Attachment 2Attachment 2CITY OF SAN CLEMENTE
Attachment 2
Attachment 2
PURCHASE CONTRACT
FURNISH AND DELIVER 19% AQUA AMMONIA
Parties and Date.
This Agreement is made and entered into this ______ day of ________________, 2023, by and between the City of San Clemente, a municipal corporation, organized under the laws of the State of California, with its principal place of business at 910 Calle Negocio, San Clemente, California, 92673 ("City"), and KAAM GROUP, INC., a CALIFORNIA CORPORATION, with its principal place of business at 300 CARLSBAD VILLAGE DRIVE, SUITE 108A-468, CARLSBAD, CA 92008 ("Supplier").
Recitals.
City is a municipal corporation of the State of California and operates, among other facilities, RESERVOIRS 5A, 10, AND 14 located in San Clemente, California (hereinafter referred to as "Facilities").
City desires Supplier to provide AND DELIVER 19% AQUA AMMONIA to City for use at its Facilities.
Supplier is duly licensed and has the necessary qualifications to fulfill the obligations set forth herein.
The parties desire by this Agreement to establish the terms for City to purchase and acquire the goods specified herein.
Terms.
Agreement Duration. This Agreement shall commence NOVEMBER 1, 2023, and shall be in effect up to and including NOVEMBER 1, 2025. This Agreement may be extend for up to three additional one-year periods upon mutual written agreement of the Parties.
Method of Ordering. The City shall issue a purchase order(s). The City shall provide Supplier delivery dates by email or telephone, consistent with contact information provided in Paragraph 14.
Supply and Purchase of Goods. 19% AQUA AMMONIA FOR WATER TREATMENT supplied, purchased, and delivered under this Agreement ("Goods") shall be in compliance with all applicable laws and regulations. If a chemical, it shall be in compliance with the most current ANSI/AWWA standard for each chemical listed.
Request for Delivery. On an as needed basis, City shall submit to Supplier a confirmed request for delivery of specific Goods, consistent with contact information provided in Paragraph 15.
Price. Price for Goods supplied under this Agreement shall be in accordance with Supplier's quotation, attached hereto and incorporated by reference herein as Exhibit "A." The unit price shall be fixed for the first TWO YEARS of this Agreement. If the Goods are a chemical(s), except where otherwise noted on Exhibit "A," the unit price shall be based on the price per weight of actual active chemical. The unit price shall be all inclusive of Supplier's profit, overhead and costs of producing and delivering the Goods. Separate charges for permit fees, regulatory compliance, taxes, fuel, and cleanup will not be accepted. These and all other costs shall be included in the unit price.
There shall be no price increase during the INITITAL TWO-YEAR period of contract. Prices may be adjusted in accordance with the terms of this Agreement with each contract EXTENSION; however, there shall be no annual increases of greater than 5%.
Delivery. Supplier shall deliver Goods within three business days of a confirmed request for each delivery. Hours of delivery shall be Monday through Thursday, 8 a.m. to 2 p.m.
Business Hours. Within one month of the execution of this Agreement, Supplier shall submit to the City dates Supplier will not be able to deliver Goods due to planned maintenance, holidays or other events that might affect chemical production or delivery.
Chemical Delivery. All chemical fill connections are two-inch male camlock fittings. Supplier’s delivery personnel shall have the applicable adapter/connectors and hoses to complete the chemical delivery. Aqua ammonia deliveries require 2-hour notice to the City prior to arrival.
Minimum Standards. Goods delivered shall meet or exceed all of the current ANSI/AWWA minimum standards.
NSF Certification. The City requires all supplied chemicals to carry NSF 60 certification. "NSF" shall be stamped directly on the delivery paperwork.
Certificate of Analysis. A certificate of analysis (hereinafter referred to as "C of A") is required with each load before the Goods can be unloaded.
Samples. Delivery vehicles shall be equipped to safely provide samples of chemicals, before off-loading.
Weight-Master's Certificate. If the Goods include a chemical, a weight-master’s certificate shall be included at the time of delivery. The certificates shall show the weight of the material delivered. If a split transport load is handled, Supplier shall furnish a second weight-master’s certificate within one (1) hour of the original shipment.
MSDS. Under this Agreement, a manufacturer’s MSDS sheet shall be included with the first delivery of the Goods or after any change in composition of the product, a change in manufacturing process, a change in supplier, or a change in labeling/packaging of the product.
For deliveries of chemicals, prior to delivery and after the truck has been loaded, all tanker fill/drain accesses shall be sealed with security tags, the serial numbers recorded and emailed to [email protected]. Tags removed by an authorized agency (e.g., D.O.T., CHP) shall be replaced with a tag from that agency. Broken tags shall be kept with the delivery truck to be shown to the Filtration Plant personnel prior to discarding.
Location. Deliveries shall be made to:
City of San Clemente
RESERVOIRS 5A, 10, AND 14
Attn: UTILITIES STAFF
Reservoir 5A, 721 Ave. Salvador, San Clemente, CA 92672 Reservoir 10, 9 Via Floritas, San Clemente, CA 92672
Reservoir 14, 4159 ½ Costero Risco, San Clemente, CA 92672 Inspection. Delivery does not constitute acceptance. The City reserves the right to inspect any Goods for conformance with the specifications contained herein. Goods discovered to be in noncompliance shall be returned and immediately replaced with conforming Goods at supplier’s sole expense. The City shall be reimbursed for any additional cost incurred as a result of Supplier’s lack of conformance.
A representative of the City may examine Supplier's inventory and production facilities at any time during the life of this Agreement.
Goods Specification and Quantity Estimate. The City estimates the quantity of Goods to be required for the City’s operation of the Facilities as indicated on Exhibit "A," attached hereto and incorporated by reference herein. For chemicals, weights are based on actual active chemical weight. Quantities of Goods listed may be increased or decreased to meet the requirements of the City during the duration of this Agreement. The City does not guarantee a minimum quantity, and the City reserves the right to purchase more or less product units on an as-needed basis.
Personal Protective Equipment (PPE). Supplier shall wear appropriate PPE when taking chemical samples and off-loading product.
Emergency Spill Plan. In the event of accidents or spills on City property, Supplier shall follow the procedures of its Emergency Spill Plan, attached hereto and incorporated by reference herein as Appendix “1.” The Emergency Spill Plan shall include, at a minimum, the annual training the delivery driver receives to deal with material spills, emergency equipment the delivery truck has on board, the type and frequency of equipment inspections, emergency contact telephone numbers and names of personnel the City can contact in case of problems.
Security. Due to heightened security measures, Supplier shall be required to email a photocopy of the driver's photo identification, security tag serial numbers and trailer identification no later than two hours before delivery.
Contacts Email
Dustin Burnside, Utilities Manager [email protected] Mark Iverson, Chief Operator [email protected] Safety. All Goods and services furnished, or equipment and PPE used, under this Agreement shall meet or exceed the standards established by the California Occupational Safety and Health Administration and any other applicable federal, state, and local laws, regulations, and ordinances. Supplier compliance shall include, but not be limited to, all relevant U.S. Department of Transportation or Department of Homeland Security regulations pertaining to transportation of hazardous waste, substances and/or materials, as those regulations may be amended from time to time and/or incorporated into state or local laws, regulations and ordinances. If requested, Supplier shall supply to the City information regarding the Supplier's safety ratings, safety audits and implementation of security plans or measures for complying with said regulations.
Termination. The City reserves the right to terminate this Agreement, in whole or in part, with or without cause and at no cost, except for Goods delivered and accepted prior to notice of termination. The City shall notify Supplier no less than 30 days prior to the date of termination of the Agreement. Reasons for termination of the Agreement for cause include, but are not limited to, the following:
The Goods are not compatible to the Facility’s equipment or are not providing acceptable process performance; Poor Goods quality;
Poor or unsafe delivery container quality; and/or
Failure of Supplier to meet any of the Agreement terms and conditions.
Insurance. Supplier agrees to procure and maintain, at Supplier’s expense all insurance specified in Exhibit “B” attached hereto and by this reference incorporated herein. Supplier shall require all subcontractors to carry the same policies and limits of insurance that the Supplier is required to maintain, unless otherwise approved in writing by the City.
Subcontractors. In the event that Supplier employs other suppliers (subcontractors) as part of the work covered by this Agreement, it shall be Supplier's responsibility to require and confirm that each subcontractor meets the minimum insurance requirements specified above.
Hold Harmless and Indemnification. To the fullest extent permitted by law, Supplier agrees to protect, save, defend and hold harmless the City and its officials, officers, agents, employees, and volunteers from any and all claims, liabilities, expenses or damages of any nature, including attorneys’ fees, for injury or death of any person, or damage to property, or interference with use of property, arising out of or in any way connected with the negligent acts, errors or omissions, violations of the law or willful misconduct by Supplier, Supplier's agents, officers, employees, subconsultants, or independent suppliers hired by Supplier under this Agreement. The only exception to Supplier's responsibility to protect, save, defend and hold harmless the City is due to the sole negligence, willful misconduct or active negligence of the City. This hold harmless Agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Supplier.
Notice. Any notice required under this Agreement shall be provided as follows:
City of San Clemente:
Supplier:
380 Avenida Pico, Bldg N
San Clemente, CA 92672
300 Carlsbad Village Dr., Suite 108A-468, Carlsbad, CA 92008 Attn: Julie Schmidt, Management Analyst II
Attn: Keith Clardy, Chief Executive Officer
Notices shall be deemed to be received upon personal delivery to the addresses above; if sent by overnight delivery, upon delivery as shown by delivery service records; if sent by facsimile, upon receipt as confirmed by the sending facsimile equipment; if by United States Postal Service, five days after deposit in the mail.
Records. Supplier shall keep and shall preserve for four (4) years after acceptance of the Goods, accurate and detailed records of all ledgers, books of account, invoices, vouchers, cancelled checks, and other documents or records evidencing or relating to the scope of this Agreement and disbursements charged to the City under this Agreement (collectively, “Books and Records”). Any and all Books and Records must be maintained in accordance with generally accepted accounting principles and must be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by Supplier under this Agreement. During such four (4) year period, Supplier shall give the City and its agents, during normal business hours, access to such Books and Records. The City and its agents shall have the right to make copies of any of the said Books and Records Compliance with Law. Supplier shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government. Supplier is responsible for all costs of clean up and/or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement.
Time is of the Essence. Time shall be of the essence as to all dates and times of performance contained in this Agreement. If deliveries are not made at the time agreed upon, the City reserves the right to cancel or to purchase elsewhere and hold Supplier accountable therefor. Supplier shall be liable to the City for any loss or damage caused by Supplier’s failure to make timely delivery and/or installation of the Goods, including, without limitation, consequential and incidental damages and costs of obtaining replacement Goods.
Separate Contracts. Supplier understands that this is not an exclusive Agreement and that the City shall have the right to negotiate with and enter into separate contracts with others providing the same or similar services as those provided by Supplier as the City desires.
Integration. This Agreement represents the entire understanding of the City and Supplier as to those matters contained herein, and supersedes and cancels any prior oral or written understanding, promises or representations with respect to those matters covered hereunder. This Agreement may not be modified or altered except in writing signed by both parties hereto. This is an integrated Agreement.
Assignment. Supplier shall not assign any portion of the work to be performed under this Agreement or any of the rights or obligations under this Agreement, without the prior written consent of the City, which consent may be withheld in the City’s sole and absolute discretion. Any attempted assignment in violation of the provisions of this paragraph shall be void. Subject to the foregoing, this Agreement shall be binding upon the heirs, administrators, successors and assigns of the City and Supplier.
Independent Contractor. Supplier shall act as an independent contractor in the performance of this Agreement and in no respect shall Supplier be considered an agent or employee of the City. No provisions of this Agreement shall be intended to create a partnership or joint venture between Supplier and the City and neither Party shall have the power to bind or obligate the other Party, except as expressly set forth in this Agreement.
Laws, Venue and Attorneys' Fees. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of Orange, State of California. In the event of any such litigation between the parties, the prevailing party shall be entitled to recover all reasonable costs incurred, including reasonable attorney's fees, as determined by the court.
Third Party Rights. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and Supplier.
Severability. The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the other provisions unenforceable, invalid or illegal.
Counterparts/Electronic Signature. This Contract may be executed in counterparts, each of which shall constitute an original. This Contract may be executed electronically with the same force and effect as an original ink signature. Bonds, if required, must be signed with original ink signatures and accompanied by notary acknowledgments.
Authority to Enter Contract. Each Party warrants that the individuals who have signed this Contract have the legal power, right and authority to make this Contract and bind each respective Party.
Non-Waiver. None of the provisions of this Agreement shall be considered waived by either party, unless such waiver is specifically specified in writing. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Agreement is executed by the City and by Supplier on the day and year first written above.
CITY OF SAN CLEMENTE
By:________________________________
Andy Hall, City Manager
ATTEST:
______________________________ Dated: ____________________, 2023 CITY CLERK of the City of
San Clemente, California
APPROVED AS TO FORM:
____________________________
Elizabeth A. Mitchell, City Attorney
APPROVED AS TO AVAILABILITY
OF FUNDING:
________________________________
Finance Authorization
KAAM GROUP, INC._________
(“SUPPLIER”)
By:_____________________________
Keith Clardy, Chief Executive Officer
Dated: __________________, 2023
By:_____________________________
Amanda Clardy, Chief Financial Officer
Dated: __________________, 2023
EXHIBIT "A"
Product Specification and Quantity Estimate
and
Supplier's Quotation
Supplier shall supply and deliver the product with the specifications and at the price as listed in the attached bid from KAAM Group, Inc. submitted via Planet Bids on September 27, 2023.
EXHIBIT "B"
INSURANCE REQUIREMENTS
1. Insurance.
1.1 Time for Compliance. Supplier shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Supplier shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section.
1.2 Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Supplier, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Supplier agrees to amend, supplement or endorse the policies to do so. (a) Commercial General Liability: Commercial General Liability Insurance which affords coverage at least as broad as Insurance Services Office “occurrence” form CG 0001, or the exact equivalent, with limits of not less than $1,000,000 per occurrence and not less than $2,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); or (3) containing any other exclusion(s) contrary to the terms or purposes of this Agreement. (b) Automobile Liability: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering “Any Auto” (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $1,000,000 combined limit for each occurrence. NOTE: If Supplier does not own any company vehicles or may not be able to purchase a Business Automobile Insurance Policy, the requirement may be satisfied by providing either of the following: (1) a Personal Automobile Liability policy for the Supplier’s own vehicle stipulating “Automobile Liability Insurance with a limit of not less than $1,000,000 each accident”; and (2) a non-owned auto endorsement to the Commercial General Liability policy if Supplier uses vehicles of others (e.g., vehicles of employees). (c) Workers’ Compensation: Workers’ Compensation Insurance, as required by the State of California and Employer’s Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease. (d) Pollution Liability: Pollution Liability Insurance covering all of the Supplier’s operations to include onsite and offsite coverage for bodily injury (including death and mental anguish), property damage, defense costs and cleanup costs with minimum limits of $2,000,000 per loss and $4,000,000 total all losses. The policy shall contain no endorsements or provisions limiting contractual liability or coverage for cross liability of claims or suits by one insured against another.
If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained.
1.3 Endorsements. Required insurance policies shall contain the following provisions, or Supplier shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(a) Commercial General Liability and Pollution Liability:
(1) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement.
Additional Insured Endorsements shall not (1) be restricted to “ongoing operations”; (2) exclude “contractual liability”; (3) restrict coverage to “sole” liability of Supplier; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. (2) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (b) Automobile Liability:
(1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (c) Workers’ Compensation:
(1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.
1.4 Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self-insurance maintained by the City, its officials, officers, employees, agents or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions.
1.5 Deductibles and Self-Insured Retentions. Any deductible or self-insured retention in excess of Five Thousand Dollars ($5,000) must be approved in writing by the City and shall protect the City, its officials, officers, employees, agents and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention.
1.6 Evidence of Insurance. The Supplier, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Supplier shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
1.7 Failure to Maintain Coverage. In the event any policy of insurance required under this Contract does not comply with these specifications or is canceled and not replaced immediately so as to avoid a lapse in the required coverage, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Supplier or City will withhold amounts sufficient to pay premium from Supplier payments. In the alternative, City may cancel this Agreement.
1.8 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A- VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
1.9 Enforcement of Contract Provisions (non estoppel). Supplier acknowledges and agrees that actual or alleged failure on the part of the City to inform Supplier of non-compliance with any requirement imposed no additional obligation on the City nor does it waive any rights hereunder.
1.10 Requirements Not Limiting. Requirement of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance.
Appendix “1"
EMERGENCY SPILL PLAN
Supplier shall comply with the emergency spill plan as set for in the attached bid received from KAAM Group, Inc. submitted via Planet Bids on September 27, 2023.
WORKER’S COMPENSATION INSURANCE CERTIFICATION
WORKERS' COMPENSATION DECLARATION
I hereby affirm under penalty of perjury one of the following declarations:
(ONE OF THE BOXES BELOW MUST BE CHECKED)
I have and will maintain a certificate of consent from the California Labor Commission to self-insure for workers' compensation, as provided for by Section 3700 of the Labor Code, for the performance of the work to be performed under this contract.
I have and will maintain workers' compensation insurance, as required by Section 3700 of the Labor Code, for the performance of the work to be performed under this contract. My workers' compensation insurance carrier and policy number are:
Carrier____________________________________________________ Policy Number______________________________________________ I certify that, in the performance of the work under this Agreement, I shall not employ any person in any manner so as to become subject to the workers' compensation laws of California, and I hereby agree to indemnify, defend, and hold harmless the City of San Clemente and all of its officials, employees, and agents from and against any and all claims, liabilities, and losses relating to personal injury or death, economic losses, and property damage arising out of my failure to provide such worker’s compensation insurance. I further agree that, if I should become subject to the workers' compensation provisions of Section 3700 of the Labor Code, I shall forthwith comply with those provisions.
WARNING: FAILURE TO SECURE WORKERS’ COMPENSATION COVERAGE IS UNLAWFUL, AND SHALL SUBJECT AN EMPLOYER TO CRIMINAL PENALTIES AND CIVIL FINES UP TO ONE HUNDRED THOUSAND DOLLARS ($100,000), IN ADDITION TO THE COST OF COMPENSATION, DAMAGES AS PROVIDED FOR IN SECTION 3706 OF THE LABOR CODE, INTEREST, AND ATTORNEY’S FEES.
Dated: ________________________, 20____
________________________________
Supplier
By: ________________________________
________________________________
Title
________________________________
Address
14 55452.01100\33320711.3
2 55452.01100\33320711.3
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