Contract for Services-Estero SB854 (PW)
Rev 9/22
AGREEMENT WITH SPX FLOW INC.
FOR REPAIR SERVICES FOR
DIGESTER 2 MIXER REPAIR PROJECT
This Agreement, made and entered into this day of , by and between the CITY OF SAN MATEO, a municipal corporation existing under the laws of the State of California ("CITY"), and SPX FLOW Inc., a corporation ("CONTRACTOR"), whose address is 13320 Ballantyne Corporate Place Charlotte, NC 28277.
RECITALS:
A. CITY desires certain digester mixer repair services hereinafter described.
B. CITY desires to engage CONTRACTOR to provide these digester mixer repair services by reason of its qualifications and experience for performing such services and CONTRACTOR has offered to provide the required services on the terms and in the manner set forth herein.
NOW, THEREFORE, IT IS AGREED as follows:
SECTION 1 - SCOPE OF SERVICES
The scope of services to be performed by CONTRACTOR under this Agreement is as described in Exhibit A to this Agreement, which is attached and incorporated by reference.
SECTION 2 - DUTIES OF CONTRACTOR
CONTRACTOR shall be responsible for the professional quality, technical accuracy and coordination of all work furnished by CONTRACTOR under this Agreement. CONTRACTOR shall, without additional compensation, correct or revise any errors or deficiencies in its work.
CONTRACTOR represents that it is qualified to furnish the services described under this Agreement.
CONTRACTOR shall be responsible for employing or engaging all persons necessary to perform the services of CONTRACTOR.
CONTRACTOR and his subcontractors shall comply with State’s Prevailing Wage Laws.
CONTRACTOR or subcontractor shall not be qualified to bid on, be listed in a bid proposal, or engage in the performance of any contract for public work unless currently registered and qualified to perform public work pursuant to Section 1725.5 of the Labor Code. For the work performed for the City, the CONTRACTOR and his subcontractors shall pay the workers at the prevailing wage rate as determined by the California Department of Industrial Relations, for this locality. This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. CONTRACTOR Contract for Services-Estero SB854 (PW)
Rev 9/22
agrees to comply with the City’s minimum wage ordinance as codified in Municipal Code Chapter 5.92, which differs from the state minimum wage and includes a Consumer Price Index escalator.
SECTION 3 - DUTIES OF CITY
CITY shall provide pertinent information regarding its requirements for the project.
CITY shall examine documents submitted by CONTRACTOR and shall render decisions pertaining thereto promptly, to avoid unreasonable delay in the progress of CONTRACTOR's work.
SECTION 4 - TERM
The services to be performed under this Agreement shall commence on and be completed on December 31, 2025.
SECTION 5 - PAYMENT
Payment shall be made by CITY only for services rendered and upon submission of a payment request upon completion and CITY approval of the work performed. In consideration for the full performance of the services set forth in Exhibit A, CITY agrees to pay CONTRACTOR a fee in an amount of $241,779.81.
SECTION 6 – TERMINATION
Without limitation to such rights or remedies as CITY shall otherwise have by law, CITY shall have the right to terminate this Agreement or suspend work on the Project for any reason, upon ten (10) days' written notice to CONTRACTOR. CONTRACTOR agrees to cease all work under this Agreement upon receipt of said written notice.
SECTION 7 - OWNERSHIP OF DOCUMENTS
All documents prepared by CONTRACTOR in the performance of this Agreement are and shall be the property of CITY, whether the project for which they are made is executed or not.
SECTION 8 - CONFIDENTIALITY
All reports and documents prepared by CONTRACTOR in connection with the performance of this Agreement are confidential until released by CITY to the public. CONTRACTOR shall not make any such documents or information available to any individual or organization not employed by CONTRACTOR or CITY without the written consent of CITY before any such release.
SECTION 9 - INTEREST OF CONTRACTOR
CONTRACTOR covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services under this Agreement.
Contract for Services-Estero SB854 (PW)
Rev 9/22
SECTION 10 - CONTRACTOR'S STATUS
It is expressly agreed that in the performance of the services required under this Agreement, CONTRACTOR shall at all times be considered an independent contractor as defined in Labor Code Section 3353, under control of the CITY as to the result of the work but not the means by which the result is accomplished. Nothing herein shall be construed to make CONTRACTOR an agent or employee of CITY while providing services under this Agreement.
SECTION 11 - INDEMNITY
CONTRACTOR agrees to hold harmless and indemnify City of San Mateo and the Estero Municipal Improvement District, their elected and appointed officials, employees, and agents from and against any and all claims, loss, liability, damage, and expense arising out of CONTRACTOR’s performance of this Agreement, except for those claims arising out of CITY’s sole negligence or willful misconduct. CONTRACTOR agrees to defend City of San Mateo and the Estero Municipal Improvement District, their elected and appointed officials, employees, and agents against any such claims. The CONTRACTOR’S duty to indemnify shall survive expiration or early termination of this Agreement.
SECTION 12 - INSURANCE
Contractor shall procure and maintain for the duration of the contract the insurance specified in Exhibit B to this Agreement.
SECTION 13 - NONASSIGNABILITY
Both parties hereto recognize that this Agreement is for the personal services of CONTRACTOR and cannot be transferred, assigned, or subcontracted by CONTRACTOR without the prior written consent of CITY.
SECTION 14 - RELIANCE UPON SKILL OF CONTRACTOR
It is mutually understood and agreed by and between the parties hereto that CONTRACTOR is skilled in the performance of the work agreed to be done under this Agreement and that CITY relies upon the skill of CONTRACTOR to do and perform the work in the most skillful manner, and CONTRACTOR agrees to thus perform the work. The acceptance of CONTRACTOR's work by CITY does not operate as a release of CONTRACTOR from said obligation.
Contract for Services-Estero SB854 (PW)
Rev 9/22
SECTION 15 - WAIVERS
The waiver by either party of any breach or violation of any term, covenant, or condition of this Agreement or of any provisions of any ordinance or law shall not be deemed to be a waiver of such term, covenant, condition, ordinance or law or of any subsequent breach or violation of the same or of any other term, condition, ordinance, or law. The subsequent acceptance by either party of any fee or other money which may become due hereunder shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, covenant, or condition of this Agreement or of any applicable law or ordinance.
SECTION 16 - COSTS AND ATTORNEY FEES
Attorney fees in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of this Agreement. The above $5000 limit is the total of attorney fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this provision that neither party shall have to pay the other more than $5000 for attorney fees arising out of an action, or actions to enforce the provisions of this Agreement.
SECTION 17 - NON-DISCRIMINATION
CONTRACTOR warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal employment opportunity. Neither CONTRACTOR nor any of its subcontractors shall discriminate in the employment of any person because of race, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.
SECTION 18 - MEDIATION
Should any dispute arise out of this Agreement, any party may request that it be submitted to mediation. The parties shall meet in mediation within 30 days of a request. The mediator shall be agreed to by the mediating parties; in the absence of an agreement, the parties shall each submit one name from mediators listed by either the American Arbitration Association, the State Mediation and Conciliation Service, or other agreed-upon service. The mediator shall be selected by a blind draw.
The cost of mediation shall be borne equally by the parties. Neither party shall be deemed the prevailing party. No party shall be permitted to file a legal action without first meeting in mediation and making a good faith attempt to reach a mediated settlement. The mediation process, once commenced by a meeting with the mediator, shall last until agreement is reached by the parties but not more than 60 days, unless the maximum time is extended by the parties.
Contract for Services-Estero SB854 (PW)
Rev 9/22
SECTION 19 - LITIGATION
CONTRACTOR shall testify at CITY'S request if litigation is brought against CITY in connection with CONTRACTOR'S services under this Agreement. Unless the action is brought by CONTRACTOR, or is based upon CONTRACTOR'S wrongdoing, CITY shall compensate CONTRACTOR for preparation for testimony, testimony, and travel at CONTRACTOR'S standard hourly rates at the time of actual testimony.
SECTION 20 - NOTICES
All notices hereunder shall be given in writing and mailed, postage prepaid, addressed as follows:
To CITY: Thomas Ruark
City of San Mateo
2050 Detroit Drive
San Mateo, Ca 94404
To CONTRACTOR: SPX Flow Inc.
Attn: Wendy Malone
135 Mt. Read Blvd.
Rochester, NY 14611
SECTION 21 - AGREEMENT CONTAINS ALL
UNDERSTANDINGS, AMENDMENT
Exhibit C is attached and incorporated by reference
This document, including Exhibit C, represents the entire and integrated agreement between CITY and CONTRACTOR and supersedes all prior negotiations, representations, and agreements, either written or oral.
This document may be amended only by written instrument, signed by both CITY and CONTRACTOR.
SECTION 22 - GOVERNING LAW AND VENUE
This Agreement shall be governed by the laws of the State of California and, in the event of litigation, venue will be in the County of San Mateo.
[SIGNATURE PAGE FOLLOWS]
Contract for Services-Estero SB854 (PW)
Rev 9/22
IN WITNESS WHEREOF, this agreement has been duly executed by the parties hereinabove named, as of the day and year first above written.
CITY OF SAN MATEO CONTRACTOR
Matthew Fabry
Public Works Director
Date Wendy Malone
Its Authorized Agent
President, Mixing Solutions
Date
APPROVED AS TO FORM
Linh Nguyen
Assistant City Attorney
Date Christopher Dunstan
Chief Compliance Officer and
Group General Counsel,
Mixing Solutions
Date
Attachments:
Exhibit A: Scope of Services
Exhibit B: Insurance Requirements
Exhibit C: SPX Flow Inc., One Page Term Deviations
Contract for Services-Estero SB854 (PW)
Rev 9/22
EXHIBIT A
SCOPE OF SERVICES
In February, 2024, SPX completed inspection of the Digester 2 Mixer. The team found the bearings overheated due the possibility of grease not being added at proper intervals per the manual. This could have caused the lower bearing to spin in the lower end of housing.
Under this scope, Philadelphia Mixing Solutions will repair this gearbox using the following scope of rebuild:
Replace all bearings, shims, seals and gaskets
Rework lower bearing bore in bearing stand
Rework liquid seal assembly
Replace output shaft
Replace spool shaft
Replace Vapor Seal Flange
Replace Splash Shield
Replace High Speed Coupling
Install with new bearings, seals, shims, and gaskets not supplied by customer Re-assemble & PMSL standard testing
Repaint & Prepare for shipment
Price: $241,779.81
Price includes taxes, freight to plant from factory, and field service assistance for installation of equipment.
Additional notes on offering:
Existing Philadelphia PED-10 mixer S/N 05ZZZ0610
Philadelphia Field service personnel are not trained electricians nor outriggers and cannot assist in that capacity
Freight (Incoterm 2020)
EXW (Ex Works) Palmyra, Pennsylvania
Unless otherwise stated, crating is not included in freight costs.
Contract for Services-Estero SB854 (PW)
Rev 9/22
EXHIBIT B
INSURANCE REQUIREMENTS
SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 12 07 or its equivalent covering CGL on an “occurrence” basis, including bodily injury, property damage, products-completed operations, personal & advertising injury, with limits of $5,000,000 per occurrence and $5,000,000general aggregate .
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit of $2,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of $1,000,000 per accident for bodily injury or disease.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City of San Mateo and the Estero Municipal Improvement District, their elected and appointed officials, employees, and agents are to be covered as additional insureds on the auto policy for liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Contractor; and on the CGL policy with respect to liability for bodily injury or property damage caused, in whole or in part, by work or operations performed by or on behalf of the Contractor including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of ISO Forms (CG 20 1012 19 and CG 20 37, 12 19 or their equivalents).
Primary Coverage
For any claims related to this contract, the Contractor’s insurance coverage shall be primary insurance as respects the City of San Mateo and the Estero Municipal Improvement District, their elected and appointed officials, employees, and agents. Any insurance or self-insurance maintained by the City of San Mateo and the Estero Municipal Improvement District, their elected and appointed officials, employees, or agents shall be excess of the Contractor’s insurance and shall not contribute with it.
Notice of Cancellation
Coverage shall not be cancelled, except after Contractor provides thirty (30) days’ prior written notice (10 days for non-payment) has been given to the City.
Waiver of Subrogation
To the extent not prohibited by law, Contractor hereby grants to the City of San Mateo and the Estero Municipal Improvement District a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this Contract for Services-Estero SB854 (PW)
Rev 9/22
provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to the City. The City may require the Contractor to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Verification of Coverage
Contractor shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. In the event of a claim involving the City, the City reserves the right to require copies of all applicable insurance policy provisions which may relate to the claim.
Contract for Services-Estero SB854 (PW)
Rev 9/22
Exhibit C