
2. Such payments shall not reduce any Per Location or Per Project Aggregate Limit.
C. When coverage for liability arising out of the products-completed operations hazard is provided, any payments for damages because of bodily injury or property damage included in the products-completed operations hazard will be subject to and reduce the Products-Completed Operations Aggregate Limit, and not reduce the General Aggregate Limit nor any Per Location Aggregate Limit or Per Project Aggregate Limit.
D. The Policy Aggregate Limit shown in the Schedule is the most we will pay under this policy for the sum of all damages under Coverage A. and Coverage B., and Medical Expenses under Coverage C. The General Aggregate Limit, the Products-Completed Operations Aggregate Limit, and the Per Location Aggregate Limit(s) or Per Project Aggregate Limit(s) (whichever is applicable) are all subject to the Policy Aggregate Limit.
E. The provisions of SECTION III LIMITS OF INSURANCE not otherwise modified by this endorsement shall continue to apply as stipulated.
F. For the purposes of this endorsement, SECTION V DEFINITIONS is amended to include the following additional definitions:
Location means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway, waterway or right-of-way of a railroad. Project means construction project. If the applicable construction project has been abandoned, delayed, or abandoned and then restarted, or if the authorized contracting parties deviate from plans, blueprints, designs, specifications or timetables, the project will still be deemed to be the same construction project.
All other terms and conditions of this Policy remain unchanged.
Endorsement Number:
This endorsement is effective on the inception date of this policy unless otherwise stated herein.
The information below is required only when this endorsement is issued subsequent to preparation of the policy.)
Policy Number: ZAGLB110240
Named Insured: INDUSTRIAL ELECTRICAL COMPANY
Endorsement Effective Date: 01/01/202
Form Approved by City Attorney 9-1-2020 Page 1
CONTRACT #: PRC003260
CONTRACT NAME: On-Call Electric Motor Repair Parts & Service CONTRACT PROJECT #: NA DEPARTMENT: Utilities
DIVISION: Engineering & Water Resources
CITY OF SACRAMENTO
GOODS AND NONPROFESSIONAL SERVICES AGREEMENT
THIS CONTRACT is made at Sacramento, California, by and between the CITY OF SACRAMENTO, a charter city and municipal corporation (“CITY”), and
Dahl-Beck Electric
2775 Goodrick Avenue Richmond, California 94801-1109
(510) 237-2325 / [email protected]
(“Contractor”), as of the Effective Date, as defined below.
The City and Contractor agree as follows:
1. Effective Date. This Contract shall be effective beginning the date it is fully executed by the duly authorized parties.
2. Contract Documents. This Contract includes each of the following documents, which are attached or incorporated by this reference (referred to collectively as the “Contract Documents”):
Invitation to Bid, Request for Qualifications, or Request for Proposals, and any Addenda Exhibit A - Technical Specifications
Exhibit B – Payment
Exhibit C – Insurance
Exhibit D – General Conditions
Purchase Orders
If there is a conflict between the terms and conditions of any document prepared or provided by the Contractor and made a part of this Contract and the other terms or conditions of the Contract, the other terms and conditions of the Contract control.
3. Goods and Services. Subject to the terms and conditions set forth in this Contract, Contractor shall provide to City the goods, materials, equipment or supplies (“Goods”) and the nonprofessional services (“Services”) described in Exhibit A (referred to collectively as “Goods and Services”).
Contractor will not be compensated for goods, materials, equipment, supplies, or nonprofessional services outside the scope of Exhibit A (“Additional Goods and Services”) unless, before providing Additional Goods and Services: (a) Contractor notifies City and City agrees that Form Approved by City Attorney 9-1-2020 Page 2
the Additional Goods and Services are outside the scope of Exhibit A; (b) Contractor estimates the additional compensation required for these Additional Goods and Services; and (c) City, after notice, approves in writing a Supplemental Contract specifying the Additional Goods and Services and the amount of additional compensation to be paid Contractor.
City will have no obligations whatsoever under this Contract or any Supplemental Contract, unless and until this Contract or any Supplemental Contract is approved by the City as required by the Sacramento City Code. As used in this Contract, the term “Goods and Services” includes both Goods and Services and Additional Goods and Services as applicable.
4. Payment. City shall pay Contractor at the times and in the manner set forth in Exhibit B.
Contractor shall submit all invoices to City in the manner specified in Exhibit B.
5. Facilities and Equipment. Except as set forth below, Contractor shall, at its sole cost and expense, furnish all facilities and equipment required for Contractor to perform this Contract. City shall furnish to Contractor only the facilities and equipment listed below, if any.
Access to City facilities will be provided, as needed.
6. Insurance. Contractor shall, at its sole cost and expense, maintain the insurance coverage described in the attached Exhibit C.
7. General Conditions. Contractor shall comply with the terms and conditions set forth in the attached Exhibit D.
8. Non-Discrimination in Employee Benefits. This Contract may be subject to Sacramento City Code chapter 3.54, Non- Discrimination in Employee Benefits by City Contractors. A summary of the requirements, entitled "Requirements of the Non-Discrimination in Employee Benefits Code (Equal Benefits Ordinance),” can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
Contractor acknowledges and represents that Contractor has read and understands the requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.54. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance.
Contractor's violation of Sacramento City Code chapter 3.54 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
9. Living Wage. This Contract may be subject to Sacramento City Code chapter 3.58, Living Wage.
A summary of the requirements, entitled "Living Wage Requirements", can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
The Living Wage Ordinance is applicable to certain contracts with the City in an amount of $250,000 or more (either initial value or total value after amendment) or if the total value of all Contractor's contracts with the City is $250,000 or more over a 12-month period.
Form Approved by City Attorney 9-1-2020 Page 3
Contractor acknowledges and represents that Contractor has read and understands the requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.58. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance.
Contractor shall require applicable subcontractors to fully comply with all applicable requirements of Sacramento City Code chapter 3.58 and include these requirements in all subcontracts covered by Sacramento City Code chapter 3.58.
Contractor's violation of Sacramento City Code chapter 3.58 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
In addition, for Services that constitute "Public Works" under California Labor Code Section 1720 et seq., if both prevailing wage and living wage requirements apply, Contractor shall pay the higher of the two rates.
10. Considering Criminal Conviction Information in the Employment Application Process. This Contract may be subject to the requirements of Sacramento City Code chapter 3.62, Procedures for Considering Criminal Conviction Information in the Employment Application Process. A summary of the requirements, entitled “Ban-The-Box Requirements,” can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
The Ban-The-Box Requirements are applicable to certain contracts with the City in an amount of $250,000 or more (either initial value or total value after amendment) or if the total value of all Contractor's contracts with the City is $250,000 or more over a 12-month period.
Contractor acknowledges and represents that Contractor has read and understands these requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.62. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance. Contractor shall require applicable subcontractors to fully comply with all applicable requirements of Sacramento City Code chapter 3.62 and include these requirements in all subcontracts covered by Sacramento City Code chapter 3.62.
Contractor's violation of Sacramento City Code chapter 3.62 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
11. Local Business Enterprise Program. The Local Business Enterprise Program Participation Requirements ("LBE Participation Requirements") are applicable to this Contract. A summary of the requirements, entitled "LBE Participation Requirements," can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
Form Approved by City Attorney 9-1-2020 Page 4
Contractor acknowledges and represents that Contractor has read and understands these requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.60. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance. Contractor shall require applicable subcontractors to fully comply with all applicable requirements of Sacramento City Code chapter 3.60 and include these requirements in all subcontracts covered by Sacramento City Code chapter 3.60.
Contractor's violation of Sacramento City Code chapter 3.60 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
12. Authority. The person signing this Contract for Contractor represents and warrants that he or she has read, understands, and agrees to all the Contract terms and is fully authorized to sign this Contract on behalf of the Contractor and to bind the Contractor to the performance of the Contract’s obligations.
[Signature Pages Follow Exhibits]
Form Approved by City Attorney 9-1-2020 Exhibit A - Page 1
EXHIBIT A
TECHNICAL SPECIFICATIONS
1. Representatives.
The CITY Representative for this Agreement is:
Ray Wilderman, Superintendent
Department of Utilities
1395 35th Avenue, Sacramento, CA 95822
Phone: (916) 808-8067/E-mail: [email protected] The CONTRACTOR Representative for this Agreement is:
Roger Beck / President
Dahl-Beck Electric
2775 Goodrick Avenue Richmond, California 94801-1109
(510) 237-2325 / [email protected]
Unless otherwise provided in this Contract, all Contractor questions and correspondence pertaining to this Contract must be addressed to the City Representative. All City questions and correspondence must be addressed to the Contractor Representative.
2. Scope of Services. Contractor shall provide Goods and Services to City as set forth in Attachment 1 to this Exhibit A.
3. Quantities. The quantities stated in Attachment 1 to this Exhibit A or Exhibit B are only estimates of the City's requirements. Contractor shall furnish Goods and Services at the prices quoted, in accordance with the City's available funds and actual needs as they occur throughout the term of this Contract.
The City is not required to purchase all of the Goods and Services listed, or to expend all available funding reflected in Exhibits A or B.
4. Time of Performance. The Goods and Services described in this Contract shall be provided for One Year. The City may extend this Contract for up to Four (4) additional one-year terms, for a maximum five-year term. Contractor shall provide the Goods and Services in accordance with any schedule in Attachment 1 to this Exhibit A.
5. Delivery and Inspection.
A. Delivery. Unless otherwise stated by the City in writing, delivery of Goods shall be made to the City address set forth in Exhibit A. All shipments are Free on Board (F.O.B.) destination with freight prepaid unless otherwise stated.
Form Approved by City Attorney 9-1-2020 Exhibit A - Page 2 Contractor assumes full responsibility for all transportation scheduling and costs, including costs for containers, packing, handling, and insurance. The City reserves the right to request and receive a copy of the freight bill of lading on all purchases shipped F.O.B. prepaid and added.
Time is of the essence in the delivery. If delivery cannot be made as specified in Exhibit A or as otherwise stated by the City, Contractor shall notify the City immediately to request instructions on how to proceed and shall not make delivery before receipt of instructions.
Periods of performance may be extended if, in the sole judgment of the City, the cause of delay justifies an extension.
B. Inspections: Goods will be inspected at the destination before acceptance by an authorized representative of the City for workmanship, appearance, proper functioning of all equipment and systems, and conformance to all other requirements of this Contract. The Goods shall be delivered to City free of any liens or encumbrances.
Notwithstanding the requirements for any City inspection and testing at the destination and except where specialized inspections or testing are specified for performance solely by the City, Contractor shall perform or have performed the inspections or tests required to substantiate that all Goods provided under the Contract conform to the drawings, specifications, and other Contract requirements, including, if applicable, the technical requirements for the manufacturer's part number(s) specified.
C. Deficiencies: If deficiencies in the Goods are discovered, Contractor shall correct and redeliver the Goods for re-inspection and acceptance. The period for payment and/or commencement of discount period (if applicable) does not begin until corrective action is complete. The cost of storing rejected Goods and the cost for shipping rejected Goods back to the Contractor or point of origin shall be paid by Contractor.
D. Inspection of Facilities: If requested by the City, Contractor shall provide the City with an inspection tour of Contractor's facilities where any Goods will be designed, manufactured, or assembled by Contractor.
6. Title/Risk of Loss. Title, ownership, and risk of loss or damage of the Goods remains with the Contractor until the Goods are delivered to, inspected, and accepted by the City, except when the loss or damage is due to the sole negligence of the City.
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 1
EXHIBIT B
PAYMENT
1. Contractor’s Compensation. The total of all fees paid to the Contractor for the provision of Goods and Services as set forth in Exhibit A, including any authorized reimbursable expenses, shall not exceed the total sum of $ 3,000,000. The payments specified in this Exhibit B shall be the only payments made to Contractor unless the City approves a Supplemental Contract.
2. Pricing. Contractor shall be paid as set forth in Exhibit A or Attachment 1 to this Exhibit B and any applicable special provisions included in the request for bids or proposals. If there is a conflict between Exhibit A or Exhibit B and the Special Provisions, Exhibit A or Exhibit B controls.
3. Contractor’s Reimbursable Expenses. “Reimbursable Expenses” are limited to actual expenditures of Contractor for expenses that are necessary for the proper satisfaction of the Contract and are only payable if specifically authorized in advance in writing by the City.
4. Miscellaneous Charges. No additional charges will be allowed unless specified in the Contract, including charges for transportation, fuel, containers, packing, or disposal.
5. Price Adjustments for Goods. Unless otherwise stated, prices are maximum for the term of the Contract. Price adjustments, if allowed under this Contract, must be requested in writing and accompanied by the required information to substantiate the request for price adjustment, as set forth in the Contract. Any allowable request for price adjustment must be delivered to the City at least 30 days before the adjusted prices become effective. No price adjustment allowable under this Contract will be granted retroactively. The City must also be given the benefit of any decline in prices. If any price increase is granted by the City, the increase shall not be greater than 3% from the prior year.
6. Purchase Orders. Unless otherwise stated, a purchase order will be issued to the Contractor on behalf of the City. Purchase orders will cite the quantity of Goods or Services requested, the purchase amount, and time of performance. If the time of performance of this Contract extends beyond the close of the City's fiscal year, another purchase order may be issued. No purchase order supersedes any provision of this Contract. Contractor shall not deliver Goods or provide Services until Contractor receives a purchase order or other written notification by the City.
7. Payments to Contractor. Contractor is responsible for supplying all documentation necessary to verify invoices to the City’s satisfaction.
A. Payment terms are NET 30 days, unless the Contractor offers a prompt payment discount that was accepted by the City or as otherwise stated in this Contract. Any prompt payment discounts will be computed from the date of acceptance by the City, or from the date an invoice is received, whichever occurs later.
B. Invoices must be submitted to either of the addresses specified below. (1) Email. Submit email invoices and any attachments to:
[email protected]
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 2 (2) Postal Mail. If emailing is not an option, mail to:
A/P Processing Center
City of Sacramento
915 I Street, Floor 4
Sacramento, CA 95814-2608
C. All invoices submitted by CONTRACTOR must contain the following information:
(1) Job/Project Name
(2) CITY’s current Purchase Order Number
(3) Contractor’s Invoice Number
(4) Date of Invoice Issuance
(5) Work Order Number (if applicable)
(6) CITY representative identified on the Purchase Order (7) Contractor’s remit address
(8) Itemized description of items billed under Invoice
(9) Itemized description of all authorized Reimbursable Expenses (10) Itemized description of all applicable taxes (sales, use, excise, etc.) (11) Amount of Invoice (itemize all authorized Reimbursable Expenses) (12) Total Billed to Date under Contract (if applicable) D. Items must be separated into Goods, Services, and Reimbursable Expenses. All applicable sales, use, excise, or similar taxes, including federal excise tax, must be itemized separately on the invoice. Invoices that do not conform to the format outlined above will be returned to Contractor for correction. City is not responsible for delays in payment to Contractor resulting from Contractor’s failure to comply with the invoice format described above.
E. For Goods only, a bill of lading number and weight of shipment will be shown for shipments on the Government Bill of Lading.
F. Unless otherwise specified in this Contract, partial payments will not be made by the City and payment will not be due until the completion of the Goods order. No payment precludes the City’s right to inspect. Requests for payment status should be addressed to the City Representative for this Contract.
8. Additional Goods and Services. Additional Goods and Services shall be provided only when a Supplemental Contract authorizing the Additional Goods and Services is approved in writing by the City in accordance with the City’s contract amendment procedures. The City reserves the right to perform any Additional Services with its own staff or to retain other contractors to perform the Additional Services.
9. Billing Disputes. The burden of proof shall be on the Contractor to establish the accuracy of its invoices. Upon presentation and verification of the information provided by Contractor, the City will review all records and make a final determination and present its finding to Contractor.
10. Accounting Records of Contractor. During performance of this Contract and for a period of three Form Approved by City Attorney 9-1-2020 Exhibit B - Page 3 years after completion of performance, Contractor shall maintain all accounting and financial records related to this Contract, in accordance with generally accepted accounting practices, including records of Contractor’s costs for performance under this Contract and records of Contractor’s Reimbursable Expenses. Contractor shall keep and make records available for inspection and audit by representatives of the City upon reasonable written notice.
11. Sales Tax Requirements. The City is not exempt from paying sales tax. Sales tax must be shown on the invoice as a separate line item.
12. Use Tax Requirements. On out-of-state purchases, Contractor shall list its Use Tax Permit Number (if applicable) on the invoice, which authorizes Contractor to charge and collect California Sales Tax. The Purchase Order will include sales tax, if applicable to the purchase, regardless of whether an out-of-state Contractor collects California State sales tax or not.
The City shall pay Use Tax directly to the California Department of Tax and Fee Administration ("CDTFA") if the out-of-state Contractor is not required to collect California Sales Tax. During the performance of this Contract, Contractor, for itself, its assignees and successors in interest, agrees as follows:
A. Use Tax Direct Payment Permit: For all leases and purchases of tangible personal property used to perform the Contract and shipped from outside California, Contractor and any subcontractor(s) leasing or purchasing such tangible personal property shall obtain a Use Tax Direct Payment Permit from the CDTFA in accordance with the applicable CDTFA criteria and requirements.
B. Sellers Permit: For any construction contract and any construction subcontract in the amount of $5,000,000 or more, Contractor and the subcontractor(s) shall obtain sellers permits from the CDTFA and shall register the jobsite as the place of business for the purpose of allocating local sales and use tax to the City. Contractor and its subcontractors shall remit the self-accrued use tax to the CDTFA and shall provide a copy of each remittance to the City.
C. The above provisions apply in all instances unless prohibited by the funding source for the Contract.
13. Excise Tax Requirements. The City of Sacramento is exempt from the payment of Federal Excise Tax. An exemption certificate will be submitted to Contractor upon request. If Federal Excise Tax is applicable to the transaction, it must be so stated and excluded from the price.
14. Tax Payments. Contractor shall pay, when and as due, any and all taxes incurred as a result of Contractor’s compensation hereunder, including estimated taxes, and shall provide CITY with proof of the payment upon request. Contractor hereby agrees to indemnify CITY for any claims, losses, costs, fees, liabilities, damages or injuries suffered by CITY arising out of Contractor’s breach of this section.
15. Public Works Requirements. [To be completed by the City Representative:] The services provided under this Contract include [check one if applicable]:
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 4 ________ Construction work in an amount exceeding $25,000; ________ Land Surveying, material testing, or inspection services provided for a City construction project during the design, pre-construction, construction, or post-construction phases of the project; or
________ Alteration, demolition, repair, or maintenance work in an amount exceeding $15,000.
If any of the lines is checked above, this Contract includes “Public Work” under the California Labor Code and is subject to the following requirements:
A. Payment of Prevailing Wages: Contractor and any subcontractor(s) performing any Public Work shall comply with the provisions of Sacramento City Code section 3.60.180 and applicable provisions of the California Labor Code, which require, among other things, that Contractor and all subcontractors pay not less than the prevailing rate of wages, as determined by the Director of the California Department of Industrial Relations (“DIR”) in accordance with California Labor Code section 1773. Contractor and every subcontractor shall maintain payroll records and submit certified payrolls and other labor compliance documentation electronically when and as required by CITY. In addition, Labor Code Section 1771.4 requires the Contractor and any subcontractor performing any Public Work to furnish electronic payroll records directly to the Labor Commissioner. Contractor shall include these requirements in every subcontract.
This Agreement is subject to compliance monitoring and enforcement by the DIR, as specified in California Labor Code section 1771.4. The Contractor and any subcontractor will be subject to withholding and penalties for violation of prevailing wage requirements in accordance with applicable law, including Labor Code Sections 1726, 1741, 1771.5, and 1775, and City Code Section 3.60.180. Questions regarding the City’s Labor Compliance Program should be directed to the City Representative.
B. DIR Registration: California Labor Code Section 1725.5 requires the Contractor and all subcontractors performing Public Works services to be currently registered with the DIR, as specified in California Labor Code Section 1725.5. California Labor Code Section 1771.1 provides that a contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal (subject to the requirements of Section 4104 of the California Public Contract Code), or engage in the performance of any contract for Public Work, unless currently registered and qualified to perform Public Work in accordance with California Labor Code Section 1725.5.
Further information can be found on DIR’s website at http://www.dir.ca.gov/PublicWorks/Contractors.html. The above summary is provided solely for informational purposes and does not in any way affect the Contractor’s and subcontractors’ obligation to comply in all respects with all other applicable laws and regulations. The Contractor shall disseminate these provisions to all subcontractors.
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 5 Before the performance of work by Contractor or any subcontractor(s) under this Contract, Contractor shall furnish Contractor’s and any subcontractors’ current DIR registration number(s). The Contractor’s current DIR registration number and the current DIR registration number of all subcontractors will be listed on the Subcontractor and LBE Participation Verification Form, incorporated herein.
C. Workers’ Compensation Certification. In accordance with California Labor Code Section 1861, by signing this Contract, Contractor acknowledges and represents that Contractor is aware of the provisions of section 3700 of the California Labor Code which requires every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and that Contractor will comply with the provisions of the Labor Code before commencing performance under this Contract.
D. Apprentices. If this Contract is for the performance of any Public Work, and the amount of the Contract is $30,000 or more, the Contractor and any subcontractors performing any Public Work under this Contract must comply with and be subject to enforcement under, the provisions of Sacramento City Code Section 3.60.190, Section 1777.5 et seq. of the California Labor Code, and implementing regulations set forth in Title 8 of the California Code of Regulations, governing the employment of apprentices. The Contractor and any subcontractors performing Public Work will be subject to penalties for apprenticeship violations in accordance with Labor Code Section 1777.7.
E. Working Hours. If this Contract is for the performance of any Public Work, Contractor and any subcontractors performing any Public Work under this Contract must comply with and be subject to enforcement under, the provisions of Sacramento City Code Section 3.60.180 and California Labor Code Section 1810 et seq., governing the working hours of employees performing Public Work.
F. Failure to Comply with Labor Compliance. If all applicable labor compliance requirements are not met, the City will have the right to withhold or reject a payment request and/or invoice, in whole or in part, without in any way relieving Contractor or its subcontractors of any obligations under this Contract.
G. Subcontractors. The Contractor shall include these provisions A through F in every subcontract or sub-agreement for any subcontractors performing work under this Contract.
Form Approved by City Attorney 9-1-2020 Exhibit C - Page 1
EXHIBIT C
INSURANCE
1. Insurance Requirements. During the entire term of this Contract, Contractor shall maintain the insurance coverage described in the Insurance Terms below. Full compensation for all premiums that Contractor is required to pay for the insurance coverage described herein shall be included in the compensation specified under this Contract. No additional compensation will be provided for Contractor's insurance premiums. Any available insurance proceeds in excess of the specified minimum limits and coverages shall be available to the City.
Contractor's liability to the City is not in any way limited to or affected by the amount of insurance coverage required or carried by the Contractor in connection with this Contract.
2. General Liability Minimum Scope and Limits of Insurance Coverage. Commercial General Liability Insurance is required providing coverage at least as broad as ISO CGL Form 00 01 on an occurrence basis for bodily injury, including death, of one or more persons, property damage, and personal injury, arising out of activities performed by or on behalf of the Contractor and subcontractors, products and completed operations of Contractor and subcontractors, and premises owned, leased, or used by Contractor and subcontractors, with limits of not less than one million dollars ($1,000,000) per occurrence. The policy shall provide contractual liability and products and completed operations coverage for the term of the policy.
The City, its officials, employees and volunteers shall be covered by policy terms or endorsement as additional insureds as respects general liability arising out of: activities performed by or on behalf of Contractor and subcontractors; products and completed operations of Contractor and subcontractors; and premises owned, leased, or used by Contractor and subcontractors.
3. Automobile Liability Minimum Scope and Limits of Insurance Coverage. (Check the applicable provision.)
_X_ Automobile Liability Insurance is required providing coverage at least as broad as ISO Form CA 00 01 for bodily injury, including death, of one or more persons, property damage and personal injury, with limits of not less than one million dollars ($1,000,000) per occurrence. The policy shall provide coverage for owned, non-owned and/or hired autos as appropriate to the operations of the Contractor.
The City, its officials, employees and volunteers shall be covered by policy terms or endorsement as additional insureds as respects auto liability. ___ No automobile liability insurance is required, and by signing this Contract, Contractor certifies as follows:
“Contractor certifies that a motor vehicle will not be used in the performance of any work or services under this agreement. If, however, Contractor does transport items under this Contract, or this Contract is amended to require any employees of Contractor to use a Form Approved by City Attorney 9-1-2020 Exhibit C - Page 2 vehicle to perform services under the Contract, Contractor understands that it must maintain and provide evidence of Automobile Liability Insurance providing coverage at least as broad as ISO Form CA 00 01 for bodily injury, including death, of one or more persons, property damage and personal injury, with limits of not less than one million dollars ($1,000,000) per occurrence. The policy shall provide coverage for owned, nonowned and/or hired autos as appropriate to the operations of the Contractor.”
4. Excess Insurance. The minimum limits of insurance required above may be satisfied by a combination of primary and umbrella or excess insurance coverage, provided that any umbrella or excess insurance contains, or is endorsed to contain, a provision that it will apply on a primary basis for the benefit of the City, and any insurance or self-insurance maintained by City, its officials, employees, or volunteers will be in excess of Contractor's umbrella or excess coverage and will not contribute to it.
5. Workers’ Compensation Minimum Scope and Limits of Insurance Coverage. (Check the applicable provision.)
_X_ Workers’ Compensation Insurance is required with statutory limits and Employers' Liability Insurance with limits of not less than one million dollars ($1,000,000). The Workers' Compensation policy shall include a waiver of subrogation in favor of the City.
___ No work or services will be performed on or at CITY facilities or CITY Property, therefore a Workers’ Compensation waiver of subrogation in favor of the CITY is not required. ___ No Workers’ Compensation insurance is required, and by signing this Contract, Contractor certifies as follows:
“Contractor certifies that its business has no employees, and that it does not employ anyone, and is therefore exempt from the legal requirements to provide Workers' Compensation insurance. If, however, Contractor hires any employee during the term of this Contract, Contractor understands that Workers’ Compensation with statutory limits and Employer’s Liability Insurance with a limit of not less than one million dollars ($1,000,000) is required. The Workers’ Compensation policy will include a waiver of subrogation in favor of the City.”
6. Other Insurance Provisions. The policies must contain, or be endorsed to contain, the following provisions:
A. Contractor's insurance coverage, including excess insurance, shall be primary insurance as respects the City, its officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officials, employees or volunteers will be in excess of Contractor's insurance and will not contribute with it.
B. Any failure to comply with reporting provisions of the policies will not affect coverage provided to the City, its officials, employees or volunteers.
C. Coverage shall state that Contractor's insurance applies separately to each insured Form Approved by City Attorney 9-1-2020 Exhibit C - Page 3 against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
D. Contractor shall provide the City with 30 days written notice of cancellation or material change in the policy language or terms.
7. Acceptability of Insurance. Insurance must be placed with insurers with a Bests' rating of not less than A:VI. Self-insured retentions, policy terms or other variations that do not comply with the requirements of this Exhibit C must be declared to and approved by the City in writing before execution of this Contract.
8. Verification of Coverage.
A. Contractor shall furnish City with certificates and required endorsements evidencing the insurance required. Certificates of insurance must be signed by an authorized representative of the insurance carrier. Copies of policies shall be delivered to the City Representative on demand.
B. Contractor shall send all insurance certificates and endorsements, including policy renewals, during the term of this Contract directly to:
City of Sacramento
c/o Exigis LLC
PO Box 947
Murrieta, CA 92564
C. Certificate Holder must be listed as:
City of Sacramento
c/o Exigis LLC
PO Box 947
Murrieta, CA 92564
D. The City may withdraw its offer of Contract or cancel this Contract if the certificates of insurance and endorsements required have not been provided before execution of this Contract. The City may withhold payments to Contractor and/or cancel the Contract if the insurance is canceled or Contractor otherwise ceases to be insured as required herein.
9. Subcontractor Insurance Coverage. Contractor shall require and verify that all subcontractors maintain insurance coverage that meets the minimum scope and limits of insurance coverage specified in this Exhibit C.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 1
EXHIBIT D
GENERAL CONDITIONS
1. Independent Contractor. A. It is understood and agreed that Contractor (including Contractor’s employees) is an independent contractor and that no relationship of employer-employee exists between the parties hereto for any purpose whatsoever. Neither Contractor nor Contractor’s assigned personnel will be entitled to any benefits payable to CITY employees. CITY is not required to make any deductions or withholdings from the compensation payable to Contractor under the provisions of this Contract, and Contractor will be issued a Form 1099 for its services hereunder. As an independent contractor, Contractor hereby agrees to indemnify and hold CITY harmless from any and all claims that may be made against CITY based upon any contention by any of Contractor’s employees or by any third party, including any state or federal agency, that an employer-employee relationship or a substitute therefor exists for any purpose whatsoever by reason of this Contract or by reason of the nature and/or performance under this Contract.
B. It is further understood and agreed by the parties that Contractor, in the performance of its obligations, is subject to the City’s control and direction as to the designation of tasks to be performed and the results to be accomplished under this Contract, but not as to the means, methods, or sequence used by Contractor for accomplishing the results. To the extent that Contractor obtains permission to, and does, use CITY facilities, space, equipment or support services in the performance of this Contract, this use will be at the Contractor’s sole discretion based on the Contractor’s determination that the use will promote Contractor’s efficiency and effectiveness. Except as may be specifically provided elsewhere in this Contract, the CITY does not require that Contractor use CITY facilities, equipment or support services or work in CITY locations in the performance of this Contract. As used in this Contract, "sole discretion" or "sole judgment" means that the party authorized to exercise its discretion or judgment may do so based on an unfettered assessment of its own interests, without considering how its decision affects the other party, and unconstrained by the implied covenant of good faith and fair dealing.
C. If, in the performance of this Contract, any third persons are employed by Contractor, such persons will be entirely and exclusively under the direction, supervision, and control of Contractor. Except as otherwise provided in this Contract, all terms of employment, including hours, wages, working conditions, discipline, hiring, and discharging, or any other terms of employment or requirements of law, shall be determined by Contractor.
It is further understood and agreed that Contractor will issue W-2 or 1099 Forms for income and employment tax purposes for all Contractor’s assigned personnel and subcontractors.
D. The provisions of this section will survive any expiration or termination of this Contract.
Nothing in this Contract creates an exclusive relationship between CITY and Contractor.
Contractor may represent, perform services for, or be employed by any additional persons or companies so long as Contractor does not violate the provisions of Section 5, below.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 2
2. Licenses; Permits, Etc. Contractor represents and warrants that Contractor has, and shall maintain at all times during the term of this Contract at its sole cost and expense, all licenses, permits, qualifications, and approvals of any nature that are legally required for Contractor to practice its profession or fulfill the terms of this Contract, including a City Business Operations Tax Certificate and any required certification issued by the California Secretary of State.
3. Time. Time is off the essence in the performance of this Contract. Contractor shall devote the necessary time and effort to its performance under this Contract. Neither party will be considered in default of this Contract, to the extent that party’s performance is prevented or delayed by any cause, present or future, that is beyond the reasonable control of that party.
4. Contractor Not Agent. Except as City may specify in writing, Contractor and Contractor’s personnel have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor and Contractor’s personnel shall have no authority, express or implied, to bind City to any obligations whatsoever.
5. Conflicts of Interest. Contractor covenants that neither it, nor any officer or principal of its firm, has or will acquire any interest, directly or indirectly, that would conflict in any manner with the City’s interests or that would in any way hinder Contractor’s performance under this Contract.
Contractor further covenants that in the performance of this Contract, no person having any such interest will be employed by it as an officer, employee, agent or subcontractor, without the City’s written consent.
Contractor agrees to avoid conflicts of interest or the appearance of any conflicts of interest with the City’s interests during the performance of this Contract. If Contractor is or employs a former officer or employee of the City, Contractor and any former City officer or employee shall comply with the provisions of Sacramento City Code Section 2.16.090 pertaining to appearances before the City Council or any City department, board, commission, or committee.
6. Hazardous Substances. "Hazardous Substances" means any substance, material, waste, or other pollutant or contaminant that is or becomes designated, classified, or regulated as hazardous or toxic under any law, regulation, rule, order, decree, or other governmental requirement now in effect or later enacted. If Contractor is shipping Hazardous Substances, Contractor must supply a Safety Data Sheet ("SDS") with the first shipment of Hazardous Substances to each City location receiving the Hazardous Substances. If the content of an SDS is revised, Contractor must provide a revised SDS to each City location receiving Hazardous Substances.
7. Confidentiality of City Information. During performance of this Contract, Contractor may gain access to and use City information regarding inventions, machinery, products, prices, apparatus, costs, discounts, future plans, business affairs, governmental affairs, processes, trade secrets, technical matters, systems, facilities, customer lists, product design, copyright, data, and other vital information (hereafter collectively referred to as “City Information”) that are valuable, special and unique assets of the City.
Contractor agrees to protect all City Information and treat it as strictly confidential, and further agrees that Contractor shall not at any time, either directly or indirectly, divulge, disclose or Form Approved by City Attorney 9-1-2020 Exhibit D - Page 3 communicate in any manner any City Information to any third party without the City’s prior written consent.
In addition, Contractor must comply with all City policies governing the use of the CITY network and technology systems, as set forth in applicable provisions of the City of Sacramento Administrative Policy Instructions # 30. A violation by Contractor of this section is a material violation of this Contract and shall justify legal and equitable relief.
8. Contractor Information.
A. City shall have full ownership and control, including ownership of any copyrights, of all information prepared, produced, or provided by Contractor under this Contract. In this Contract, the term “information” means and includes: any and all work product, submittals, reports, plans, specifications, and other deliverables consisting of documents, writings, handwritings, typewriting, printing, photostatting, photographing, computer models, and any other computerized data and every other means of recording any form of information, communications, or representation, including letters, works, pictures, drawings, sounds, or symbols, or any combination thereof. Contractor shall not be responsible for any unauthorized modification or use of such information for other than its intended purpose by City.
B. Contractor shall fully defend, indemnify and hold harmless City, its officers and employees, and each of them, from and against any and all claims, actions, lawsuits or other proceedings alleging that all or any part of the information prepared, produced, or provided by Contractor under this Contract infringes upon any third party’s trademark, trade name, copyright, patent or other intellectual property rights. City shall make reasonable efforts to notify Contractor not later than ten days after City is served with any such claim, action, lawsuit or other proceeding. However, City’s failure to provide notice within the ten-day period does not relieve Contractor of its obligations hereunder, which survive any termination or expiration of this Contract.
C. All proprietary and other information received from Contractor by City, whether received in connection with Contractor’s proposal to City or in connection with Contractor’s performance, will be disclosed upon receipt of a request for disclosure, in accordance with the California Public Records Act; provided, however, that, if any information is set apart and clearly marked “trade secret” when it is provided to City, City shall give notice to Contractor of any request for the disclosure of such information. The Contractor will then have five days from the date it receives notice to petition the court for a protective order to prevent the disclosure of the information. The Contractor shall have sole responsibility for defense of the actual “trade secret” designation of such information.
D. The parties understand and agree that any failure by Contractor to respond to the notice provided by City and seek a protective order, in accordance with the provisions of subsection C, above, constitutes a complete waiver by Contractor of any rights regarding the information designated “trade secret” by Contractor, and the information will be disclosed by City in accordance with the Public Records Act.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 4
9. Notification of Material Changes in Business. Contractor agrees that if it experiences any material changes in its business, including a reorganization, refinancing, restructuring, leveraged buyout, bankruptcy, name change, or loss of key personnel, it will immediately notify the City of the changes. Contractor also agrees to immediately notify the City of any condition that may jeopardize the scheduled delivery or fulfillment of Contractor's obligations to the City under this Contract.
10. Standard of Performance. Contractor shall perform in the manner and according to the standards currently observed by a competent practitioner of Contractor’s profession in California and in compliance with all requirements of this Contract. All products that Contractor delivers to City under this Contract must be prepared in a professional manner and conform to the standards of quality normally observed by a person currently practicing in Contractor’s profession.
Contractor shall assign only competent personnel to perform on its behalf under this Contract.
Contractor must notify the City in writing of any changes in Contractor’s staff assigned to perform under this Contract, before any performance by the new staff member. If the City, in its sole discretion, determines that any person assigned by the Contractor to perform under this Contract is not performing in accordance with the standards required herein, City shall provide notice to Contractor. Contractor shall immediately remove the assigned person upon receipt of the notice.
11. Performance or Different Terms and Conditions. The City's subsequent performance will not be construed as either acceptance of additional or different terms and conditions or a counteroffer by the Contractor, nor will the City's subsequent performance be viewed as acceptance of any provision of the Uniform Commercial Code, as adopted by any State, that is contrary to the terms and conditions contained herein. Contractor's performance shall conform to the applicable requirements of the Sacramento City Charter, Sacramento City Code, and all applicable State and Federal laws, and all the requirements of this Contract. The California Commercial Code will apply except as otherwise provided in the Contract.
12. Emergency/Declared Disaster Requirements. If an emergency is declared by the City Manager, or if any portion of the City is declared a disaster area by the county, state or federal government, this Contract may be subjected to increased usage. The Contractor shall serve the City during a declared emergency or disaster, subject to the same terms and conditions that apply during nonemergency / non-disaster conditions. The pricing set forth in this Contract will apply, without mark-up, regardless of the circumstances. If the Contractor is unable to fulfill the terms of the Contract because of a disruption in its chain of supply or service, then the Contractor shall provide proof of the disruption. Acceptable forms of proof will include a letter or notice from the Contractor's source stating the reason for the disruption
13. Term; Suspension; Termination.
A. This Contract is effective on the Effective Date and continues in effect until both parties have fully performed their respective obligations under this Contract, unless sooner terminated as provided herein.
B. City shall have the right at any time to suspend Contractor’s performance hereunder, in whole or in part, by giving a written notice of suspension to Contractor. Upon receipt of Form Approved by City Attorney 9-1-2020 Exhibit D - Page 5 such notice, Contractor shall immediately suspend its activities under this Contract, as specified in the notice.
C. The City shall have the right to terminate this Contract at any time by giving a written notice of termination to Contractor. Upon receipt of such notice, Contractor shall immediately cease performance under this Contract as specified in the notice. If the City terminates this Contract:
(1) Contractor shall, not later than five days after receipt of the notice, deliver all information prepared under this Contract to the City.
(2) The City shall pay Contractor the reasonable value of Goods or Services provided by Contractor before termination; provided, however, City shall not in any manner be liable for lost profits that might have been made by Contractor had the Contract not been terminated or had Contractor completed performance required by this Contract. Contractor shall furnish to the City any financial information requested by the City to determine the reasonable value of the Goods or Services provided by Contractor. The foregoing is cumulative and does not affect any right or remedy that City may have in law or equity.
14. Default by Contractor. In case of default by the Contractor, the City reserves the right to procure the Goods or Services from other sources and deduct from any monies due, or that may thereafter become due to the Contractor, the difference between the price named in this Contract and the actual cost to the City to procure from an alternate source. Prices paid by the City will be considered the prevailing market price at the time such purchase is made.
15. Guarantee and Warranty. Contractor assumes design responsibility and warrants the articles to be free from design defect and suitable for the purposes intended by City. If it is determined by the City that the Goods and Services do not meet the minimum requirements of this Contract, the Contractor shall correct the same at Contractor's sole expense.
A. The Contractor agrees that the Goods and Services furnished under this Contract will be covered by the industry standard or better warranty.
B. Contractor further warrants that the Goods and Services furnished under this Contract will be covered by the most favorable commercial warranties the Contractor gives to any customer for the Goods and Services and that the rights and remedies provided herein are in addition to and do not limit any rights afforded to the City at law or equity, or by any other clause of this Contract.
C. Any additional warranties provided by law, including the warranty of merchantability and warranty of fitness for a particular purpose will remain in full force and effect and inure to the City's benefit. City reserves all rights and remedies provided by law for breach of any applicable warranty related to the Goods and Services.
D. City's inspections, approval, acceptance, or payment for all or part of any Goods and Form Approved by City Attorney 9-1-2020 Exhibit D - Page 6 Services will in no way affect City's warranty rights.
16. Indemnity.
A. Indemnity: Contractor shall defend, hold harmless and indemnify CITY, its officers and employees, and each and every one of them, from and against all actions, damages, costs, liabilities, claims, demands, losses, judgments, penalties, costs and expenses of every type and description, whether arising on or off the site of the work or services performed under this Contract, including, any fees and costs reasonably incurred by City’s staff attorneys or outside attorneys and any fees and expenses incurred in enforcing this provision (hereafter collectively referred to as “Liabilities”), including Liabilities for personal injury or death, damage to personal, real or intellectual property, damage to the environment, contractual or other economic damages, or regulatory penalties, arising out of or in any way connected with performance of or failure to perform this Contract by Contractor, any subcontractor (including lower-tier subcontractors) or agent of Contractor, their respective officers and employees, and anyone else for whose acts or omissions any of them may be liable, whether or not the Liabilities (1) are caused in part by a party indemnified hereunder, or (ii) are litigated, settled or reduced to judgment; provided that the foregoing indemnity does not apply to liability for any damages for death or bodily injury to persons, injury to property, or other loss, damage, or expense, to the extent arising from the active negligence or willful misconduct of, or defects in design furnished by, City, its agents, servants, or independent contractors who are directly responsible to City, except when such agents, servants, or independent contractors are under the supervision and control of Contractor or any subcontractor (including lower-tier subcontractors) or agent of Contractor.
B. Insurance Policies; Intellectual Property Claims: The existence or acceptance by City of any of the insurance policies or coverages described in this Contract does not affect or limit any of City’s rights under this section, nor do the limits of any insurance limit the liability of Contractor hereunder. This section will not apply to any intellectual property claims, actions, lawsuits or other proceedings subject to the provisions of section 8.B., above.
C. Survival. The provisions of this section will survive any expiration or termination of this Contract.
17. Funding Availability.
A. This Contract is subject to the budget and fiscal provisions of the Charter and the Sacramento City Code.
B. The City’s payment obligation under this Contract will not exceed the amount of funds appropriated and approved for this Contract by the Sacramento City Council.
C. This Section shall govern over any other contrary provision of the Contract.
18. Equal Employment Opportunity. During the performance of this Contract, Contractor, for itself, its assignees and successors in interest, agrees as follows:
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 7 A. Compliance With Regulations: Contractor shall comply with all state, local, and federal anti-discrimination laws and regulations, including the Executive Order 11246 entitled “Equal Opportunity in Federal Employment,” as amended by Executive Order 11375, 12086, and 13672, and as supplemented in Department of Labor regulations (41 CFR Chapter 60), referred to collectively as the “Regulations.” B. Nondiscrimination: Contractor, with regards to the work performed by it after award and before completion of the work under this Contract, shall not discriminate on the ground of race, color, religion, sex, national origin, age, marital status, physical handicap or sexual orientation in selection and retention of subcontractors, including procurement of materials and leases of equipment. Contractor shall not participate either directly or indirectly in discrimination prohibited by the Regulations.
C. Solicitations for Subcontractors, Including Procurement of Materials and Equipment: In all solicitations either by competitive bidding or negotiations made by Contractor for work to be performed under any subcontract, including all procurement of materials or equipment, each potential subcontractor or supplier shall be notified by Contractor of Contractor’s obligation under this Contract and the Regulations relative to nondiscrimination on the ground of race, color, religion, sex, national origin, age, marital status, physical handicap or sexual orientation.
D. Information and Reports: Contractor shall provide all information and reports required by the Regulations, or by any orders or instructions issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the City to be pertinent to ascertain compliance with the Regulations, orders and instructions. Where any information required of Contractor is in the exclusive possession of another who fails or refuses to furnish this information, Contractor shall so certify to the City, and shall set forth what efforts it has made to obtain the information.
E. Sanctions for Noncompliance: In the event of noncompliance by Contractor with the nondiscrimination provisions of this Contract, the City shall impose any sanctions it determines are appropriate including:
(1) Withholding of payments to Contractor under this Contract until Contractor complies;
(2) Cancellation, termination, or suspension of this Contract, in whole or in part.
F. Incorporation of Provisions: Contractor shall include the provisions of subsections A through E, above, in every subcontract, including procurement of materials and leases of equipment, unless exempted by the Regulations, or by any order or instructions issued pursuant thereto. The City may direct Contractor to take specific actions to enforce these provisions, including sanctions for noncompliance; provided, however, that if Contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, Contractor may request that the City join such litigation to protect the City’s interests.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 8
19. Entire Agreement. This Contract, including all Exhibits and documents referenced herein, contains the entire agreement between the parties and supersedes whatever oral or written understanding they may have had before the execution of this Contract. No alteration to the terms of this Contract shall be valid unless approved in writing by Contractor, and by City, in accordance with applicable provisions of the Sacramento City Code.
20. Modification of Contract. The Contractor shall take no direction from any City employee that changes the executed terms and conditions of the Contract, including Exhibit A, or any change that impacts the cost, price, or schedule, before receiving a written, signed modification to the Contract.
21. Severability. If a court with jurisdiction rules that any portion of this Contract or its application to any person or circumstance is invalid or unenforceable, the remainder of this Contract will not be affected thereby and will remain valid and enforceable as written, to the greatest extent permitted by law.
22. Waiver. Neither the City’s acceptance of, or payment for, any Goods or Services, nor any waiver by either party of any default, breach or condition precedent, will be construed as a waiver of any provision of this Contract, nor as a waiver of any other default, breach or condition precedent or any other right hereunder. No waiver will be effective unless it is in writing and signed by the waiving party.
23. Governing Law. This Contract shall be governed, construed and enforced in accordance with the laws of the State of California, except that the rule of interpretation in California Civil Code section 1654 will not apply. Venue of any litigation arising out of this Contract will lie exclusively in the state trial court or Federal District Court located in Sacramento County in the State of California, and the parties consent to jurisdiction over their persons and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts.
24. Assignment Prohibited. The expertise and experience of Contractor are material considerations for this Contract. City has a strong interest in the qualifications and capability of the persons and entities that will fulfill the obligations imposed on Contractor under this Agreement. In recognition of this interest, Contractor shall not assign any right or obligation pursuant to this Contract without the written consent of the City. Any attempted or purported assignment without City’s written consent shall be void and of no effect.
25. Binding Effect. This Contract is binding on the heirs, executors, administrators, successors and assigns of the parties, subject to the provisions of Section 24, above.
26. Compliance with Laws. The Contractor shall be responsible for strict compliance with all applicable laws, regulations, court orders and other legal requirements applicable to the work to be accomplished under the Contract, including the California Occupational Safety and Health Act and all applicable safety orders issued by the Division of Occupational Safety and Health, Department of Industrial Relations, State of California, and all applicable requirements of Underwriters Laboratories and the Federal Communication Commission.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 9
27. Debarment Certification
A. Pursuant to 2 CFR, Part 200, and applicable Executive Orders, the City is restricted in its ability to contract with certain parties that are debarred, suspended, or otherwise excluded or ineligible for participating in Federal assistance programs or activities. By signing this Agreement, CONTRACTOR warrants and certifies under penalty of perjury under the laws of the State of California that Contractor, including any owner, partner, director, officer, or principal of the CONTRACTOR, or any person in a position with management responsibility or responsibility for the administration of federal funds:
(1) Is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal or state department/agency;
(2) Has not within a three-year period preceding this certification been convicted of or had a civil judgment rendered against it for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public transaction or contract (federal, state, or local); violation of federal or state antitrust statutes; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property, or other criminal felony; (3) Is not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state, or local) with commission of any of the offenses enumerated in paragraph (b) above; or
(4) Has not, within a three-year period preceding this certification, had one or more public contracts (federal, state, or local) or transactions terminated for cause or default. (5) Has not been notified, within a three-year period preceding this certification, been notified of any delinquent Federal taxes in an amount that exceeds $3,500 for which the liability remains unsatisfied. Federal taxes are considered delinquent if the tax liability has been finally determined and the taxpayer is delinquent in making payment, as defined in Section 52.209-5 of the Federal Acquisition Regulations.
B. CONTRACTOR further warrants and certifies that it shall not knowingly enter into any transaction with any subcontractor, material supplier, or vendor who is debarred, suspended, declared ineligible, or voluntarily excluded from covered transactions by any federal or state department/agency. Any exceptions to the warranties and certifications in this Section must be disclosed to the City.
C. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining Contractor’s responsibility. Disclosures must indicate to whom exceptions apply, the initiating agency, and dates of action.
D. City will review the Federal Government’s System for Award Management Exclusions maintained by the General Services Administration for eligibility, prior to the execution of this Agreement. The CONTRACTOR shall provide immediate written notice to the City if, at any time prior to execution, the CONTRACTOR learns this certification is erroneous or has become erroneous by reason of changed circumstances. If it is later determined that the Contractor’s warranties and certification in this Section were erroneous, the City may terminate this Agreement for default.
ATTACHMENT 1 TO EXHIBIT A – SCOPE OF SERVICES
1. SCOPE OF SERVICES
1.1 Scope of Services
The City of Sacramento seeks a firm that will provide the following services:
On-call contractors who can perform motor repairs and services, including emergency repairs, at the request of the DOU Staff, which shall identify specific tasks, deliverables, and deadlines on an as-needed basis. These repairs may include, but are not limited to, Rotor Inspection/ Test/ Repair, Stator Inspection/ Test/ Repair, Stator Rewinding, or Mechanical Inspection/ Reconditioning.
All work shall be in accordance with the Electrical Apparatus Service Association’s (EASA) Recommended Practice, AR100-2015 latest edition and the National Electrical Manufacturers Association (NEMA) standards for service and repair of electrical apparatus. Work shall be in conformance with standards set by, but not limited to, the following organizations:
1. Underwriters Laboratories (UL)
a. Underwriters Laboratories – Certified motors shall be recertified after repair. b. Contractor’s shop or his sub-contractor’s shop shall be UL-certified to rebuild explosion-proof electric motors for use in hazardous environments.
2. American National Standards Institute (ANSI)
3. American Society for Testing and Materials (ASTM)
4. National Electrical Code (NEC)
5. National Fire Protection Agency (NFPA)
6. National Electrical Manufacturers Association (NEMA) Qualifications
1. The City prefers that the Contractor be EASA Accredited, but it is not mandatory. The Contractor will provide a copy of the certification upon request by the City.
2. The City prefers that the Contractor or Contractor’s sub-contractor be certified as an “Explosion-Proof, UL Facility.” The Contractor will provide a copy of the certification upon request by the City.
3. Contractor shall be responsible for obtaining all O.E.M. technical documents, drawings, and parts when necessary.
4. Contractor shall have all engineering, design, metalizing, welding, heat treating, machining, balancing, calibrating, and testing capabilities necessary to completely refurbish/rewind electric motors. a. Equipment used for inspecting, calibrating, and testing pumps and motors shall be up-to-date and have calibration certificates, less than one year old, traceable to NIST standards where applicable.
Sample Motor List
SAMPLE LIST OF MOTORS FOR REFERENCE –NOT ALL INCLUSIVE
Make/Model HP Voltage Frame
Limitorque, 1YAB06837A2 5.1 230/460 184TR1
GE, 5K6257XH663A 30 230/460 B324TP12
GE, 5K6237XH90A 25 230/460 B284TP12
Fairbanks Morse, B2317 50 220/440 ZG2485P
GE, 5K6247XH541A 20 230/460 B324TP12
GE, K6333XC3A 150 440 6333P
Westinghouse 800 4160 GF-39C
Westinghouse 5V2699 400 4160 681-P
US Motors 300 4160 5012P
1.1.1 Recondition/Repair of Electric Motors
Reconditioning/repair of electric motors shall include the testing, disassembling, inspection, cleaning, dipping, baking of windings, replacement of bearings, replacing brushes, turning slip-rings, dynamically balancing all rotating elements, assembly, testing and painting at a minimum and include the following:
A. Pre-Disassembly Test
1. Using a 1000V meg-ohm meter, conduct verification of insulation integrity. Record the insulation resistance of the motor as brought in from the city. Acceptable criteria is 5 meg-ohms or higher.
2. Verify that heaters are operational and that other attached features, such as thermocouples, Resistive Thermal Devices (RTD), have continuity.
3. Single-phase test to check for open rotors. (After disassembly, rotors will be inspected for evidence of damaged, cracked, or open circuit bars or end rings. If there is evidence of faults, the rotor will be growltested.) The detection of any defect during testing shall be reported promptly to the Engineer or designee.
4. Documentation covered under this section shall include the condition of mechanical fits (i.e., shaft run out), cracked, broken or missing parts, test run at full voltage, current readings, meg reading, and surge comparison test as received. The Engineer shall be notified if acceptable criteria are not met.
B. Motor Disassembly
1. Completely disassemble motor and steam clean all mechanical parts using a mild detergent compatible with winding insulation; thoroughly rinse; bake dry.
2. Disassembly documentation shall include the cause of failure and/or conditions contributing to failure.
C. Motor Inspection
1. Visually inspect coils and windings for excessive wear, signs of conductor overheating or fatigue that possibly would not be apparent during an electrical test.
2. All stators windings/coils shall be surge- tested with an electronic surge tester specifically designed to apply a surge voltage stress test simultaneously between turns of a coil, between phases, from winding to ground and to detect short-circuited turns in winding under test. Testing shall be per EASA, IEEE 62.2, 112 and 7.2.3 standards. Infrared imaging shall be provided pre and post-test.
3. Air gap shall be measured and recorded at the 12, 3, 6 and 9 o’clock positions at both ends of the motor.
4. The motor shall be dismantled and inspected for defective components. Care should be taken during the disassembly to ensure components are marked for identification and orientation for reinstallation.
5. If the motor is in poor condition and cannot be repaired, reconditioned, or made as new, the Contractor shall notify the Engineer or their designee immediately.
D. Exciter/Slip Ring Inspection & Repair
1. Contractor shall inspect commutator for color and condition. It shall be clean, smooth, and have a polished brown color on brush contact races and show no signs of overheating. Any roughness shall be removed by sand papering or stoning. No emery cloth or emery stone is to be used.
2. Contractor shall advise the City if the commutator is found excessively rough.
3. Contractor shall inspect slip rings for uneven wear brush imprint, excessive arcing, and true concentric shape. Slip rings shall have a clean, smooth, and polished surface underbrush contact race. If this condition is not achievable, replacement of slip rings shall be required.
4. Contractor shall remove any black spots on slip rings by rubbing lightly with fine sandpaper.
5. Contractor shall clean and inspect all brush riggings, mounting points, measure and record insulation values and advise the City of any defects.
6. If the commutator requires repair, the commutator shall be turned down on a lathe to a true concentric shape, and mica undercut to accommodate the “turn down.” E. Mechanical Fit
1. Measure the bearing bores, shells, housings, and shaft journals using a micrometer. Shaft fits and housing fits shall comply with AR100-2015. Machine work shall be approved by the Engineer before being performed or machine work may not be paid for. Bearing journals, seal surfaces and bearing housing restoration shall be done by metalizing and machining or boring and sleeving. Documentation of before and after measurements shall be made.
2. Replace bearings per manufacturer’s specifications. All grease fittings, plugs, etc. shall be replaced unless otherwise indicated by the Engineer. Bearings shall be properly lubricated and bearing oil reservoirs shall be drained for shipping and installation. If Contractor is tasked with installation, Contractor shall be responsible for filling the bearing oil reservoir upon installation. All equipment shall be tagged with information as to whether bearing oil reservoirs were filled and what type of lubricant was used.
3. No knurling, peening or adhesives will be used as a means of retaining bearings to the shaft or in the bearing bracket.
4. Sleeve bearings shall be reused when possible. Clearance shall be maintained at a maximum of 0.002” for the first inch of shaft diameter plus 0.001” of additional inch of shaft diameter.
5. Sleeve bearing work is deemed outside the scope of this maintenance activity and shall not be completed without prior approval from the City. ASTM B23 alloy 2 or 3 shall be used for any rabbiting work required.
Sleeve bearing work shall be quoted based on paragraph 2.7 of this Specification.
6. Sleeve bearings shall have a minimum of 80% journal surface contact in a strip approximately one inch wide in the bottom half of the bearing.
7. Final “As-Left” bearing clearance data shall be taken and recorded.
8. Motor frames shall be degreased, cleaned, and painted with a quality coating system suitable for the motor application (primer and finish coat) from Carboline, Sherwin Williams or other manufacturer approved by the City.
9. Motor frames shall be degreased, cleaned, and painted with a quality coating system suitable for the motor application (primer and finish coat) from Carboline, Sherwin Williams or other manufacturer approved by the City.
F. Rotor Balancing
1. The rotor and shaft shall be visually inspected for physical damage or signs of abnormal operation.
2. A printout tape from the balance/analyzer shall be furnished detailing the final balance values. This tape will be attached to the recondition/repair/rewind documents when the motor is delivered.
3. A core loss test shall be performed on the rotor. Results shall be recorded in the test report.
4. Thoroughly clean and dry the rotor and shaft.
5. Inspect the rotor laminations and verify they are firm and secure on the shaft. Dress any minor rubs or burrs.
6. Inspect the rotor bars for signs of fatigue or cracking, especially at the end ring connections. NDE methods may be requested if questionable indications are found.
7. Inspect end rings for signs of overheating, arcing, or burning.
8. Inspect the shaft and coupling fits. Verify proper tolerances of the key/keyway.
9. Measure and record the shaft runout and inspect the bearing journals and seal areas for signs of overheating or scoring. Shaft metalizing, machining, straightening, or replacement is deemed outside the scope of this maintenance activity and shall not be completed without prior approval from the City.
10. Dynamically balance the rotor to a vibration level of 0.5 mils.
G. Stator Rewinding
1. All rewinding shall include complete reconditioning. Reconditioning is defined as replacement of bearings, seals, O-rings, oil and labor.
2. All re-winding to include thermal protection installation/replacement (if necessary).
3. Old windings shall be removed in a manner which prevents warping or cracking of the frame and deterioration of the core laminations or its magnetic qualities.
4. Stator slots and core laminations shall be cleaned, inspected, and dressed as necessary.
5. A stator core loss test shall be performed following winding removal and stator inspection.
6. Core damage that requires iron replacement or total restacking is deemed outside the scope of this maintenance activity and shall not be completed without prior approval from the City.
7. Rewind material specifications shall meet or exceed the existing windings with regard to the number and size of conductors and insulating capabilities (electrical and thermal). Materials shall be upgraded when physically possible.
8. A test coil shall be VPI treated with the stator. The coil shall be destructively examined to ensure full penetration of resin. Repeat VPI treatment as necessary to provide complete resin penetration.
9. The stator and test coil shall be dipped and baked a minimum of two times. The test coil is to be returned with the motor.
10. Following rewind, hi-pot at 1.7(2E + 1000) volts DC H. Motor Leads
1. Motor leads shall be permanently tagged with non-magnetic markers. Motor lead configuration shall not be altered.
I. Insulation
1. Windings shall be double dipped with Class H varnish and baked.
2. Machine-finished surfaces bore of the stator lamination and periphery of the rotor laminations shall be cleaned of all varnish and foreign materials. Photo documentation of this process shall be made prior to and after lamination.
J. Final Assembly Inspection/Test
1. Prior to assembly, machined surfaces shall be cleaned and polished and all threaded holes shall be cleaned and tapped.
2. Motor shall be reassembled with new nuts, bolts, and gaskets as necessary. Nuts and bolts shall be USA manufactured Grade 5 or better.
3. Bearings shall be properly positioned on the shaft.
4. Rotor to armature position on horizontal motors will be such that end thrust against either bearing is eliminated. Sleeve bearing end play shall be approximately 1/8” per inch of shaft journal diameter. Rolling element supplied machines shall have sufficient end plan to allow for shaft expansion caused by temperature rise.
5. Vertical machines shall have thrust bearings set per the manufacturer’s specification.
6. Rolling element bearings shall be properly lubricated in accordance with manufacturer’s recommendations and grease fittings removed and holes plugged.
7. Sleeve bearings shall be properly lubricated in accordance with manufacturer’s recommendations and oil ring freedom of movement verified.
8. Rotors shall be checked for freedom or rotation.
9. Perform and record the results of a low resistance phase test for each phase.
10. Perform and record the results of an insulation resistance test to ground for all windings. A polarization index shall be calculated and recorded for all medium voltage motors. Voltage test levels shall be consistent with the opening voltage of the motor being tested.
11. If previous test results are acceptable, the motor shall be energized at rated voltage and run for a period of one hour or until sleeve bearing temperatures have stabilized for a minimum of 15 minutes. Notify City representative of bearing temperatures above 160 degrees Fahrenheit.
12. During the test operation the following data is to be recorded at no longer than fifteen-minute intervals. a. Bearing Temperatures Stator
b. Temperatures Phase Currents
c. Phase Voltages
d. Vertical, Horizontal, Axial Vibrations
e. Blue shaft and scribe magnetic center on the motor shaft. f. Terminate test, shut down motor and drain oil from the bearings and tag appropriately. g. Complete final assembly as necessary and prepare motor for shipment.
K. Paint
1. The exterior of the motor shall be properly cleaned of rust and foreign material, prime painted, and finish painted with a good grade of machinery enamel, the same color as received unless otherwise specified.
Nameplates, machined surfaces, and internal parts shall be protected from paint.
2. When needed, the interiors of motor frames and parts shall be painted with an insulating paint. This includes rotors, bearing brackets, frame interiors and air deflectors.
3. Windings shall not be painted.
L. Incidentals
1. All incidental parts requiring replacement, such as bearings, coils, etc. shall be considered included in other items of bid and no additional compensation shall be allowed.
1.2.2. Rewinding of Electric Motors
When rewind is done in conjunction with a recondition or repair, many of the items below will be redundant and shall not be performed or charged for twice. The items below apply to stator only (including all labor, materials and testing necessary for work completion) and shall at a minimum include:
A. Pre-Disassembly Test
1. Using a 1000 meg-ohm meter, conduct verification for insulation integrity. Acceptable criteria is 2.0 megohms or higher.
2. A 5KV meg-ohm meter shall be used to verify insulation integrity of all 4160V motors.
3. Verify that heaters are operational and other attached features such as thermocouples have continuity.
4. Pre-disassembly documentation shall include the condition of mechanical fits (i.e., shaft run out), cracked, broken or missing parts, test run at full voltage, current readings, meg reading, and surge comparison test as received. The Engineer shall be notified if acceptable criteria are not met.
B. Stripping
1. Windings shall be removed by temperature-controlled burnout with oven temperature suppression. Burnout temperature shall not exceed 750 degrees Fahrenheit.
2. Windings shall be removed in such a fashion not to damage or distort the core iron. Upon removal of the old windings and insulation, the core shall be thoroughly cleaned and inspected for burrs, etc.
3. After the burnout procedure, the Contractor shall perform a stator core loss test to ensure the stator laminations are not heat damaged. If the stator core losses exceed four (4) watts per pound of core steel, notify the Engineer prior to proceeding forward.
C. Winding
1. General: Rewound motors shall meet or exceed all O.E.M. operating characteristics, unless otherwise specified by the Engineer. NEMA Class F insulation shall be used, unless otherwise specified. Magnet wire shall be a Quad Build, insulated wire of domestic manufacture that meets or exceeds NEMA specification MW-35A. After winding and prior to resin treatment, windings will be surge- comparison tested and the results documented.
2. The copper cross-sectional area shall be at least as large as the original winding.
3. Resin Treatment: Windings shall be double dipped with Class H varnish and baked.
4. Check all coils for overall coil shape. Perform a high frequency turn-to-turn dielectric test (surge test) in accordance with IEEE 522. Submit test results to the city. This shall be done prior to installation into the stator.
D. Motor Leads
1. Motor leads that are replaced must be the same length and configuration as the original leads. Leads will be permanently tagged with non-magnetic markers. Lead lengths shall be identified by the City when a request for service is made.
2. Resistive Temperature Devices (RTD) shall be reinstalled in original locations, 100 ohm platinum, unless otherwise specified.
3. Thermistors (PTC or NTC) shall be reinstalled in accordance with manufacturer specifications in their original locations as well.
4. Where originally installed, all leads for space heaters, RTD’s, and bearing temperature detectors shall be completely rewired with leads brought out to terminal box. Unless otherwise specified, winding and bearing temperature detectors shall have the same electrical characteristics as those originally installed.
E. Insulation
1. Windings shall be double dipped with Class H varnish and baked. Insulation shall be tested phase-to-phase and phase-to-ground at 1000 volts dc and yield a one-minute test result of 1000 meg- ohms or better.
F. Final Test
1. A 1000-volt meg-ohm meter shall be used to verify insulation continuity. This reading shall be documented.
After reassembly, motors shall be test-run at full nameplate voltage and documentation of current reading and vibration readings shall be provided to the end user. (NOTE: a 5KV meg-ohm meter shall be used on all 4160V motors.) Copper DC resistance tests, phase-to-phase, on rotor winding from slip rings shall be performed. If the rewound rotor fails to pass any test, the rotor shall be rejected. The Contractor shall rebuild and retest until all tests are approved by the City.
1.2.3. Machine Work
Machine work shall apply to, but not be limited to, the drilling and tapping of broken bolts, the repairing of damaged locking rings and stators, the replacing of power cords, power cord assemblies and power cord connectors and repairs to impellers, covers, volutes, mounting rails, bearing journals, and pump shafts.
1.2.4 Emergency Repairs
1. All emergency work shall be completed by the Contractor within forty-eight (48) hours after notification by the City and returned to the pickup location.
1.2.5 Documentation
All work performed to recondition, repair and/or rewind motors shall be supplemented with reports that verify all processes to accomplish each job order. Documentation shall include, but is not limited to, the following:
1. Pre-Disassembly Testing report for all activities as described.
2. Photo documentation of existing condition prior to fulfilling each described criteria of the disassembly test.
3. Motor Disassembly report, including photo documentation before and after cleaning.
4. Motor Inspection report, including stator core loss testing results. Photo documentation of coils, windings and conductors showing any signs of excessive wear or failure.
5. Mechanical fit measurements shall be recorded as specified. Photo documentation shall be submitted for all replaced bearings, grease fittings, plugs, etc.
6. Rotor balancing report as specified.
7. Insulation report as specified above. Before and after photo documentation of the windings prior to varnishing and baking.
8. Final test report as specified.
9. Pump Reconditioning report as specified.
All testing, inspections and incidentals related to required reports shall be considered included within the bid items for said testing report and no additional compensation shall be allowed.
1.2.6. Warranty/Guarantee
1. Contractor has the sole responsibility for ensuring and guaranteeing that the equipment and materials furnished or supplied meet the requirements of this specification.
2. All repair work and parts supplied shall be guaranteed for a minimum of one year from the date equipment is returned to service against defects in materials or workmanship supplied by the contractor. Any warranted failures shall be corrected at no cost to the City including transportation to and from the jobsite.
1.2.7. Transportation/Shipping
1. Contractor is responsible for ensuring motors are cleaned and properly prepared for shipment. This includes the proper handling of all waste resulting from any of the processes used during the motor maintenance activities.
2. Motors shall be protected against damage during transit. All motors will be covered, and rotors blocked. Oil shall be removed from bearings before shipment. A conspicuous tag shall be attached to each oil level sight glass indicating oil must be added to the bearings. Contractor will require City Staff to sign delivery receipts acknowledging the condition. Contractor understands that failure to properly tag motors will result in Contractor responsibility to repair or replace motors as needed.
3. Contractor shall supply all timbers, blocking and tie downs necessary to properly secure a motor during transit. Contractor shall be responsible for damages or losses during transit.
1.2.8. Service Facility
The successful contractor shall allow City of Sacramento personnel to visit their shop(s) if requested. A central service/repair phone number shall be provided to the City.
1.2.9 Pricing
1. Bidder shall include an Hourly Rate for all general and emergency repair work. The Hourly Rate schedule shall include all transportation, labor, materials, test and equipment pickup for the repair and refurbishment of electric pump motors.
1.2.10 Price Escalation
Pricing submitted with this bid shall be firm for the period of the contract. However, requests may be submitted prior to the end of each contract year (60 days in advance) to increase pricing based on industry adjustments.
Adjustments shall be based on the latest yearly percentage increase in the Consumer Price Index (CPI) as published by the Bureau of Labor Statistics, U.S. Department of Labor, and shall not exceed five percent (5%).
The annual increase or decrease in the CPI shall be the latest index published and available for the calendar year ending 12/31.
Any requested adjustment shall be fully documented. Any approved cost adjustment shall become effective on the beginning date of the approved contract extension.
Reconditioning Prices Shall Include:
Pricing shall include all tasks as outlined in Section 1.2.1 (Recondition/Repair of Electric Motors) above.
Complete Rewinding Prices Shall Include:
Pricing shall include all tasks as outlined in Section 1.2.2 (Rewinding of Electric Motors) above.
1. All reconditioning above
2. New windings
3. Coating/baking
4. Thermal protection installation/replacement
5. Heater & Resistive Thermal Device installation/replacement Field Support /Callout
Field support will be required on an as-needed basis. Field support shall be defined as a qualified Service Technician meeting with representatives of the City of Sacramento at the physical site of the trouble call. The Contractor shall respond within 1 day of callout during normal business hours (7:00 AM- 4:00 PM) to troubleshoot and diagnose problems. These calls may result in repair orders as needed. All repair work shall be done at Contractor’s site.
ATTACHMENT 1 TO EXHIBIT B - PRICING STRUCTURE
SMALL MOTORS (25 hp and smaller)
LABOR TYPE HOURLY RATE
Standard Shop Rate
Emergency/After Hours Rate
Straight Time In-Field Rate
Overtime In-Field Rate
% Mark up over cost for parts & materials
LARGE MOTORS (Over 25 hp in size)
LABOR TYPE HOURLY RATE
Standard Shop Rate
Emergency/After Hours Rate
Straight Time In-Field Rate
Overtime In-Field Rate
% Mark up over cost for parts & materials
SUBMERSIBLE MOTORS (25 hp and smaller)
LABOR TYPE HOURLY RATE
Standard Shop Rate
Emergency/After Hours Rate
Straight Time In-Field Rate
Overtime In-Field Rate
% Mark up over cost for parts & materials
SUBMERSIBLE MOTORS (Over 25 hp in size)
LABOR TYPE HOURLY RATE
Standard Shop Rate
Emergency/After Hours Rate
Straight Time In-Field Rate
Overtime In-Field Rate
% Mark up over cost for parts & materials
ALL ABOVE LABOR AND MARK-UP RATES SHALL BE FIRM THROUGH THE FIRST YEAR OF THE
AGREEMENT
Any unforeseen repairs that require a change to the cost of the repair estimate must be approved by the project manager prior to beginning the additional repairs.
If the estimated repair cost exceeds 50% of the replacement cost, the Contractor must call to get authorization for the repair before proceeding.
Any services, parts, replacements and/or repairs requested that are not specifically outlined herein will be quoted to the City using the percentage mark-up listed above.
CONTACT PERSON: E-MAIL:
PHONE: FAX:
SIGNATURE: DATE:
Form Approved by City Attorney 9-1-2020 Page 1
CONTRACT #: PRC003262
CONTRACT NAME: On-Call Electric Motor Repair Parts & Service CONTRACT PROJECT #: NA DEPARTMENT: Utilities
DIVISION: Engineering & Water Resources
CITY OF SACRAMENTO
GOODS AND NONPROFESSIONAL SERVICES AGREEMENT
THIS CONTRACT is made at Sacramento, California, by and between the CITY OF SACRAMENTO, a charter city and municipal corporation (“CITY”), and
Koffler Electrical Mechanical Apparatus Repair, Inc.
527 Whitney Street San Leandro, California 94577
(510) 567-0630 / [email protected]
(“Contractor”), as of the Effective Date, as defined below.
The City and Contractor agree as follows:
1. Effective Date. This Contract shall be effective beginning the date it is fully executed by the duly authorized parties.
2. Contract Documents. This Contract includes each of the following documents, which are attached or incorporated by this reference (referred to collectively as the “Contract Documents”):
Invitation to Bid, Request for Qualifications, or Request for Proposals, and any Addenda Exhibit A - Technical Specifications
Exhibit B – Payment
Exhibit C – Insurance
Exhibit D – General Conditions
Purchase Orders
If there is a conflict between the terms and conditions of any document prepared or provided by the Contractor and made a part of this Contract and the other terms or conditions of the Contract, the other terms and conditions of the Contract control.
3. Goods and Services. Subject to the terms and conditions set forth in this Contract, Contractor shall provide to City the goods, materials, equipment or supplies (“Goods”) and the nonprofessional services (“Services”) described in Exhibit A (referred to collectively as “Goods and Services”).
Contractor will not be compensated for goods, materials, equipment, supplies, or nonprofessional services outside the scope of Exhibit A (“Additional Goods and Services”) unless, before providing Additional Goods and Services: (a) Contractor notifies City and City agrees that Form Approved by City Attorney 9-1-2020 Page 2
the Additional Goods and Services are outside the scope of Exhibit A; (b) Contractor estimates the additional compensation required for these Additional Goods and Services; and (c) City, after notice, approves in writing a Supplemental Contract specifying the Additional Goods and Services and the amount of additional compensation to be paid Contractor.
City will have no obligations whatsoever under this Contract or any Supplemental Contract, unless and until this Contract or any Supplemental Contract is approved by the City as required by the Sacramento City Code. As used in this Contract, the term “Goods and Services” includes both Goods and Services and Additional Goods and Services as applicable.
4. Payment. City shall pay Contractor at the times and in the manner set forth in Exhibit B.
Contractor shall submit all invoices to City in the manner specified in Exhibit B.
5. Facilities and Equipment. Except as set forth below, Contractor shall, at its sole cost and expense, furnish all facilities and equipment required for Contractor to perform this Contract. City shall furnish to Contractor only the facilities and equipment listed below, if any.
Access to City facilities will be provided, as needed.
6. Insurance. Contractor shall, at its sole cost and expense, maintain the insurance coverage described in the attached Exhibit C.
7. General Conditions. Contractor shall comply with the terms and conditions set forth in the attached Exhibit D.
8. Non-Discrimination in Employee Benefits. This Contract may be subject to Sacramento City Code chapter 3.54, Non- Discrimination in Employee Benefits by City Contractors. A summary of the requirements, entitled "Requirements of the Non-Discrimination in Employee Benefits Code (Equal Benefits Ordinance),” can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
Contractor acknowledges and represents that Contractor has read and understands the requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.54. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance.
Contractor's violation of Sacramento City Code chapter 3.54 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
9. Living Wage. This Contract may be subject to Sacramento City Code chapter 3.58, Living Wage.
A summary of the requirements, entitled "Living Wage Requirements", can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
The Living Wage Ordinance is applicable to certain contracts with the City in an amount of $250,000 or more (either initial value or total value after amendment) or if the total value of all Contractor's contracts with the City is $250,000 or more over a 12-month period.
Form Approved by City Attorney 9-1-2020 Page 3
Contractor acknowledges and represents that Contractor has read and understands the requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.58. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance.
Contractor shall require applicable subcontractors to fully comply with all applicable requirements of Sacramento City Code chapter 3.58 and include these requirements in all subcontracts covered by Sacramento City Code chapter 3.58.
Contractor's violation of Sacramento City Code chapter 3.58 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
In addition, for Services that constitute "Public Works" under California Labor Code Section 1720 et seq., if both prevailing wage and living wage requirements apply, Contractor shall pay the higher of the two rates.
10. Considering Criminal Conviction Information in the Employment Application Process. This Contract may be subject to the requirements of Sacramento City Code chapter 3.62, Procedures for Considering Criminal Conviction Information in the Employment Application Process. A summary of the requirements, entitled “Ban-The-Box Requirements,” can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
The Ban-The-Box Requirements are applicable to certain contracts with the City in an amount of $250,000 or more (either initial value or total value after amendment) or if the total value of all Contractor's contracts with the City is $250,000 or more over a 12-month period.
Contractor acknowledges and represents that Contractor has read and understands these requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.62. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance. Contractor shall require applicable subcontractors to fully comply with all applicable requirements of Sacramento City Code chapter 3.62 and include these requirements in all subcontracts covered by Sacramento City Code chapter 3.62.
Contractor's violation of Sacramento City Code chapter 3.62 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
11. Local Business Enterprise Program. The Local Business Enterprise Program Participation Requirements ("LBE Participation Requirements") are applicable to this Contract. A summary of the requirements, entitled "LBE Participation Requirements," can be viewed at:
https://www.cityofsacramento.org/Finance/Procurement/Contract-Ordinances.
Form Approved by City Attorney 9-1-2020 Page 4
Contractor acknowledges and represents that Contractor has read and understands these requirements and shall fully comply with all applicable requirements of Sacramento City Code chapter 3.60. If requested by City, Contractor shall promptly provide any documents and information required by City to verify Contractor's compliance. Contractor shall require applicable subcontractors to fully comply with all applicable requirements of Sacramento City Code chapter 3.60 and include these requirements in all subcontracts covered by Sacramento City Code chapter 3.60.
Contractor's violation of Sacramento City Code chapter 3.60 constitutes a material breach of this Contract, for which the City may terminate the Contract and pursue all available legal and equitable remedies.
12. Authority. The person signing this Contract for Contractor represents and warrants that he or she has read, understands, and agrees to all the Contract terms and is fully authorized to sign this Contract on behalf of the Contractor and to bind the Contractor to the performance of the Contract’s obligations.
[Signature Pages Follow Exhibits]
Form Approved by City Attorney 9-1-2020 Exhibit A - Page 1
EXHIBIT A
TECHNICAL SPECIFICATIONS
1. Representatives.
The CITY Representative for this Agreement is:
Ray Wilderman, Superintendent
Department of Utilities
1395 35th Avenue, Sacramento, CA 95822
Phone: (916) 808-8067/E-mail: [email protected] The CONTRACTOR Representative for this Agreement is:
Ren Anderson / Vice President & Chief Financial Officer Koffler Electrical Mechanical Apparatus Repair, Inc.
527 Whitney Street San Leandro, California 94577
(510) 567-0630 / [email protected]
Unless otherwise provided in this Contract, all Contractor questions and correspondence pertaining to this Contract must be addressed to the City Representative. All City questions and correspondence must be addressed to the Contractor Representative.
2. Scope of Services. Contractor shall provide Goods and Services to City as set forth in Attachment 1 to this Exhibit A.
3. Quantities. The quantities stated in Attachment 1 to this Exhibit A or Exhibit B are only estimates of the City's requirements. Contractor shall furnish Goods and Services at the prices quoted, in accordance with the City's available funds and actual needs as they occur throughout the term of this Contract.
The City is not required to purchase all of the Goods and Services listed, or to expend all available funding reflected in Exhibits A or B.
4. Time of Performance. The Goods and Services described in this Contract shall be provided for One Year. The City may extend this Contract for up to Four (4) additional one-year terms, for a maximum five-year term. Contractor shall provide the Goods and Services in accordance with any schedule in Attachment 1 to this Exhibit A.
5. Delivery and Inspection.
A. Delivery. Unless otherwise stated by the City in writing, delivery of Goods shall be made to the City address set forth in Exhibit A. All shipments are Free on Board (F.O.B.) destination with freight prepaid unless otherwise stated.
Form Approved by City Attorney 9-1-2020 Exhibit A - Page 2 Contractor assumes full responsibility for all transportation scheduling and costs, including costs for containers, packing, handling, and insurance. The City reserves the right to request and receive a copy of the freight bill of lading on all purchases shipped F.O.B. prepaid and added.
Time is of the essence in the delivery. If delivery cannot be made as specified in Exhibit A or as otherwise stated by the City, Contractor shall notify the City immediately to request instructions on how to proceed and shall not make delivery before receipt of instructions.
Periods of performance may be extended if, in the sole judgment of the City, the cause of delay justifies an extension.
B. Inspections: Goods will be inspected at the destination before acceptance by an authorized representative of the City for workmanship, appearance, proper functioning of all equipment and systems, and conformance to all other requirements of this Contract. The Goods shall be delivered to City free of any liens or encumbrances.
Notwithstanding the requirements for any City inspection and testing at the destination and except where specialized inspections or testing are specified for performance solely by the City, Contractor shall perform or have performed the inspections or tests required to substantiate that all Goods provided under the Contract conform to the drawings, specifications, and other Contract requirements, including, if applicable, the technical requirements for the manufacturer's part number(s) specified.
C. Deficiencies: If deficiencies in the Goods are discovered, Contractor shall correct and redeliver the Goods for re-inspection and acceptance. The period for payment and/or commencement of discount period (if applicable) does not begin until corrective action is complete. The cost of storing rejected Goods and the cost for shipping rejected Goods back to the Contractor or point of origin shall be paid by Contractor.
D. Inspection of Facilities: If requested by the City, Contractor shall provide the City with an inspection tour of Contractor's facilities where any Goods will be designed, manufactured, or assembled by Contractor.
6. Title/Risk of Loss. Title, ownership, and risk of loss or damage of the Goods remains with the Contractor until the Goods are delivered to, inspected, and accepted by the City, except when the loss or damage is due to the sole negligence of the City.
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 1
EXHIBIT B
PAYMENT
1. Contractor’s Compensation. The total of all fees paid to the Contractor for the provision of Goods and Services as set forth in Exhibit A, including any authorized reimbursable expenses, shall not exceed the total sum of $ 3,000,000. The payments specified in this Exhibit B shall be the only payments made to Contractor unless the City approves a Supplemental Contract.
2. Pricing. Contractor shall be paid as set forth in Exhibit A or Attachment 1 to this Exhibit B and any applicable special provisions included in the request for bids or proposals. If there is a conflict between Exhibit A or Exhibit B and the Special Provisions, Exhibit A or Exhibit B controls.
3. Contractor’s Reimbursable Expenses. “Reimbursable Expenses” are limited to actual expenditures of Contractor for expenses that are necessary for the proper satisfaction of the Contract and are only payable if specifically authorized in advance in writing by the City.
4. Miscellaneous Charges. No additional charges will be allowed unless specified in the Contract, including charges for transportation, fuel, containers, packing, or disposal.
5. Price Adjustments for Goods. Unless otherwise stated, prices are maximum for the term of the Contract. Price adjustments, if allowed under this Contract, must be requested in writing and accompanied by the required information to substantiate the request for price adjustment, as set forth in the Contract. Any allowable request for price adjustment must be delivered to the City at least 30 days before the adjusted prices become effective. No price adjustment allowable under this Contract will be granted retroactively. The City must also be given the benefit of any decline in prices. If any price increase is granted by the City, the increase shall not be greater than 3% from the prior year.
6. Purchase Orders. Unless otherwise stated, a purchase order will be issued to the Contractor on behalf of the City. Purchase orders will cite the quantity of Goods or Services requested, the purchase amount, and time of performance. If the time of performance of this Contract extends beyond the close of the City's fiscal year, another purchase order may be issued. No purchase order supersedes any provision of this Contract. Contractor shall not deliver Goods or provide Services until Contractor receives a purchase order or other written notification by the City.
7. Payments to Contractor. Contractor is responsible for supplying all documentation necessary to verify invoices to the City’s satisfaction.
A. Payment terms are NET 30 days, unless the Contractor offers a prompt payment discount that was accepted by the City or as otherwise stated in this Contract. Any prompt payment discounts will be computed from the date of acceptance by the City, or from the date an invoice is received, whichever occurs later.
B. Invoices must be submitted to either of the addresses specified below. (1) Email. Submit email invoices and any attachments to:
[email protected]
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 2 (2) Postal Mail. If emailing is not an option, mail to:
A/P Processing Center
City of Sacramento
915 I Street, Floor 4
Sacramento, CA 95814-2608
C. All invoices submitted by CONTRACTOR must contain the following information:
(1) Job/Project Name
(2) CITY’s current Purchase Order Number
(3) Contractor’s Invoice Number
(4) Date of Invoice Issuance
(5) Work Order Number (if applicable)
(6) CITY representative identified on the Purchase Order (7) Contractor’s remit address
(8) Itemized description of items billed under Invoice
(9) Itemized description of all authorized Reimbursable Expenses (10) Itemized description of all applicable taxes (sales, use, excise, etc.) (11) Amount of Invoice (itemize all authorized Reimbursable Expenses) (12) Total Billed to Date under Contract (if applicable) D. Items must be separated into Goods, Services, and Reimbursable Expenses. All applicable sales, use, excise, or similar taxes, including federal excise tax, must be itemized separately on the invoice. Invoices that do not conform to the format outlined above will be returned to Contractor for correction. City is not responsible for delays in payment to Contractor resulting from Contractor’s failure to comply with the invoice format described above.
E. For Goods only, a bill of lading number and weight of shipment will be shown for shipments on the Government Bill of Lading.
F. Unless otherwise specified in this Contract, partial payments will not be made by the City and payment will not be due until the completion of the Goods order. No payment precludes the City’s right to inspect. Requests for payment status should be addressed to the City Representative for this Contract.
8. Additional Goods and Services. Additional Goods and Services shall be provided only when a Supplemental Contract authorizing the Additional Goods and Services is approved in writing by the City in accordance with the City’s contract amendment procedures. The City reserves the right to perform any Additional Services with its own staff or to retain other contractors to perform the Additional Services.
9. Billing Disputes. The burden of proof shall be on the Contractor to establish the accuracy of its invoices. Upon presentation and verification of the information provided by Contractor, the City will review all records and make a final determination and present its finding to Contractor.
10. Accounting Records of Contractor. During performance of this Contract and for a period of three Form Approved by City Attorney 9-1-2020 Exhibit B - Page 3 years after completion of performance, Contractor shall maintain all accounting and financial records related to this Contract, in accordance with generally accepted accounting practices, including records of Contractor’s costs for performance under this Contract and records of Contractor’s Reimbursable Expenses. Contractor shall keep and make records available for inspection and audit by representatives of the City upon reasonable written notice.
11. Sales Tax Requirements. The City is not exempt from paying sales tax. Sales tax must be shown on the invoice as a separate line item.
12. Use Tax Requirements. On out-of-state purchases, Contractor shall list its Use Tax Permit Number (if applicable) on the invoice, which authorizes Contractor to charge and collect California Sales Tax. The Purchase Order will include sales tax, if applicable to the purchase, regardless of whether an out-of-state Contractor collects California State sales tax or not.
The City shall pay Use Tax directly to the California Department of Tax and Fee Administration ("CDTFA") if the out-of-state Contractor is not required to collect California Sales Tax. During the performance of this Contract, Contractor, for itself, its assignees and successors in interest, agrees as follows:
A. Use Tax Direct Payment Permit: For all leases and purchases of tangible personal property used to perform the Contract and shipped from outside California, Contractor and any subcontractor(s) leasing or purchasing such tangible personal property shall obtain a Use Tax Direct Payment Permit from the CDTFA in accordance with the applicable CDTFA criteria and requirements.
B. Sellers Permit: For any construction contract and any construction subcontract in the amount of $5,000,000 or more, Contractor and the subcontractor(s) shall obtain sellers permits from the CDTFA and shall register the jobsite as the place of business for the purpose of allocating local sales and use tax to the City. Contractor and its subcontractors shall remit the self-accrued use tax to the CDTFA and shall provide a copy of each remittance to the City.
C. The above provisions apply in all instances unless prohibited by the funding source for the Contract.
13. Excise Tax Requirements. The City of Sacramento is exempt from the payment of Federal Excise Tax. An exemption certificate will be submitted to Contractor upon request. If Federal Excise Tax is applicable to the transaction, it must be so stated and excluded from the price.
14. Tax Payments. Contractor shall pay, when and as due, any and all taxes incurred as a result of Contractor’s compensation hereunder, including estimated taxes, and shall provide CITY with proof of the payment upon request. Contractor hereby agrees to indemnify CITY for any claims, losses, costs, fees, liabilities, damages or injuries suffered by CITY arising out of Contractor’s breach of this section.
15. Public Works Requirements. [To be completed by the City Representative:] The services provided under this Contract include [check one if applicable]:
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 4 ________ Construction work in an amount exceeding $25,000; ________ Land Surveying, material testing, or inspection services provided for a City construction project during the design, pre-construction, construction, or post-construction phases of the project; or
________ Alteration, demolition, repair, or maintenance work in an amount exceeding $15,000.
If any of the lines is checked above, this Contract includes “Public Work” under the California Labor Code and is subject to the following requirements:
A. Payment of Prevailing Wages: Contractor and any subcontractor(s) performing any Public Work shall comply with the provisions of Sacramento City Code section 3.60.180 and applicable provisions of the California Labor Code, which require, among other things, that Contractor and all subcontractors pay not less than the prevailing rate of wages, as determined by the Director of the California Department of Industrial Relations (“DIR”) in accordance with California Labor Code section 1773. Contractor and every subcontractor shall maintain payroll records and submit certified payrolls and other labor compliance documentation electronically when and as required by CITY. In addition, Labor Code Section 1771.4 requires the Contractor and any subcontractor performing any Public Work to furnish electronic payroll records directly to the Labor Commissioner. Contractor shall include these requirements in every subcontract.
This Agreement is subject to compliance monitoring and enforcement by the DIR, as specified in California Labor Code section 1771.4. The Contractor and any subcontractor will be subject to withholding and penalties for violation of prevailing wage requirements in accordance with applicable law, including Labor Code Sections 1726, 1741, 1771.5, and 1775, and City Code Section 3.60.180. Questions regarding the City’s Labor Compliance Program should be directed to the City Representative.
B. DIR Registration: California Labor Code Section 1725.5 requires the Contractor and all subcontractors performing Public Works services to be currently registered with the DIR, as specified in California Labor Code Section 1725.5. California Labor Code Section 1771.1 provides that a contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal (subject to the requirements of Section 4104 of the California Public Contract Code), or engage in the performance of any contract for Public Work, unless currently registered and qualified to perform Public Work in accordance with California Labor Code Section 1725.5.
Further information can be found on DIR’s website at http://www.dir.ca.gov/PublicWorks/Contractors.html. The above summary is provided solely for informational purposes and does not in any way affect the Contractor’s and subcontractors’ obligation to comply in all respects with all other applicable laws and regulations. The Contractor shall disseminate these provisions to all subcontractors.
Form Approved by City Attorney 9-1-2020 Exhibit B - Page 5 Before the performance of work by Contractor or any subcontractor(s) under this Contract, Contractor shall furnish Contractor’s and any subcontractors’ current DIR registration number(s). The Contractor’s current DIR registration number and the current DIR registration number of all subcontractors will be listed on the Subcontractor and LBE Participation Verification Form, incorporated herein.
C. Workers’ Compensation Certification. In accordance with California Labor Code Section 1861, by signing this Contract, Contractor acknowledges and represents that Contractor is aware of the provisions of section 3700 of the California Labor Code which requires every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and that Contractor will comply with the provisions of the Labor Code before commencing performance under this Contract.
D. Apprentices. If this Contract is for the performance of any Public Work, and the amount of the Contract is $30,000 or more, the Contractor and any subcontractors performing any Public Work under this Contract must comply with and be subject to enforcement under, the provisions of Sacramento City Code Section 3.60.190, Section 1777.5 et seq. of the California Labor Code, and implementing regulations set forth in Title 8 of the California Code of Regulations, governing the employment of apprentices. The Contractor and any subcontractors performing Public Work will be subject to penalties for apprenticeship violations in accordance with Labor Code Section 1777.7.
E. Working Hours. If this Contract is for the performance of any Public Work, Contractor and any subcontractors performing any Public Work under this Contract must comply with and be subject to enforcement under, the provisions of Sacramento City Code Section 3.60.180 and California Labor Code Section 1810 et seq., governing the working hours of employees performing Public Work.
F. Failure to Comply with Labor Compliance. If all applicable labor compliance requirements are not met, the City will have the right to withhold or reject a payment request and/or invoice, in whole or in part, without in any way relieving Contractor or its subcontractors of any obligations under this Contract.
G. Subcontractors. The Contractor shall include these provisions A through F in every subcontract or sub-agreement for any subcontractors performing work under this Contract.
Form Approved by City Attorney 9-1-2020 Exhibit C - Page 1
EXHIBIT C
INSURANCE
1. Insurance Requirements. During the entire term of this Contract, Contractor shall maintain the insurance coverage described in the Insurance Terms below. Full compensation for all premiums that Contractor is required to pay for the insurance coverage described herein shall be included in the compensation specified under this Contract. No additional compensation will be provided for Contractor's insurance premiums. Any available insurance proceeds in excess of the specified minimum limits and coverages shall be available to the City.
Contractor's liability to the City is not in any way limited to or affected by the amount of insurance coverage required or carried by the Contractor in connection with this Contract.
2. General Liability Minimum Scope and Limits of Insurance Coverage. Commercial General Liability Insurance is required providing coverage at least as broad as ISO CGL Form 00 01 on an occurrence basis for bodily injury, including death, of one or more persons, property damage, and personal injury, arising out of activities performed by or on behalf of the Contractor and subcontractors, products and completed operations of Contractor and subcontractors, and premises owned, leased, or used by Contractor and subcontractors, with limits of not less than one million dollars ($1,000,000) per occurrence. The policy shall provide contractual liability and products and completed operations coverage for the term of the policy.
The City, its officials, employees and volunteers shall be covered by policy terms or endorsement as additional insureds as respects general liability arising out of: activities performed by or on behalf of Contractor and subcontractors; products and completed operations of Contractor and subcontractors; and premises owned, leased, or used by Contractor and subcontractors.
3. Automobile Liability Minimum Scope and Limits of Insurance Coverage. (Check the applicable provision.)
_X_ Automobile Liability Insurance is required providing coverage at least as broad as ISO Form CA 00 01 for bodily injury, including death, of one or more persons, property damage and personal injury, with limits of not less than one million dollars ($1,000,000) per occurrence. The policy shall provide coverage for owned, non-owned and/or hired autos as appropriate to the operations of the Contractor.
The City, its officials, employees and volunteers shall be covered by policy terms or endorsement as additional insureds as respects auto liability. ___ No automobile liability insurance is required, and by signing this Contract, Contractor certifies as follows:
“Contractor certifies that a motor vehicle will not be used in the performance of any work or services under this agreement. If, however, Contractor does transport items under this Contract, or this Contract is amended to require any employees of Contractor to use a Form Approved by City Attorney 9-1-2020 Exhibit C - Page 2 vehicle to perform services under the Contract, Contractor understands that it must maintain and provide evidence of Automobile Liability Insurance providing coverage at least as broad as ISO Form CA 00 01 for bodily injury, including death, of one or more persons, property damage and personal injury, with limits of not less than one million dollars ($1,000,000) per occurrence. The policy shall provide coverage for owned, nonowned and/or hired autos as appropriate to the operations of the Contractor.”
4. Excess Insurance. The minimum limits of insurance required above may be satisfied by a combination of primary and umbrella or excess insurance coverage, provided that any umbrella or excess insurance contains, or is endorsed to contain, a provision that it will apply on a primary basis for the benefit of the City, and any insurance or self-insurance maintained by City, its officials, employees, or volunteers will be in excess of Contractor's umbrella or excess coverage and will not contribute to it.
5. Workers’ Compensation Minimum Scope and Limits of Insurance Coverage. (Check the applicable provision.)
_X_ Workers’ Compensation Insurance is required with statutory limits and Employers' Liability Insurance with limits of not less than one million dollars ($1,000,000). The Workers' Compensation policy shall include a waiver of subrogation in favor of the City.
___ No work or services will be performed on or at CITY facilities or CITY Property, therefore a Workers’ Compensation waiver of subrogation in favor of the CITY is not required. ___ No Workers’ Compensation insurance is required, and by signing this Contract, Contractor certifies as follows:
“Contractor certifies that its business has no employees, and that it does not employ anyone, and is therefore exempt from the legal requirements to provide Workers' Compensation insurance. If, however, Contractor hires any employee during the term of this Contract, Contractor understands that Workers’ Compensation with statutory limits and Employer’s Liability Insurance with a limit of not less than one million dollars ($1,000,000) is required. The Workers’ Compensation policy will include a waiver of subrogation in favor of the City.”
6. Other Insurance Provisions. The policies must contain, or be endorsed to contain, the following provisions:
A. Contractor's insurance coverage, including excess insurance, shall be primary insurance as respects the City, its officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officials, employees or volunteers will be in excess of Contractor's insurance and will not contribute with it.
B. Any failure to comply with reporting provisions of the policies will not affect coverage provided to the City, its officials, employees or volunteers.
C. Coverage shall state that Contractor's insurance applies separately to each insured Form Approved by City Attorney 9-1-2020 Exhibit C - Page 3 against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
D. Contractor shall provide the City with 30 days written notice of cancellation or material change in the policy language or terms.
7. Acceptability of Insurance. Insurance must be placed with insurers with a Bests' rating of not less than A:VI. Self-insured retentions, policy terms or other variations that do not comply with the requirements of this Exhibit C must be declared to and approved by the City in writing before execution of this Contract.
8. Verification of Coverage.
A. Contractor shall furnish City with certificates and required endorsements evidencing the insurance required. Certificates of insurance must be signed by an authorized representative of the insurance carrier. Copies of policies shall be delivered to the City Representative on demand.
B. Contractor shall send all insurance certificates and endorsements, including policy renewals, during the term of this Contract directly to:
City of Sacramento
c/o Exigis LLC
PO Box 947
Murrieta, CA 92564
C. Certificate Holder must be listed as:
City of Sacramento
c/o Exigis LLC
PO Box 947
Murrieta, CA 92564
D. The City may withdraw its offer of Contract or cancel this Contract if the certificates of insurance and endorsements required have not been provided before execution of this Contract. The City may withhold payments to Contractor and/or cancel the Contract if the insurance is canceled or Contractor otherwise ceases to be insured as required herein.
9. Subcontractor Insurance Coverage. Contractor shall require and verify that all subcontractors maintain insurance coverage that meets the minimum scope and limits of insurance coverage specified in this Exhibit C.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 1
EXHIBIT D
GENERAL CONDITIONS
1. Independent Contractor. A. It is understood and agreed that Contractor (including Contractor’s employees) is an independent contractor and that no relationship of employer-employee exists between the parties hereto for any purpose whatsoever. Neither Contractor nor Contractor’s assigned personnel will be entitled to any benefits payable to CITY employees. CITY is not required to make any deductions or withholdings from the compensation payable to Contractor under the provisions of this Contract, and Contractor will be issued a Form 1099 for its services hereunder. As an independent contractor, Contractor hereby agrees to indemnify and hold CITY harmless from any and all claims that may be made against CITY based upon any contention by any of Contractor’s employees or by any third party, including any state or federal agency, that an employer-employee relationship or a substitute therefor exists for any purpose whatsoever by reason of this Contract or by reason of the nature and/or performance under this Contract.
B. It is further understood and agreed by the parties that Contractor, in the performance of its obligations, is subject to the City’s control and direction as to the designation of tasks to be performed and the results to be accomplished under this Contract, but not as to the means, methods, or sequence used by Contractor for accomplishing the results. To the extent that Contractor obtains permission to, and does, use CITY facilities, space, equipment or support services in the performance of this Contract, this use will be at the Contractor’s sole discretion based on the Contractor’s determination that the use will promote Contractor’s efficiency and effectiveness. Except as may be specifically provided elsewhere in this Contract, the CITY does not require that Contractor use CITY facilities, equipment or support services or work in CITY locations in the performance of this Contract. As used in this Contract, "sole discretion" or "sole judgment" means that the party authorized to exercise its discretion or judgment may do so based on an unfettered assessment of its own interests, without considering how its decision affects the other party, and unconstrained by the implied covenant of good faith and fair dealing.
C. If, in the performance of this Contract, any third persons are employed by Contractor, such persons will be entirely and exclusively under the direction, supervision, and control of Contractor. Except as otherwise provided in this Contract, all terms of employment, including hours, wages, working conditions, discipline, hiring, and discharging, or any other terms of employment or requirements of law, shall be determined by Contractor.
It is further understood and agreed that Contractor will issue W-2 or 1099 Forms for income and employment tax purposes for all Contractor’s assigned personnel and subcontractors.
D. The provisions of this section will survive any expiration or termination of this Contract.
Nothing in this Contract creates an exclusive relationship between CITY and Contractor.
Contractor may represent, perform services for, or be employed by any additional persons or companies so long as Contractor does not violate the provisions of Section 5, below.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 2
2. Licenses; Permits, Etc. Contractor represents and warrants that Contractor has, and shall maintain at all times during the term of this Contract at its sole cost and expense, all licenses, permits, qualifications, and approvals of any nature that are legally required for Contractor to practice its profession or fulfill the terms of this Contract, including a City Business Operations Tax Certificate and any required certification issued by the California Secretary of State.
3. Time. Time is off the essence in the performance of this Contract. Contractor shall devote the necessary time and effort to its performance under this Contract. Neither party will be considered in default of this Contract, to the extent that party’s performance is prevented or delayed by any cause, present or future, that is beyond the reasonable control of that party.
4. Contractor Not Agent. Except as City may specify in writing, Contractor and Contractor’s personnel have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor and Contractor’s personnel shall have no authority, express or implied, to bind City to any obligations whatsoever.
5. Conflicts of Interest. Contractor covenants that neither it, nor any officer or principal of its firm, has or will acquire any interest, directly or indirectly, that would conflict in any manner with the City’s interests or that would in any way hinder Contractor’s performance under this Contract.
Contractor further covenants that in the performance of this Contract, no person having any such interest will be employed by it as an officer, employee, agent or subcontractor, without the City’s written consent.
Contractor agrees to avoid conflicts of interest or the appearance of any conflicts of interest with the City’s interests during the performance of this Contract. If Contractor is or employs a former officer or employee of the City, Contractor and any former City officer or employee shall comply with the provisions of Sacramento City Code Section 2.16.090 pertaining to appearances before the City Council or any City department, board, commission, or committee.
6. Hazardous Substances. "Hazardous Substances" means any substance, material, waste, or other pollutant or contaminant that is or becomes designated, classified, or regulated as hazardous or toxic under any law, regulation, rule, order, decree, or other governmental requirement now in effect or later enacted. If Contractor is shipping Hazardous Substances, Contractor must supply a Safety Data Sheet ("SDS") with the first shipment of Hazardous Substances to each City location receiving the Hazardous Substances. If the content of an SDS is revised, Contractor must provide a revised SDS to each City location receiving Hazardous Substances.
7. Confidentiality of City Information. During performance of this Contract, Contractor may gain access to and use City information regarding inventions, machinery, products, prices, apparatus, costs, discounts, future plans, business affairs, governmental affairs, processes, trade secrets, technical matters, systems, facilities, customer lists, product design, copyright, data, and other vital information (hereafter collectively referred to as “City Information”) that are valuable, special and unique assets of the City.
Contractor agrees to protect all City Information and treat it as strictly confidential, and further agrees that Contractor shall not at any time, either directly or indirectly, divulge, disclose or Form Approved by City Attorney 9-1-2020 Exhibit D - Page 3 communicate in any manner any City Information to any third party without the City’s prior written consent.
In addition, Contractor must comply with all City policies governing the use of the CITY network and technology systems, as set forth in applicable provisions of the City of Sacramento Administrative Policy Instructions # 30. A violation by Contractor of this section is a material violation of this Contract and shall justify legal and equitable relief.
8. Contractor Information.
A. City shall have full ownership and control, including ownership of any copyrights, of all information prepared, produced, or provided by Contractor under this Contract. In this Contract, the term “information” means and includes: any and all work product, submittals, reports, plans, specifications, and other deliverables consisting of documents, writings, handwritings, typewriting, printing, photostatting, photographing, computer models, and any other computerized data and every other means of recording any form of information, communications, or representation, including letters, works, pictures, drawings, sounds, or symbols, or any combination thereof. Contractor shall not be responsible for any unauthorized modification or use of such information for other than its intended purpose by City.
B. Contractor shall fully defend, indemnify and hold harmless City, its officers and employees, and each of them, from and against any and all claims, actions, lawsuits or other proceedings alleging that all or any part of the information prepared, produced, or provided by Contractor under this Contract infringes upon any third party’s trademark, trade name, copyright, patent or other intellectual property rights. City shall make reasonable efforts to notify Contractor not later than ten days after City is served with any such claim, action, lawsuit or other proceeding. However, City’s failure to provide notice within the ten-day period does not relieve Contractor of its obligations hereunder, which survive any termination or expiration of this Contract.
C. All proprietary and other information received from Contractor by City, whether received in connection with Contractor’s proposal to City or in connection with Contractor’s performance, will be disclosed upon receipt of a request for disclosure, in accordance with the California Public Records Act; provided, however, that, if any information is set apart and clearly marked “trade secret” when it is provided to City, City shall give notice to Contractor of any request for the disclosure of such information. The Contractor will then have five days from the date it receives notice to petition the court for a protective order to prevent the disclosure of the information. The Contractor shall have sole responsibility for defense of the actual “trade secret” designation of such information.
D. The parties understand and agree that any failure by Contractor to respond to the notice provided by City and seek a protective order, in accordance with the provisions of subsection C, above, constitutes a complete waiver by Contractor of any rights regarding the information designated “trade secret” by Contractor, and the information will be disclosed by City in accordance with the Public Records Act.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 4
9. Notification of Material Changes in Business. Contractor agrees that if it experiences any material changes in its business, including a reorganization, refinancing, restructuring, leveraged buyout, bankruptcy, name change, or loss of key personnel, it will immediately notify the City of the changes. Contractor also agrees to immediately notify the City of any condition that may jeopardize the scheduled delivery or fulfillment of Contractor's obligations to the City under this Contract.
10. Standard of Performance. Contractor shall perform in the manner and according to the standards currently observed by a competent practitioner of Contractor’s profession in California and in compliance with all requirements of this Contract. All products that Contractor delivers to City under this Contract must be prepared in a professional manner and conform to the standards of quality normally observed by a person currently practicing in Contractor’s profession.
Contractor shall assign only competent personnel to perform on its behalf under this Contract.
Contractor must notify the City in writing of any changes in Contractor’s staff assigned to perform under this Contract, before any performance by the new staff member. If the City, in its sole discretion, determines that any person assigned by the Contractor to perform under this Contract is not performing in accordance with the standards required herein, City shall provide notice to Contractor. Contractor shall immediately remove the assigned person upon receipt of the notice.
11. Performance or Different Terms and Conditions. The City's subsequent performance will not be construed as either acceptance of additional or different terms and conditions or a counteroffer by the Contractor, nor will the City's subsequent performance be viewed as acceptance of any provision of the Uniform Commercial Code, as adopted by any State, that is contrary to the terms and conditions contained herein. Contractor's performance shall conform to the applicable requirements of the Sacramento City Charter, Sacramento City Code, and all applicable State and Federal laws, and all the requirements of this Contract. The California Commercial Code will apply except as otherwise provided in the Contract.
12. Emergency/Declared Disaster Requirements. If an emergency is declared by the City Manager, or if any portion of the City is declared a disaster area by the county, state or federal government, this Contract may be subjected to increased usage. The Contractor shall serve the City during a declared emergency or disaster, subject to the same terms and conditions that apply during nonemergency / non-disaster conditions. The pricing set forth in this Contract will apply, without mark-up, regardless of the circumstances. If the Contractor is unable to fulfill the terms of the Contract because of a disruption in its chain of supply or service, then the Contractor shall provide proof of the disruption. Acceptable forms of proof will include a letter or notice from the Contractor's source stating the reason for the disruption
13. Term; Suspension; Termination.
A. This Contract is effective on the Effective Date and continues in effect until both parties have fully performed their respective obligations under this Contract, unless sooner terminated as provided herein.
B. City shall have the right at any time to suspend Contractor’s performance hereunder, in whole or in part, by giving a written notice of suspension to Contractor. Upon receipt of Form Approved by City Attorney 9-1-2020 Exhibit D - Page 5 such notice, Contractor shall immediately suspend its activities under this Contract, as specified in the notice.
C. The City shall have the right to terminate this Contract at any time by giving a written notice of termination to Contractor. Upon receipt of such notice, Contractor shall immediately cease performance under this Contract as specified in the notice. If the City terminates this Contract:
(1) Contractor shall, not later than five days after receipt of the notice, deliver all information prepared under this Contract to the City.
(2) The City shall pay Contractor the reasonable value of Goods or Services provided by Contractor before termination; provided, however, City shall not in any manner be liable for lost profits that might have been made by Contractor had the Contract not been terminated or had Contractor completed performance required by this Contract. Contractor shall furnish to the City any financial information requested by the City to determine the reasonable value of the Goods or Services provided by Contractor. The foregoing is cumulative and does not affect any right or remedy that City may have in law or equity.
14. Default by Contractor. In case of default by the Contractor, the City reserves the right to procure the Goods or Services from other sources and deduct from any monies due, or that may thereafter become due to the Contractor, the difference between the price named in this Contract and the actual cost to the City to procure from an alternate source. Prices paid by the City will be considered the prevailing market price at the time such purchase is made.
15. Guarantee and Warranty. Contractor assumes design responsibility and warrants the articles to be free from design defect and suitable for the purposes intended by City. If it is determined by the City that the Goods and Services do not meet the minimum requirements of this Contract, the Contractor shall correct the same at Contractor's sole expense.
A. The Contractor agrees that the Goods and Services furnished under this Contract will be covered by the industry standard or better warranty.
B. Contractor further warrants that the Goods and Services furnished under this Contract will be covered by the most favorable commercial warranties the Contractor gives to any customer for the Goods and Services and that the rights and remedies provided herein are in addition to and do not limit any rights afforded to the City at law or equity, or by any other clause of this Contract.
C. Any additional warranties provided by law, including the warranty of merchantability and warranty of fitness for a particular purpose will remain in full force and effect and inure to the City's benefit. City reserves all rights and remedies provided by law for breach of any applicable warranty related to the Goods and Services.
D. City's inspections, approval, acceptance, or payment for all or part of any Goods and Form Approved by City Attorney 9-1-2020 Exhibit D - Page 6 Services will in no way affect City's warranty rights.
16. Indemnity.
A. Indemnity: Contractor shall defend, hold harmless and indemnify CITY, its officers and employees, and each and every one of them, from and against all actions, damages, costs, liabilities, claims, demands, losses, judgments, penalties, costs and expenses of every type and description, whether arising on or off the site of the work or services performed under this Contract, including, any fees and costs reasonably incurred by City’s staff attorneys or outside attorneys and any fees and expenses incurred in enforcing this provision (hereafter collectively referred to as “Liabilities”), including Liabilities for personal injury or death, damage to personal, real or intellectual property, damage to the environment, contractual or other economic damages, or regulatory penalties, arising out of or in any way connected with performance of or failure to perform this Contract by Contractor, any subcontractor (including lower-tier subcontractors) or agent of Contractor, their respective officers and employees, and anyone else for whose acts or omissions any of them may be liable, whether or not the Liabilities (1) are caused in part by a party indemnified hereunder, or (ii) are litigated, settled or reduced to judgment; provided that the foregoing indemnity does not apply to liability for any damages for death or bodily injury to persons, injury to property, or other loss, damage, or expense, to the extent arising from the active negligence or willful misconduct of, or defects in design furnished by, City, its agents, servants, or independent contractors who are directly responsible to City, except when such agents, servants, or independent contractors are under the supervision and control of Contractor or any subcontractor (including lower-tier subcontractors) or agent of Contractor.
B. Insurance Policies; Intellectual Property Claims: The existence or acceptance by City of any of the insurance policies or coverages described in this Contract does not affect or limit any of City’s rights under this section, nor do the limits of any insurance limit the liability of Contractor hereunder. This section will not apply to any intellectual property claims, actions, lawsuits or other proceedings subject to the provisions of section 8.B., above.
C. Survival. The provisions of this section will survive any expiration or termination of this Contract.
17. Funding Availability.
A. This Contract is subject to the budget and fiscal provisions of the Charter and the Sacramento City Code.
B. The City’s payment obligation under this Contract will not exceed the amount of funds appropriated and approved for this Contract by the Sacramento City Council.
C. This Section shall govern over any other contrary provision of the Contract.
18. Equal Employment Opportunity. During the performance of this Contract, Contractor, for itself, its assignees and successors in interest, agrees as follows:
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 7 A. Compliance With Regulations: Contractor shall comply with all state, local, and federal anti-discrimination laws and regulations, including the Executive Order 11246 entitled “Equal Opportunity in Federal Employment,” as amended by Executive Order 11375, 12086, and 13672, and as supplemented in Department of Labor regulations (41 CFR Chapter 60), referred to collectively as the “Regulations.” B. Nondiscrimination: Contractor, with regards to the work performed by it after award and before completion of the work under this Contract, shall not discriminate on the ground of race, color, religion, sex, national origin, age, marital status, physical handicap or sexual orientation in selection and retention of subcontractors, including procurement of materials and leases of equipment. Contractor shall not participate either directly or indirectly in discrimination prohibited by the Regulations.
C. Solicitations for Subcontractors, Including Procurement of Materials and Equipment: In all solicitations either by competitive bidding or negotiations made by Contractor for work to be performed under any subcontract, including all procurement of materials or equipment, each potential subcontractor or supplier shall be notified by Contractor of Contractor’s obligation under this Contract and the Regulations relative to nondiscrimination on the ground of race, color, religion, sex, national origin, age, marital status, physical handicap or sexual orientation.
D. Information and Reports: Contractor shall provide all information and reports required by the Regulations, or by any orders or instructions issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information and its facilities as may be determined by the City to be pertinent to ascertain compliance with the Regulations, orders and instructions. Where any information required of Contractor is in the exclusive possession of another who fails or refuses to furnish this information, Contractor shall so certify to the City, and shall set forth what efforts it has made to obtain the information.
E. Sanctions for Noncompliance: In the event of noncompliance by Contractor with the nondiscrimination provisions of this Contract, the City shall impose any sanctions it determines are appropriate including:
(1) Withholding of payments to Contractor under this Contract until Contractor complies;
(2) Cancellation, termination, or suspension of this Contract, in whole or in part.
F. Incorporation of Provisions: Contractor shall include the provisions of subsections A through E, above, in every subcontract, including procurement of materials and leases of equipment, unless exempted by the Regulations, or by any order or instructions issued pursuant thereto. The City may direct Contractor to take specific actions to enforce these provisions, including sanctions for noncompliance; provided, however, that if Contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, Contractor may request that the City join such litigation to protect the City’s interests.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 8
19. Entire Agreement. This Contract, including all Exhibits and documents referenced herein, contains the entire agreement between the parties and supersedes whatever oral or written understanding they may have had before the execution of this Contract. No alteration to the terms of this Contract shall be valid unless approved in writing by Contractor, and by City, in accordance with applicable provisions of the Sacramento City Code.
20. Modification of Contract. The Contractor shall take no direction from any City employee that changes the executed terms and conditions of the Contract, including Exhibit A, or any change that impacts the cost, price, or schedule, before receiving a written, signed modification to the Contract.
21. Severability. If a court with jurisdiction rules that any portion of this Contract or its application to any person or circumstance is invalid or unenforceable, the remainder of this Contract will not be affected thereby and will remain valid and enforceable as written, to the greatest extent permitted by law.
22. Waiver. Neither the City’s acceptance of, or payment for, any Goods or Services, nor any waiver by either party of any default, breach or condition precedent, will be construed as a waiver of any provision of this Contract, nor as a waiver of any other default, breach or condition precedent or any other right hereunder. No waiver will be effective unless it is in writing and signed by the waiving party.
23. Governing Law. This Contract shall be governed, construed and enforced in accordance with the laws of the State of California, except that the rule of interpretation in California Civil Code section 1654 will not apply. Venue of any litigation arising out of this Contract will lie exclusively in the state trial court or Federal District Court located in Sacramento County in the State of California, and the parties consent to jurisdiction over their persons and over the subject matter of any such litigation in such courts, and consent to service of process issued by such courts.
24. Assignment Prohibited. The expertise and experience of Contractor are material considerations for this Contract. City has a strong interest in the qualifications and capability of the persons and entities that will fulfill the obligations imposed on Contractor under this Agreement. In recognition of this interest, Contractor shall not assign any right or obligation pursuant to this Contract without the written consent of the City. Any attempted or purported assignment without City’s written consent shall be void and of no effect.
25. Binding Effect. This Contract is binding on the heirs, executors, administrators, successors and assigns of the parties, subject to the provisions of Section 24, above.
26. Compliance with Laws. The Contractor shall be responsible for strict compliance with all applicable laws, regulations, court orders and other legal requirements applicable to the work to be accomplished under the Contract, including the California Occupational Safety and Health Act and all applicable safety orders issued by the Division of Occupational Safety and Health, Department of Industrial Relations, State of California, and all applicable requirements of Underwriters Laboratories and the Federal Communication Commission.
Form Approved by City Attorney 9-1-2020 Exhibit D - Page 9
27. Debarment Certification
A. Pursuant to 2 CFR, Part 200, and applicable Executive Orders, the City is restricted in its ability to contract with certain parties that are debarred, suspended, or otherwise excluded or ineligible for participating in Federal assistance programs or activities. By signing this Agreement, CONTRACTOR warrants and certifies under penalty of perjury under the laws of the State of California that Contractor, including any owner, partner, director, officer, or principal of the CONTRACTOR, or any person in a position with management responsibility or responsibility for the administration of federal funds:
(1) Is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal or state department/agency;
(2) Has not within a three-year period preceding this certification been convicted of or had a civil judgment rendered against it for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public transaction or contract (federal, state, or local); violation of federal or state antitrust statutes; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property, or other criminal felony; (3) Is not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state, or local) with commission of any of the offenses enumerated in paragraph (b) above; or
(4) Has not, within a three-year period preceding this certification, had one or more public contracts (federal, state, or local) or transactions terminated for cause or default. (5) Has not been notified, within a three-year period preceding this certification, been notified of any delinquent Federal taxes in an amount that exceeds $3,500 for which the liability remains unsatisfied. Federal taxes are considered delinquent if the tax liability has been finally determined and the taxpayer is delinquent in making payment, as defined in Section 52.209-5 of the Federal Acquisition Regulations.
B. CONTRACTOR further warrants and certifies that it shall not knowingly enter into any transaction with any subcontractor, material supplier, or vendor who is debarred, suspended, declared ineligible, or voluntarily excluded from covered transactions by any federal or state department/agency. Any exceptions to the warranties and certifications in this Section must be disclosed to the City.
C. Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining Contractor’s responsibility. Disclosures must indicate to whom exceptions apply, the initiating agency, and dates of action.
D. City will review the Federal Government’s System for Award Management Exclusions maintained by the General Services Administration for eligibility, prior to the execution of this Agreement. The CONTRACTOR shall provide immediate written notice to the City if, at any time prior to execution, the CONTRACTOR learns this certification is erroneous or has become erroneous by reason of changed circumstances. If it is later determined that the Contractor’s warranties and certification in this Section were erroneous, the City may terminate this Agreement for default.