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EBIX Insurance No. S200000969
AGREEMENT FOR SERVICES
BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
KSB, INC.
PREAMBLE
This Agreement is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and KSB, Inc., a New York corporation (Contractor). City and Contractor may be referred to individually as a “Party” or collectively as the “Parties”.
RECITALS
A. City desires to secure the services of Contractor to provide as needed motor and pump maintenance and repair services for the City’s electric utility, Silicon Valley Power (“Services”), as more fully described in this Agreement in Exhibit A, entitled “Scope of Services”;
B. Contractor represents that it, and its subcontractors, if any, have the professional qualifications, expertise, necessary licenses and desire to provide certain goods and/or required Services and goods of the quality and type which meet objectives and requirements of City; and,
C. The Parties have specified herein the terms and conditions under which such services will be provided and paid for.
The Parties agree as follows:
AGREEMENT TERMS AND CONDITIONS
1. AGREEMENT DOCUMENTS
The documents forming the entire Agreement between City and Contractor shall consist of these Terms and Conditions and the following Exhibits, which are hereby incorporated into this Agreement by this reference:
Exhibit A – Scope of Services
Exhibit B – Schedule of Fees and Payment Provisions
Exhibit C – Insurance Requirements
Exhibit D – Labor Compliance
Exhibit E – Sample Work Authorization Form
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This Agreement, including the Exhibits set forth above, contains all the agreements, representations and understandings of the Parties, and supersedes and replaces any previous agreements, representations and understandings, whether oral or written. In the event of any inconsistency between the provisions of any of the Exhibits and the Terms and Conditions, the Terms and Conditions shall govern and control.
2. TERM OF AGREEMENT
Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by written amendment(s) to this Agreement, the term of this Agreement shall begin on February 1, 2024 and terminate on July 31, 2028 (“Initial Term”).
At its sole discretion, the City reserves the right to exercise an option to extend the term for one (1) additional year through July 31, 2029 (“Extension Term”).
Such term extension shall be authorized through an Amendment to this Agreement executed by the Parties. The Initial Term and Extension Term shall be collectively referred herein as “Term.”
3. SCOPE OF SERVICES & PERFORMANCE SCHEDULE
Contractor shall perform those Services specified in Exhibit A within the time stated in Exhibit A. Time is of the essence.
4. WARRANTY
In additional to those warranties in Exhibit A, Contractor expressly warrants that all Services and materials provided in in connection thereto shall conform to the specifications, requirements and instructions set forth in this Agreement. Upon written notice by City within the warranty period, Contractor agrees to promptly replace or correct any incomplete, inaccurate or defective Services or materials at no further cost to City when defects are due to the negligence, errors or omissions of Contractor. If Contractor fails to promptly, commence to correct or replace Services or materials, City may make corrections or replace the Services and materials and charge Contractor for the actual cost incurred by City.
5. QUALIFICATIONS OF CONTRACTOR - STANDARD OF CARE
Contractor represents and maintains that it has the expertise in the professional calling necessary to perform the Services, and its duties and obligations set forth herein, and City expressly relies upon Contractor’s representations regarding its skills and knowledge. Contractor shall perform such Services and duties in conformance to and consistent with the professional standards of a specialist in the same discipline in the State of California.
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6. COMPENSATION AND PAYMENT
In consideration for Contractor’s complete performance of Services, City shall pay Contractor for all materials provided and Services rendered by Contractor in accordance with Exhibit B, entitled “SCHEDULE OF FEES AND PAYMENT.” The maximum compensation of this Agreement is One Million Dollars ($1,000,000) subject to budget appropriations, which includes all payments that may be authorized for Services and expenses, supplies, materials and equipment required to perform the Services, including any taxes. All Services performed or materials supplies, and equipment provided in excess of the maximum compensation shall be at Contractor’s expense, unless an amendment to this Agreement increasing the maximum compensation is executed by the Parties.
7. TERMINATION
A. Termination for Convenience. City shall have the right to terminate this Agreement, without cause or penalty, by giving not less than thirty (30) days’ prior written notice to Contractor.
B. T ermination for Default . If Contractor fails to perform any of its material obligations under this Agreement, in addition to all other remedies provided by law, City may terminate this Agreement immediately upon written notice to Contractor.
C. Upon termination, each Party shall assist the other in arranging an orderly transfer and close-out of services. As soon as possible following the notice of termination, but no later than ten (10) days after the notice of termination, Contractor will deliver to City all City information or material that Contractor has in its possession.
8. ASSIGNMENT AND SUBCONTRACTING
City and Contractor bind themselves, their successors and assigns to all covenants of this Agreement. This Agreement shall not be assigned or transferred without the prior written approval of City. Contractor shall not hire subcontractors without express written permission from City.
Contractor shall be as fully responsible to City for the acts and omissions of its subcontractors, and of persons either directly or indirectly employed by them, as Contractor is for the acts and omissions of persons directly employed by it.
9. NO THIRD PARTY BENEFICIARY
This Agreement shall not be construed to be an agreement for the benefit of any third party or parties and no third party or parties shall have any claim or right of action under this Agreement for any cause whatsoever.
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10. INDEPENDENT CONTRACTOR
Contractor and all person(s) employed by or contracted with Contractor to furnish labor and/or materials under this Agreement are independent contractors and do not act as agent(s) or employee(s) of City. Contractor has full rights to manage its employees in their performance of Services under this Agreement.
11. CONFIDENTIALITY OF MATERIAL
All ideas, memoranda, specifications, plans, manufacturing procedures, data, drawings, descriptions, documents, discussions or other information developed or received by or for Contractor and all other written information submitted to Contractor solely in connection with the performance of this Agreement shall be held confidential by Contractor and shall not, without the prior written consent of City, be used for any purposes other than the performance of the Services nor be disclosed to an entity not connected with performance of the Services. Nothing furnished to Contractor which is otherwise known to Contractor or becomes generally known to the related industry shall be deemed confidential.
12. OWNERSHIP OF MATERIAL
All material, which shall include, but not be limited to, data, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports, designs, technology, programming, works of authorship and other material (“Material”) developed, collected, prepared or caused to be prepared under this Agreement solely for the City shall be the property of City but Contractor may retain and use copies thereof to the extent authorized by the City in writing. City shall not be limited in any way or at any time in its use of said material. Contractor retains all rights, title and ownership in Contractor intellectual property used in Material. However, Contractor shall not be responsible for damages resulting from the use of said material for work outside the scope the Services including, but not limited to, the release of this Material to third parties.
13. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR
City, through its authorized employees, representatives or agents shall have the right during the term of this Agreement and for four (4) years from the date of final payment for goods or services provided under this Agreement to audit the books and records of Contractor upon advanced written notice for the purpose of verifying any and all charges made by Contractor in connection with Contractor compensation under this Agreement, including termination of Contractor. Such audit shall take place during Contractor’s normal business hours. Contractor agrees to maintain sufficient books and records in accordance with generally accepted accounting principles to establish the correctness of all charges submitted to City. Any expenses not so recorded shall be disallowed by City.
Contractor shall bear the cost of the audit if the audit determines that there has Agreement with KSB, Inc. Page 5 of 44
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been a substantial billing deviation in excess of five (5) percent adverse to the City.
Contractor shall submit to City any and all reports concerning its performance under this Agreement that may be requested by City in writing. Contractor agrees to assist City in meeting City’s reporting requirements to the State and other agencies with respect to Contractor’s Services hereunder.
14. HOLD HARMLESS/INDEMNIFICATION
A. To the extent permitted by law, Contractor agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents from and against any third-party claim, injury, liability, loss, cost, and/or expense or damage, including all costs and reasonable attorney’s fees in providing a defense to any such claim or other action, and whether sounding in law, contract, tort, or equity, in any manner arising from, or alleged to arise in whole or in part from, or in any way connected with the Services performed by Contractor pursuant to this Agreement – including claims of any kind by Contractor’s employees or persons contracting with Contractor to perform any portion of the Scope of Services – and shall expressly include passive or active negligence by City connected with the Services.
B. Contractor’s obligation to protect, defend, indemnify, and hold harmless in full City and City’s employees, shall specifically extend any and all employment-related claims of any type brought by employees, contractors, subcontractors or other agents of Contractor, against City (either alone, or jointly with Contractor), regardless of venue/jurisdiction in which the claim is brought and the manner of relief sought.
C. To the extent Contractor is obligated to provide health insurance coverage to its employees pursuant to the Affordable Care Act (“Act”) and/or any other similar federal or state law, Contractor warrants that it is meeting its obligations under the Act and will fully indemnify and hold harmless City for any penalties, fines, adverse rulings, or tax payments associated Contractor’s breach of its responsibilities under the Act.
15. INSURANCE REQUIREMENTS
During the Term, and for any time period set forth in Exhibit C, Contractor shall provide and maintain in full force and effect, at no cost to City, insurance policies as set forth in Exhibit C.
16. WAIVER
Contractor agrees that waiver by City of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Neither City’s review, Agreement with KSB, Inc. Page 6 of 44
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acceptance nor payments for any of the Services required under this Agreement shall be constructed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement.
17. NOTICES
All notices to the Parties shall, unless otherwise requested in writing, be sent to City addressed as follows:
City of Santa Clara
Attention: Silicon Valley Power
1500 Warburton Avenue
Santa Clara, CA 95050
and by e-mail at [email protected] and
[email protected]
And to Contractor addressed as follows:
KSB, Inc.
4415 Sarellen Road,
Henrico, VA 23231
and by e-mail at [email protected] and
[email protected]
The workday the e-mail was sent shall control the date notice was deemed given.
An e-mail transmitted after 1:00 p.m. on a Friday shall be deemed to have been transmitted on the following business day.
18. COMPLIANCE WITH LAWS
Contractor shall comply with all applicable laws and regulations of the federal, state and local government, including but not limited to applicable sections of “The Code of the City of Santa Clara, California” (“SCCC”). In particular, Contractor’s attention is called to the regulations regarding Campaign Contributions (SCCC Chapter 2.130), Lobbying (SCCC Chapter 2.155), Minimum Wage (SCCC Chapter 3.20), Business Tax Certificate (SCCC section 3.40.060), and Food and Beverage Service Worker Retention (SCCC Chapter 9.60), as such Chapters or Sections may be amended from time to time or renumbered.
Additionally, Contractor has read and agrees to comply with City’s Ethical Standards (http://santaclaraca.gov/home/showdocument?id=58299 ).
19. CONFLICTS OF INTEREST
Contractor certifies that to the best of its knowledge, no City officer, employee or authorized representative has any financial interest in the business of Contractor and that no person associated with Contractor has any interest, direct or indirect, which could conflict with the faithful performance of this Agreement. Contractor is familiar with the provisions of California Government Code section 87100 and Agreement with KSB, Inc. Page 7 of 44
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following and certifies that it does not know of any facts, which would violate these code provisions. Contractor will advise City if a conflict arises.
20. FAIR EMPLOYMENT
Contractor shall not discriminate against any employee or applicant for employment because of race, sex, color, religion, religious creed, national origin, ancestry, age, gender, marital status, physical disability, mental disability, medical condition, genetic information, sexual orientation, gender expression, gender identity, military and veteran status, or ethnic background, in violation of federal, state or local law.
21. NO USE OF CITY NAME OR EMBLEM
Contractor shall not use City’s name, insignia, or emblem, or distribute any information related to services under this Agreement in any magazine, trade paper, newspaper or other medium without express written consent of City.
22. GOVERNING LAW AND VENUE
This Agreement shall be governed and construed in accordance with the statutes and laws of the State of California. The venue of any suit filed by either Party shall be vested in the state courts of the County of Santa Clara, or if appropriate, in the United States District Court, Northern District of California, San Jose, California.
23. SEVERABILITY CLAUSE
In case any one or more of the provisions in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other provisions, which shall remain in full force and effect.
24. AMENDMENTS
This Agreement may only be modified by a written amendment duly authorized and executed by the Parties.
25. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.
26. FORCE MAJEURE
A. Subject to compliance with the notice provisions of Section 26(b) Contractor shall not be liable to City for any delay in performance of Services if such delay is caused by a Force Majeure event. A Force Agreement with KSB, Inc. Page 8 of 44
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Majeure event means any cause or event beyond the reasonable control of Contractor which was not reasonably foreseeable as of the Effective Date and not due to the fault or negligence of the Contractor, and which could not have been avoided by due diligence and use of reasonable efforts, including: fire, flood or other act of God, by pandemic including supply chain limitations from pandemics such as COVID-19 and its variants, war (declared or not), acts of terrorism including cyber security incidents, or the public enemy, changes in governmental laws, orders, priorities or regulations including such acts that hinder Contractor's performance due to embargo, car shortage, wrecks or delay in transportation, inability to obtain necessary labor, materials or manufacturing facilities from usual sources, and which events are beyond the reasonable control of, and without any fault or responsibility on the part of Contractor The above shall constitute a Force “Majeure Event.” Notwithstanding the foregoing, under no circumstances shall the following constitute an event of Force Majeure: (a) any cost and expense increase, (b) any strike or lockout or other labor-related disturbance involving only the employees of Contractor and which is not part of a broader strike, lockout or other labor-related disturbance, (b) typical weather or climatic conditions, including precipitation (including rain and snow), heat or wind conditions, in each case as would be expected for the geographic area of the site of Contractor’s suppliers’ manufacturing facilities or in the geographic area where the Services are to be performed, (c) unavailability of labor, equipment, material or other resources to the extent such are not caused or exacerbated by an event of Force Majeure as described above, (d) normal time periods for clearing customs; and (e) price fluctuations with respect to labor or materials, supplies or components of equipment related to items to be supplied by Contractor.
B. Contractor shall give written notification to City within forty-eight (48) hours after becoming aware of any event that gives rise to a claim for Force Majeure. Such notice shall fully describe the claimed Force Majeure event, and outline the affected Contractor's efforts to prevent, avoid, overcome, delay or mitigate such Force Majeure event and the impacts on its performance hereunder, as well as the anticipated duration of such delay.
Contractor shall keep the City informed, in writing, on a regular basis during the pendency of the Force Majeure event to any updated information regarding such anticipated duration.
C. The date of delivery or time for completion shall be extended by a period of time reasonably necessary to overcome the direct effects of such an event of Force Majeure. Contractor’s remedy for an event of Force Majeure is equitable extension of time for completion, except that City may terminate this Agreement for convenience.
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27. WAIVER OF CONSEQUENTIAL DAMAGES; SELLER’S LIMITATION OF LIABILITY.
The total aggregate liability of Contractor and its subsidiaries, officers, employees and agents to City, its City Council, commissions, officers, employees, volunteers and agents and their insurers, collectively, for all claims (direct and third-party), damages, losses, expenses, costs, and liabilities of any kind arising out of this Agreement, whether such arise from a breach of contract; warranty; tort, including negligence; strict liability; or otherwise, shall be limited to one and half (1.5) times the maximum compensation in Section 6, as amended.
Notwithstanding the foregoing, the foregoing liability limitation shall not apply in cases of employee claims, indemnification obligations under Section 14, personal injury to a third party or damage to property of a third party. Contractor or City shall not be liable for any special, consequential, incidental, indirect, exemplary, or punitive damages, including, without limitation, any loss of profit or revenues, even if Contractor or City has been advised of the possibility of such damages.
28. PREVAILING WAGE
In the event the Services require payment of prevailing wage, Contractor shall comply, and ensure its subcontractors comply with Exhibit D.
Contractor certifies that it is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure by Contractor or its employees, agents, contractors, and subcontractors to comply with the prevailing wage laws.
The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives.
[SIGNATURES ON NEXT PAGE]
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CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
Approved as to Form: Dated:
GLEN R. GOOGINS
City Attorney
JŌVAN D. GROGAN
City Manager
City of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“CITY”
KSB, INC.
a New York corporation
Dated:
By (Signature):
Name: Eric Jenkins
Title: Supreme Service Sales Director
Principal Place of
Business Address: 4415 Sarellen Road, Henrico, VA 23231 Email Address: [email protected]
Telephone: 804-222-1818
Fax: 804-226-6962
“CONTRACTOR”
1-3-2024
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EXHIBIT A - SCOPE OF SERVICES
TABLE OF CONTENTS
SECTION 1. GENERAL ........................................................................................... 12 SECTION 2. SERVICES TO BE PERFORMED ...................................................... 12 SECTION 3. SPECIFIC REQUIREMENTS .............................................................. 13 SECTION 4. REPORTS ........................................................................................... 14 SECTION 5. COMPLETION OF WORK .................................................................. 15 SECTION 6. HOURS AND DAYS OF SERVICE ..................................................... 15 SECTION 7. SCHEDULING AND PLANNING ......................................................... 15 SECTION 8. WORK AUTHORIZATION PROCESS ................................................ 16 SECTION 9. APPLICABLE LAWS AND REGULATIONS ........................................ 21 SECTION 10. WORKMANSHIP................................................................................. 21 SECTION 11. PERMITS AND LICENSES ................................................................. 21 SECTION 12. WARRANTY ....................................................................................... 21 SECTION 13. CITY FURNISHED MATERIALS ......................................................... 22 SECTION 14. WORK AREA ...................................................................................... 22 SECTION 15. CONTRACTOR’S EQUIPMENT, TOOLS, AND MATERIALS ............ 23 SECTION 16. DISPOSAL OF WASTE & SCRAPS ................................................... 23 SECTION 17. SAFETY .............................................................................................. 23 SECTION 18. INJURY/PROPERTY DAMAGE .......................................................... 24 SECTION 19. CONTRACTOR’s PERSONNEL ......................................................... 24 SECTION 20. E-BUILDER ......................................................................................... 26 SECTION 21. SHIPPING AND FREIGHT .................................................................. 28 SECTION 22. TRANSPORTATION ........................................................................... 28
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SECTION 1. GENERAL
1.1 Contractor shall provide all necessary supervision, labor, and services, plus all tools, equipment, materials, and supplies required to provide maintenance and repair services for pumps and motors (“Services”) for Silicon Valley Power (“SVP”).
1.2 Contractor shall perform the Services according to the original equipment manufacturer (OEM) standards and industry best practices. Any deviations must be approved in writing by SVP.
1.3 Contractor will primarily perform the Services within the City of Santa Clara limits but may be requested to provide services at City’s remote sites.
1.4 The terms “City” and “SVP” may be used interchangeably throughout this Exhibit.
1.5 To the extent not inconsistent with this Agreement (including this Exhibit), the RFP 22-23-43 (including subsequent updates) and Contractor’s proposal response dated January 25, 2023, are hereby incorporated by reference herein, and shall supplement this Scope of Services and be subject to the terms and conditions of the Agreement. In the event of a conflict between the Agreement (including its Exhibits) and the RFP or Contractor’s proposal, the Agreement (including its Exhibits) shall govern and control.
SECTION 2. SERVICES TO BE PERFORMED
2.1 Motor Repair and Maintenance Services
Contractor shall provide a comprehensive motor maintenance and repair services that include but are not limited to:
2.1.1 Perform inspections on motors of various types and sizes including but not limited to, motors manufactured by GE, US Motors, Marathon Electric, TEFC, TECO, Mitsubishi, Baldor, Siemens, and WEG.
2.1.2 Repair or replace various motors up to 1000 horsepower, including alternating current (AC) motors, direct current (DC) motors, three-phase motors, and single-phase motors.
2.1.3 Perform motor alignments, terminations, balancing, rotation checks, and diagnostics which include amp draw, vibration analysis, resistance to ground checks, and meggering.
2.1.4 Repair or replace parts including shafts, stators, winding material, bearings, coolers, belts, instrumentations, local gauges, cables, conduit, oils, grease, filters, contactors, breakers, protection relays, housings and insulation.
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2.1.5 Provide all labor to remove, install, and commission new motors.
2.1.6 Provide motors parts requested by the City.
2.1.7 Perform miscellaneous motor inspections, repairs and maintenance services as directed by the City.
2.2 Pump Repair and Maintenance Services
Contractor shall provide a comprehensive pump maintenance and repair services that include but are not limited to:
2.2.1 Perform inspections on vertical and horizontal pumps of various types and sizes including, but not limited to, pumps manufactured by KSB, Goulds, Taiko, and Johnston Pump.
2.2.2 Perform alignments for pumps, motors, rotating equipment and gearboxes.
2.2.3 Inspect, clean, repair and/or replace mechanical and rotating equipment including motors, parts compressors, coolers, fans, gear boxes, and piping.
2.2.4 Install structural supports including fabrication of mounting adapters.
2.2.5 Repair and/or replace couplings.
2.2.6 Provide engineering, technical support, and non-destructive examination services.
2.2.7 Provide mechanical maintenance services.
2.2.8 Provide new/replacement parts as required to complete the Services.
2.2.9 Provide pump parts as requested by the City.
2.2.10 Perform miscellaneous pump inspections, repairs and maintenance services.
SECTION 3. SPECIFIC REQUIREMENTS
When required to perform Services, Contractor shall be responsible for providing the following associated activities:
3.1 Supervision and administrative support
3.2 Program and project management services
3.3 Subcontractor management
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3.4 Logistical planning
3.5 Scheduling services
3.6 On-site cribbing and rigging
3.7 On-site forklift services
3.8 On-site scaffolding services
3.9 On-site shoring services
3.10 On-site confined space rescue team
3.11 On-site electrical testing and non-destructive examination (NDE)
3.12 On-site miscellaneous services (portable restroom facilities, rental equipment such as light standards, generators, fueling services, etc.)
3.13 Expedited procurement and transportation of materials, parts, and equipment when requested by the City.
SECTION 4. REPORTS
4.1 Service Reports
4.1.1 Within seven (7) days after final acceptance by the City of services associated with each Work Authorization (as defined in Section 8), Contractor shall submit a written report to the City to include the following:
4.1.1.1 Type of service (such as preventative maintenance, and/or repair services)
4.1.1.2 Summary of existing conditions.
4.1.1.3 Description of noted issues/deficiencies (including photos) and suggested corrective actions.
4.1.1.4 Description of service/repairs performed.
4.1.1.5 Information shall be provided circuit by circuit.
4.1.1.6 Summary list of spare parts and material inventory, including serial number of all parts removed and installed inventory
4.1.1.7 Description of all newly installed motors and pumps and verification report of existing inventory
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4.1.1.8 Other information that the City may request
4.1.2 Provide a final report of the motors and pumps installed at SVP locations, and an existing inventory verification report.
4.2 Status Reports
4.2.1 Contractor shall provide regular cost, schedule, and status updates on services performed throughout the Term.
4.2.2 Depending on work activity, status updates may be required daily, weekly, or monthly at the direction of SVP.
4.3 Contractor shall provide all reports in electronic format and in hard copy if requested by the City.
SECTION 5. COMPLETION OF SERVICE
All Services shall be completed in a timely, efficient manner to ensure the site, equipment, and/or system is operational as soon as possible and as provided in the applicable Work Authorization / Purchase Order / Emergency Work Order.
SECTION 6. HOURS AND DAYS OF SERVICE
Contractor will generally perform the required Services during regular business hours which is between 7:00 AM - 7:00 PM PST/PDT, Monday through Friday. SVP will, at its discretion, allow access during non-business hours when required.
SECTION 7. SCHEDULING AND PLANNING
7.1 Contractor and City shall mutually agree to scheduling outages associated with performance of maintenance and repair services. When requested by City, Contractor shall be able to plan, staff and execute scheduled maintenance and inspections with 30 days advance notice.
7.2 For critical equipment, Contractor may be required to work shifts longer than twelve (12) hours per day or working alternative shifts including night shifts.
7.3 Contractor shall be available to provide 24-hour emergency services, seven (7) days per week, 365 days per year. Contractor shall provide a contact number for emergency services including holidays. Contractor shall respond via phone or email to emergency requests within 24 hours from the City’s notification.
Contractor and City shall mutually agree on scheduling the required emergency service.
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SECTION 8. WORK AUTHORIZATION PROCESS
Contractor acknowledges that Contractor is one of two firms selected to perform the Services, pursuant to two (2) separate agreements (collectively, the “Motor and Pump Maintenance and Repair Services Agreements”). Specific work will be assigned as set forth below.
8.1 Non-Emergency Work
8.1.1 When as-needed services are required, the City will request a Proposal for the work (Work Request). In its request, the City will provide a description of the work required, the deadline for response, and any other relevant information.
8.1.2 Proposal: Contractor shall prepare and submit a proposal (Proposal) for each Work Request that includes:
8.1.2.1 A work plan that includes a detailed description by task of the services to be performed.
8.1.2.2 A project timeline/schedule with discussion on any activities that may impact the project timeline/schedule.
8.1.2.3 A list of Contractor’s personnel and subcontractors including subcontractor Department of Industrial Relations (DIR)
number where required.
8.1.2.4 Any required drawings or documents.
8.1.2.5 A list of City responsibilities.
8.1.2.6 A final acceptance criteria.
8.1.2.7 An itemized cost proposal showing:
8.1.2.7.1 Hours and hourly rates by position as listed in Appendix B1 for both Contractor and
subcontractor personnel if applicable. Indicate
labor subject to prevailing wage
8.1.2.7.2 Itemized list of parts/materials including
indication of items subject to sales tax
8.1.2.7.3 Rental and/or specialty equipment
8.1.2.7.4 Reimbursable expenses, in accordance with the limitations set forth in Exhibit B
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8.1.2.7.5 Any additional costs such as but not limited to freight and permit fees
8.1.2.7.6 Breakdown of materials and labor sufficient to calculate sales tax
8.1.2.7.7 Estimated total cost including all required taxes
8.1.2.8 All submitted pricing shall be in accordance with the rates authorized in Exhibit B of this Agreement and the Proposal shall include sufficient information for the City to determine that rates are in accordance with the Agreement.
8.1.2.9 Costs for any additional equipment, parts, or services required for completion of the work as detailed in the Work Request and in Contractor’s Proposal but not reflected in the Contractor’s cost proposal shall be the sole responsibility of the Contractor and at no additional cost to the City.
8.1.2.10 The City will review the Proposal, and may elect to approve it, reject it, or use it as a basis for further negotiations with Contractor.
8.1.2.11 Provided that Contractor’s original Proposal includes all items listed in Section 8.1.2, Contractor and City may
negotiate whether the Work Authorization will be fixed price (lump sum) or based on specific rates of compensation (e.g., time and materials) for completion of the work.
8.1.2.12 Contractor must submit a revised Proposal to the City based upon such negotiations. If a fixed fee or lump sum is
authorized, a payment schedule shall be included. The final proposal shall include a clear breakdown of materials and labor indicating taxable and non-taxable items and an
estimate of sales tax.
8.1.3 Work Authorization
8.1.3.1 If the completion of the work in the Proposal will not result in total costs (including all previously authorized work)
exceeding the maximum compensation in Section 6 of the
Agreement, additional services may be authorized as set forth in this Section.
8.1.3.2 For Proposals with a total cost exceeding $50,000, Work Authorizations shall be issued in substantially the same format as Exhibit E. Each Work Authorization shall describe the services and deliverables the Contractor must provide, Agreement with KSB, Inc./Exhibit A – Scope of Services Page 18 of 44 1/26/23
the time limit within which the Contractor must complete the service and deliverables, the system acceptance criteria, warranty provisions, and the compensation for the additional services.
8.1.3.3 Subject to the terms and conditions of this Agreement, Contractor and City will negotiate the specific scope and requirements of each Work Authorization. Upon execution by the Parties, the Work Authorization shall become an
Approved Work Authorization.
8.1.3.4 Each Approved Work Authorization shall have a purchase order attached to it. A Purchase Order (“Purchase Order”) is a document issued by the City of Santa Clara Finance
Department which will reference the terms and conditions of this Agreement and serves and final approval for each
Approved Work Authorization.
8.1.3.5 For Proposals with a total cost less than $50,000, a signed Work Authorization is not required. The City will issue a Purchase Order authorizing work and the Purchase Order
will serve as the Approved Work Authorization.
8.1.3.6 Only the Assistant Director of the Electric Utility, Electric Utility Chief Operating Officer, or Chief Electric Utility Officer may, on behalf of the City, execute a Work Authorization.
Purchase Orders are issued by the Finance Department.
8.1.3.7 Except in the case of emergency which shall confirm to the conditions of Section 8.2 or where the circumstances in Section 8.1.4.4 apply, Contractor shall not initiate the additional services and the City will not compensate the Contractor until the City has executed the Work
Authorization for such additional services where applicable (“Approved Work Authorization”) and issued a Purchase
Order.
8.1.3.8 If Contractor begins work or fails to dispute a Purchase Order within three (3) business days, Contractor is assumed to have accepted the terms of the Purchase Order.
8.1.3.9 An Approved Work Authorization must be consistent with – and cannot alter - the terms and conditions of this
Agreement. The terms and conditions of this Agreement
shall prevail over any and all terms and conditions contained in an Approved Work Authorization - even if the Approved Work Authorization expressly states that it is intended to Agreement with KSB, Inc./Exhibit A – Scope of Services Page 19 of 44 1/26/23
control. Any conflicting terms and conditions in an Approved Work Authorization are invalid and unenforceable.
8.1.3.10 The City (through the individuals listed in section 8.1.3.6 or, in the case of Purchase Orders, the Finance Department) may terminate an Approved Work Order, Purchase Order, or an Emergency Work Order for convenience with ten (10)
days prior written notice to Contractor. In such event, the Contractor shall have no further rights hereunder, except that Contractor shall be paid for all Services adequately rendered prior to such termination.
8.1.4 Changes to Work Authorization
8.1.4.1 Contractor shall notify the City immediately when a situation occurs that may result in a change to the total project cost or specific line items in an Approved Work Authorization or Purchase Order. Contractor shall provide the reason for the change specific to each Approved Work Authorization or
Purchase Order.
8.1.4.2 If Contractor requires changes to a fixed price Work Authorization, Contractor shall only be permitted to request changes with justification such as additional scope
requested by City or unanticipated field conditions. For such changes, Contractor shall submit justification demonstrating that changes in cost are associated with changes in scope.
Contractor shall not be entitled to additional compensation for issues such as errors in calculation of original pricing, changes in staff, or other changes that are not directly related to changes requested by City.
8.1.4.3 In the event that unanticipated site conditions or other issues result in costs that exceed the approved Work Authorization or changes to line items in an Approved Work Authorization or Purchase Order, Contractor shall submit to the City an updated Proposal for review and approval from the City in advance of performing the work. The City will issue a new or amended Work Authorization (if required pursuant to Section
8.1.3) or Purchase Order (as applicable) to authorize such additional Services. Each changed Work Authorization and Purchase Order shall amend the Services and be
incorporated into the Services by reference.
8.1.4.4 In the event that issues are identified that can be most efficiently and economically resolved while on site, changes may be approved verbally (in the field), by telephone, or e- Agreement with KSB, Inc./Exhibit A – Scope of Services Page 20 of 44 1/26/23
mail by the following authorized individuals: Assistant Director of the Electric Utility, Electric Utility Chief Operating Officer, or Chief Electric Utility Officer. Such authorization shall be defined as an Interim Work Order. Contractor shall provide an updated Proposal within two (2) business days so that such changes can be documented in a Work
Authorization and/or Purchase Order.
8.2 Emergency Work
8.2.1 An Emergency Work Order should be utilized only in instances of a threat to public health or safety, loss of or damage to property, or serious disruption to essential services. An emergency is defined as an unforeseen event, circumstance, or combination of circumstances that the City reasonably determines to require immediate action.
8.2.2 Emergency Work Orders do not need to be in writing and may only be authorized by the Assistant Director of the Electric Utility, Electric Utility Chief Operating Officer, or Chief Electric Utility Officer. Such verbal authorizations will be confirmed by the City in writing within three (3) business days by a Purchase Order or, where applicable, a Work Authorization and/or Purchase Order.
8.2.3 When emergency services are required, Contractor shall send a Proposal to the City for the required services as soon as possible, but no later than three (3) business days after starting work. The Proposal shall be detailed in accordance with this Section 8 and shall also include any completed work. City will issue a Work Authorization (if required pursuant to Section 8.2) and Purchase Order as soon as reasonably practicable.
8.3 Each Approved Work Authorization and Purchase Order including those authorizations issued pursuant to Section 8.2 and 8.1.4.4 shall be incorporated into the Agreement by reference and subject to its terms and conditions and the Services contained therein shall be included within the Services.
8.4 Proposals, pricing and quotes are not confidential and will not be treated as confidential even if marked confidential when submitted.
8.5 Except in the situations described in Section 8.1.4.4 and Section 8.2, Contractor shall not initiate work before a Work Authorization has been approved and/or Purchase Order has been issued and the City has directed Contractor to perform Services.
8.6 Contractor shall not initiate any work which will extend past the term in Section 2 of the Agreement or exceed the maximum compensation in Section 6 of the Agreement.
Agreement with KSB, Inc./Exhibit A – Scope of Services Page 21 of 44 1/26/23
SECTION 9. APPLICABLE LAWS AND REGULATIONS
9.1 Contractor shall comply with all applicable present and future federal, state, and local regulations, ordinances and codes including but not limited to the U.S.
Occupational Safety and Health Administration (OSHA), and the California Department of Industrial Relations and the Division of Occupational Safety and Health (Cal/OSHA).
9.2 Where any applicable laws or ordinances conflict with the City’s requirements, the more stringent requirement(s) shall be followed. Contractor's failure to be thoroughly familiarized with the provisions of any applicable federal, state, and local regulations, ordinances and codes shall not relieve Contractor from compliance with the obligations and penalties resulting therefrom.
SECTION 10. WORKMANSHIP
10.1 Contractor shall perform all Services in a professional manner and environmental responsible manner that meets or exceeds industry and professional standards of performance. All activities shall be performed by a Contractor employee skilled in the particular task to which they are assigned.
10.2 All parts and/or components replaced or newly installed in the system shall be factory new and free of defects in title, materials and workmanship at the time of their delivery and installation. However, if approved by the City, Contractor may use rebuilt parts or new parts from another manufacturer if approved by the original manufacturer and/or City for use in the specific piece of equipment of the system.
10.3 Poor or inferior workmanship, as determined at the reasonable discretion of the City, shall be removed and replaced to conform to the quality standards of the industry, or otherwise corrected to the satisfaction of the City, at Contractor’s sole expense.
10.4 City reserves the right to inspect any work performed by Contractor and its subcontractors. If, upon inspection, the City determines that there is any unsatisfactory or defective work, Contractor must correct the work at no additional cost to the City.
SECTION 11. PERMITS AND LICENSES
Contractor shall obtain, maintain, and pay for all licenses, permits, and certificates required by any statute, ordinance, rule, or regulation.
SECTION 12. WARRANTY
12.1 Services. For each Approved Work Authorization, Purchase Order, and Emergency Work Order, all Services shall carry a warranty of a minimum of Agreement with KSB, Inc./Exhibit A – Scope of Services Page 22 of 44 1/26/23
twelve (12) months from the Service completion date as set forth in each Work Authorization. Warranty related-work shall be at no additional cost to the City.
12.2 Parts. With respect to any parts or other items furnished by Contractor to perform the Services, Contractor’s warranty shall extend to the end of the manufacturer’s warranty period or for six (6) months after completion of Services, whichever is later. Parts manufactured by Contractor or others shall be warranted for a period commensurate with that Part’s original manufacturer’s warranty to ensure that the City receives a warranty period that is as long as the original Part manufacturer’s warranty. Contractor shall provide the City with a copy of the extended manufacturer’s warranty.
12.3 Contractor shall be responsible for performing all warranty work within a reasonable time. In emergencies where damage may result from delay or where the loss of service may result, the City may choose to perform the work covered in the warranty. The cost associated with the City completing the warranty work shall be charged to Contractor, provided Contractor’s technical instructions are followed.
SECTION 13. CITY FURNISHED MATERIALS
Contractor shall credit the City for any City-furnished materials that are used, lost, stolen, damaged or rendered unusable by actions of Contractor. City agrees to provide such documentation as Contractor reasonably requests, including receipts.
SECTION 14. WORK AREA
14.1 Contractor shall ensure that the work site is free from all surplus materials, waste materials, debris, spills, dirt and rubbish caused by Contractor’s performance of Services. Upon completion of the Service or at the end of each day, whichever comes first, Contractor shall ensure the work area is in a clean safe condition. The City shall be the sole judge as to the adequacy of the cleanup.
14.2 Contractor shall follow all directions of City with regard to clean-up both during the course of, and upon completion of Services. If Contractor fails to clean up the work area within forty-eight hours (48) after demand by the City, City may charge Contractor for direct, out of pocket costs of clean-up or other work required to adequately protect the SVP's electrical or other facilities or to restore work area to a safe condition. City may invoice Contractor or deduct costs from Contractor’s invoice at City’s sole discretion.
14.3 Contractor must provide work and traffic signage as required to warn pedestrians and vehicular traffic of work in progress. Contractor may be required to direct pedestrians and traffic around the work area. Contractor shall also be responsible for providing all equipment and personnel necessary to properly perform the traffic control measures, including but not limited to, flaggers, cones, reflectors, electronic signs, barricades, caution tape, temporary paving, or steel plates.
Agreement with KSB, Inc./Exhibit A – Scope of Services Page 23 of 44 1/26/23
14.4 Contractor shall make all reasonable efforts to minimize obstructions and inconvenience to SVP’s operations and others who may be impacted by Contractor’s Services.
SECTION 15. CONTRACTOR’S EQUIPMENT, TOOLS, AND MATERIALS
15.1 All equipment, tools (including any specialty tooling), and materials required for the execution of the work shall be provided by Contractor. City will not loan tools or equipment to Contractor. Neither the Contractor nor its workers shall attempt to borrow tools or other materials from City personnel.
15.2 Tools and equipment shall be kept in proper operating condition and used only for the purpose for which they were designed. City reserves the right to suspend work if improper tools or equipment are being used or operated.
15.3 Tools and equipment shall be safely stored overnight under lock and key. Loss of any tools or equipment shall be reported immediately to the City.
15.4 All vehicles, equipment, and ladders shall be secured when not in use. Keys shall not be left in any vehicles or equipment when not in use.
15.5 City will not be responsible for the loss of tools, equipment, or materials.
SECTION 16. DISPOSAL OF WASTE & SCRAPS
16.1 All waste generated by Contractor in the performance of Services must be managed in accordance with all applicable local, state, and federal regulations and laws. Contractor is solely responsible for arranging and implementing the proper handling, management, storage, transport, and disposal of all wastes including any hazardous materials.
16.2 Contractor shall provide the City with a written report of all disposal of Contractor- generated waste within twenty-four (24) hours of disposal unless a shorter timeline is required by local, state, and/or federal regulations.
16.3 Contractor shall recycle all material scraps, and credit the value to the City.
SECTION 17. SAFETY
17.1 Safety must always be the top priority. Contractor shall take all necessary precautions for the safety of all persons on the work site. Contractor must erect and properly maintain at all times, as required by the conditions and progress of the Services, all necessary safeguards for the protection of all persons and the public including posting danger signs and warnings against known or unusual hazards.
Agreement with KSB, Inc./Exhibit A – Scope of Services Page 24 of 44 1/26/23
17.2 Contractor shall maintain an effective Injury and Illness Prevention Program (IIPP) in writing pursuant to Section 3203, Title 8 of the California Code of Regulations (CCR). The written plan shall include specific instructions with regard to hazards unique to the employee's job assignment. At City’s request, a copy of the Contractor’s IIPP shall be submitted to the City prior to the execution of an agreement and be made available on-site.
17.3 Contractor shall schedule safety inspections as necessary and as may be requested by the City to identify and correct unsafe conditions and work practices.
The City reserves the right to accompany Contractor during these inspections.
17.4 Contractor must comply with all site-specific safety requirements and procedures including but not limited to Lockout/Tagout (LOTO), Energy Isolation, Confined Space, Fall Protection, Chemical Safety, Hazardous Waste, and Personnel Protective Equipment (PPE).
17.5 Contractor’s employees (including any subcontractors) shall utilize appropriate Personal Protective Equipment (PPE) and Fire Resistant (FR) clothing, as required. Any required PPE and FR clothing shall be provided at the expense of Contractor.
17.6 When requested by the City, Contractor shall provide an on-site Safety Manager/Supervisor to ensure compliance with all applicable Safety rules and regulations, perform daily audits and submit daily reports to the City that identify discrepancies or non-compliance, provide direction in regards to safety rules and regulations to Contractor Project Manager and/ On-Site Supervisor (as defined in Section 19) and Contractor employees.
SECTION 18. INJURY/PROPERTY DAMAGE
Contractor shall notify the City immediately in the event of an injury or property damage that occurs during the performance of the services. Contractor shall investigate the reported injury or damage upon request from City and provide City with regular updates including all accident reports until the investigation is resolved. City reserves the right to perform its own investigation. Should City choose to conduct its own investigation, Contractor shall assist as required.
SECTION 19. CONTRACTOR’S PERSONNEL
19.1 Project Manager/On-Site Supervisor
Contractor must designate one (1) Project Manager or On-Site Supervisor to communicate with the City during performance of Services. The Project Manager/On-Site Supervisor is the designated point of contact for the City to communicate work tasks and receive feedback. The Project Manager/On-Site Supervisor must be capable of communicating effectively with SVP staff.
Agreement with KSB, Inc./Exhibit A – Scope of Services Page 25 of 44 1/26/23
19.2 Staffing
19.2.1 Contractor shall be responsible for its employees' professional and technical competence and will select appropriate individuals who are qualified, certified, and/or licensed to perform the assigned task.
19.2.2 Contractor shall ensure its employees and any subcontractors supply proper identification when requested by the City.
19.2.3 Contractor shall inform City immediately of any change in key personnel assigned to this agreement. Contractor shall submit the resumes and other qualifications of the proposed replacement employee(s) to City for review and approval.
19.3 Employee Training
19.3.1 At Contractor’s sole cost and expense, Contractor shall provide recurring, periodic (no less than annual) training to its employees (including subcontractors) appropriate to the duties and responsibilities of each employee.
19.3.2 It is essential that all employees be thoroughly trained and familiar with the equipment and procedures to be followed.
19.3.3 Training shall follow Contractor’s standard policies and procedures and shall be in compliance with all applicable federal, state, and local laws, including but not limited to safety and injury prevention training requirements contained in the OSHA standards.
19.3.4 Contractor shall be familiar with SVP’s operating standards. All employees are required to watch SVP’s safety video once per calendar year or prior to the commencement of Services.
19.3.5 At the City’s request, Contractor shall submit copies of training records for its employees.
19.4 Standards of Conduct
19.4.1 Contractor shall be solely responsible for its employees while on or about the work site, including but not limited to, maintaining discipline, ensuring standards of conduct are adhered to, and enforcing safety policies, procedures, and orders. Contractor shall ensure that while on or about the work site, its employees do not:
19.4.1.1 Display a discourteous, abrupt, abrasive, or belligerent attitude.
19.4.1.2 Possess or use alcohol, narcotics, firearms, or illegal drugs.
Agreement with KSB, Inc./Exhibit A – Scope of Services Page 26 of 44 1/26/23
19.4.1.3 Use any prescribed or over-the-counter medications which can potentially impair the employee's ability to perform the work safely.
19.4.1.4 Present or identify themselves as employees of the City of Santa Clara.
19.4.1.5 Possess any firearms, narcotics, drugs, intoxicants, or other restricted materials while on the premises.
19.4.2 Contractor shall immediately remove its employee and provide a replacement, at the request of City, in the event an employee fails to meet the standards of conduct set forth above.
19.4.3 In the event that a complaint is made against Contractor’s employee, Contractor shall notify the City immediately and provide a written explanation detailing how the situation was resolved.
SECTION 20. E-BUILDER
20.1 When required by City, Contractor shall use utilize e-Builder for submission of data and documents throughout the term of this agreement.
20.2 e-Builder is a web-based construction management application hosted by e- Builder, Inc. For certain projects to be defined by the City, e-Builder shall be the primary means of project information submission and management or as otherwise agreed upon with the City.
20.3 The City will establish the Contractor's access to e-Builder by providing licenses to Contractor’s personnel at City’s cost. The Contractor’s designated users will be required to set up their computers/systems to use e-Builder in accordance to the e-Builder User Training Guide. The City reserves the right to limit the licenses issued to Contractor in the future.
20.4 Contractor is required to obtain all necessary training to use the software. The City will provide one classroom training or a web-based seminar. A training session is 1 - 2 hours.
20.5 e-Builder is a web-based environment and therefore it is subject to the inherent speed and connectivity limitations of the Internet. Contractor is responsible for its own connectivity to the Internet. e-Builder’s response time is dependent on the Contractor's equipment, including processor speed, Internet access speed, etc., and current traffic on the Internet. The City will not be liable for any delays associated with the usage of e-Builder including, but not limited to slow response time, downtime periods, connectivity problems, or loss of information. The Contractor shall ensure connectivity to the e-Builder system whether at the home Agreement with KSB, Inc./Exhibit A – Scope of Services Page 27 of 44 1/26/23
office or job site. Under no circumstances will the usage of e-Builder be grounds for a time extension or cost adjustment to the Agreement.
20.6 Data entered in a collaborative mode (entered with the intent to share as determined by permissions and workflows within the e-Builder system) by the City and the Contractor will be jointly owned.
20.7 Contractor is responsible for managing, tracking, and documenting the work to comply with the requirements of this Agreement. The City's acceptance via automated system notifications or audit logs extends only to the face value of the submitted documentation and does not constitute a validation of the Contractor's submitted information.
20.8 At the City’s sole discretion, project documents may be processed and distributed digitally over the internet or may be required to be presented in hard copy format.
20.9 While regular email may still be used for communication, when requested by the City, e-Builder shall be utilized as much as possible in connection with all document and information management required in the performance of projects where City has directed the use of e-Builder. Contractor shall be responsible for scanning or otherwise converting to electronic format all project submittals and Contractor correspondence, drawings, sketches, etc., and uploading them to the e-Builder website and shall be responsible for the validity of the information placed in e-Builder. The Contractor shall utilize the existing forms and processes in e-Builder to the maximum extent possible. If a required form does not exist in e- Builder, the Contractor shall include a form of its own or one provided by the City (if available) as an attachment to a submittal or process. Documents and information to be submitted electronically include, but are not limited to:
20.9.1 Correspondence
20.9.2 Meeting Minutes
20.9.3 Submittals and Shop Drawings
20.9.4 Product Data, reports, certifications, etc. must be submitted in PDF. (If a sample can be scanned, it is requested that a scanned PDF copy be submitted with the sample.
20.9.5 Requests for Information (RFI’s)
20.9.6 Submittals and Shop Drawings
20.9.7 Change Order requests and documentation, including record copies of change orders, proposals, and modifications.
20.9.8 Pay Applications
Agreement with KSB, Inc./Exhibit A – Scope of Services Page 28 of 44 1/26/23
20.9.9 “Official” correspondence (such as letters) including informal correspondence, such as email.
20.9.10 Pre-Task Plans (PTPs)
20.9.11 Daily Construction Reports and other Daily Reports including Contractor Quality Control (CQC) Reports
20.9.12 All official reports, such as Commissioning reports
20.9.13 Notices and Claims
20.9.14 Operations and Maintenance Manuals
20.9.15 All Close-out documents, and
20.9.16 All testing results
20.10 Archive Copies: When requested by City, Contractor shall keep an archive copy of all digital data created by Contractor, or submitted to Contractor via e-mail, or resident on the e-Builder for the duration of the Project. Such data shall be available to City, and authorities with the jurisdiction (including funding agencies or representatives) on demand.
20.11 Should the City replace e-Builder with a different project management tool, Contractor, and subcontractors shall be required to utilize the new project management tool selected by the City.
SECTION 21. SHIPPING AND FREIGHT
21.1 Contractor shall be responsible for shipment and delivery of all required products and materials to City. All freight charges will be pre-paid by Contractor. All products and materials shall be entirely at Contractor’s risk from the time they are placed in the possession of the carrier for shipment to/from City until final acceptance by the City. Contractor shall ensure that the products and materials are insured against “all risks” from the time the products and materials are placed in the possession of the carrier for shipment to/from City. Contractor will pack and ship all equipment in accordance with good commercial practices.
21.2 Contractor shall notify City at least sixty (60) minutes prior to arrival of any deliveries to City. City will provide a contact name and phone number to the Contractor. The shipping location is:
City of Santa Clara, Donald Von Raesfeld Power Plant
850 Duane Ave., Santa Clara, CA 95054
Agreement with KSB, Inc./Exhibit A – Scope of Services Page 29 of 44 1/26/23
SECTION 22. TRANSPORTATION
Contractor shall ensure that the products and equipment are insured against “all risks” from the time they are placed in the possession of the Contractor for shipment to/from the City until received by the City at a City-designated facility.
Agreement with KSB, Inc./Exhibit B – Schedule of Fees and Payment Provisions Page 30 of 44 1/26/23
EXHIBIT B
SCHEDULE OF FEES AND PAYMENT PROVISIONS
SECTION 1. MAXIMUM COMPENSATION
The maximum compensation payable to Contractor during the Term shall not exceed the amount in Section 6 of the Agreement.
SECTION 2. RATES
Compensation under each Work Authorization and /or Purchase Order shall be in accordance with the rates set forth herein.
2.1 Rates. Contractor shall submit Proposals and invoice all Services at the rates listed in Appendix B1 attached and incorporated by reference.
2.2 Rates listed in Appendix B-1 (Rate Schedule) are fully burdened and will remain fixed for the first two (2) years of the Agreement.
2.3 Rate Increase. After the first two years, rates may be negotiated no more than once annually. Contractor shall notify the City ninety (90) days in advance of any proposed rate increase. Any rate increases are subject to approval by the City and must be substantiated by the Contractor to the satisfaction of the City. All rate adjustments must be approved by the City by executing an amendment to this Agreement. References to alternate rates in quotes that have not been separately authorized pursuant to this section are not approved.
2.4 R
eimbursable Expenses. Any and all reimbursable expenses related to each Work Authorization or Purchase Order shall be described in Contractor’s Proposal as set forth in Section 8 of Exhibit A and accounted for in the total cost for each Proposal, Work Authorization, and Purchase Order, as applicable. Expenses shall be reimbursable only to the extent that (1) Contractor submits sufficient documentation to City that the expenses were directly incurred in providing the required Services, (2) Contractor demonstrates that such expenses aren’t included in the hourly rate where applicable, (3) such expenses were approved in advance pursuant to Section 8 of Exhibit A, and (4) Contractor submits receipts, invoices, or other supporting documentation demonstrating that such reimbursable costs were incurred. Any reimbursement to the Contractor is limited to the expenses set forth below in the Reimbursable Expense Schedule.
Reimbursable Expense Schedule Mark Up
1. The cost of mailing, shipping and/or delivery of any documents or materials.
No Markup
2. The cost of photographing, printing, reproducing and/or copying any documents or materials.
No Markup
Agreement with KSB, Inc./Exhibit B – Schedule of Fees and Payment Provisions Page 31 of 44 1/26/23
Reimbursable Expense Schedule Mark Up
3. Charges for outside services (including subcontractor fees, equipment, materials, and facilities not furnished directly by Contractor).
Not to exceed 15%
4. Other reimbursable expenses with prior written approval from the City
No Markup
5. Allowable mileage will be charged at the prevailing IRS rate per mile.
No Markup
6. Unless approved in writing (e-mail acceptable) in advance, meals, lodging, and related per diem shall not exceed the rates outlined by United States General Services
Administration (GSA).
https://www.gsa.gov/travel-
resources. Airfare or rental car, where applicable shall be at economy rates.
No Markup
SECTION 3. PAYMENT PROVISIONS
3.1 Time and Material. For As-Needed Services authorized to be paid on a time and material basis, Contractor shall provide an invoice to the City on a monthly basis for services completed in the preceding month, pursuant to the rates listed in Table B1 in Appendix B1. The invoice must include the following information:
3.1.1 Invoice Number, Purchase Order Number, and Invoice Period.
3.1.2 Current amount due with a time and materials breakdown: titles, hours, hourly rates, and any City approved reimbursable expenses itemized with supporting documentation.
3.1.3 Each invoice shall provide sufficient detail for City to verify that the rates listed in Table B1 are charged. Additionally, invoices shall include sufficient detail to allow for accurate comparison with certified payroll submittals.
3.2 Fixed Price. For As-Needed Services authorized to be paid on a fixed price basis, Contractor shall provide an invoice to the City based on either (a) the percentage of services completed during the previous month or (b) a lump sum amount upon the completion of deliverable(s), as specified in the Purchase Order. Invoices must include the following information:
3.2.1 Invoice Number, Purchase Order Number, and Invoice Period.
3.2.2 Detailed information on the work performed on each deliverable or task completed on each project, as applicable.
3.2.3 Contractor shall not invoice labor costs subject to prevailing wages in advance of performing the applicable services.
Agreement with KSB, Inc./Exhibit B – Schedule of Fees and Payment Provisions Page 32 of 44 1/26/23
3.2.4 With regard to milestone payments, Contractor shall invoice each milestone payment in full. Contractor shall not split milestone payments into multiple invoices.
3.3 Pre-Payment. City shall not be required to pay a deposit or any other form of pre- payment prior to Contractor beginning work.
3.4 Payment Limited to Satisfactory Work. Contractor is not entitled to any payments until the City concludes that the services and/or any furnished deliverables have been satisfactorily performed, such approval not to be unreasonably withheld or delayed.
3.5 Recalculation. The City may recalculate and pay invoices based on the rates established in this Agreement.
3.6 Certified Payroll. When applicable, Contractor must submit all necessary certified payrolls through LCP Tracker in advance of its request for payment, in accordance with Exhibit D.
3.7 Disputed Invoices. If the City in good faith disputes any portion of an invoice, the City shall pay the undisputed portion of the invoice and submit written notice to Contractor regarding the disputed amount. The notice shall include documentation supporting the disputed amount.
3.8 Payment. If there are no discrepancies or deficiencies in the submitted invoice and Contractor has submitted all required certified payroll, City shall process the invoice for payment.
Agreement with KSB, Inc./Appendix B-1 -Rate Sheet Page 33 of 44 1/26/23
APPENDIX B-1
RATE SCHEDULE
SECTION 1. RATES
Contractor shall charge, and the City shall pay for actual Services rendered and authorized according to the process outlined in Section 8 of Exhibit A. The rates applicable for the Services are listed below in Table B1.
In cases where services are required but not listed below, Contractor shall submit rates for approval by the City in advance, in writing before performing the Services. For the avoidance of doubt, any changes to the rates in Table B1 must be authorized by an amendment to the Agreement in accordance with Section 2.3 of Exhibit B. Rate changes are not permitted as part of a Work Authorization process.
TABLE B1
Labor Straight Time
Hourly Rate
Overtime
Hourly Rate
Double Time
Hourly Rate
Shop and Field Service Technician
for pumps and motors powered by
0-200 horsepower (HP)
$110.00 $165.00 $220.00
Shop and Field Service Technician
for pumps and motors powered by
200 HP or higher
$160.00 $240.00 $320.00
Field Engineer $218.00 $327.00 $436.00
Quality Control or Safety
Supervisor
$218.00 $327.00 $436.00
Services
Pickup and Delivery Pickup and delivery of parts and light equipment to/from the Contractor’s Bakersfield, CA office
and to/from City locations will be done via a
shipping carrier (e.g., FedEx, UPS, etc.).
Contractor will bill actual cost with no markup in
accordance with Section 2.4 in Exhibit B.
Agreement with KSB, Inc./Appendix B-1 -Rate Sheet Page 34 of 44 1/26/23
Transportation For transportation of heavy equipment to/from the Contractor’s Bakersfield, CA office and to/from
City locations:
(a) $1,000/roundtrip for trips scheduled between
Monday and Friday, from 7 AM to 5 PM PST/PDT
(b) $2,000/roundtrip for trips scheduled between
Monday and Friday after 5 PM PST/PDT, as well
as on Saturdays and Sundays
Laser Alignment and Vibration
Equipment $350.00 first day and $100.00 per day thereafter
Parts
Parts manufactured by Contractor shall be at price authorized in Work Authorization.
Parts from the original equipment manufacturer shall be at Contractor’s actual cost plus 15% markup.
SECTION 2. DEFINITIONS
The following definitions apply to the rates listed in Table B1:
2.1 “Straight Time” means the first eight (8) hours worked Monday through Friday, excluding U.S. Federal Holidays.
2.2 “Overtime ” means the:
2.2.1 hours worked in excess of eight (8) hours, from Monday through Friday; or
2.2.2 first eight (8) hours worked on a Saturday.
2.3 “Double Time” means the:
2.3.1 hours worked in excess of twelve (12) hours Monday through Friday; or
2.3.2 hours worked in excess of eight (8) hours on Saturdays; or
2.3.3 hours worked during U.S. Federal Holidays; or
2.3.4 hours worked on Sundays.
Agreement with KSB, Inc./Exhibit C – Insurance Requirements Page 35 of 44
EXHIBIT C
INSURANCE REQUIREMENTS
Without limiting the Contractor’s indemnification of the City, and prior to commencing any of the Services required under this Agreement, the Contractor shall provide and maintain in full force and effect on an annual renewal basis, during the period of performance of the Agreement and for twenty-four (24) months following acceptance by the City, at its sole cost and expense, the following insurance policies from insurance companies authorized to do business in the State of California. These policies shall be primary insurance as to the City of Santa Clara so that any other coverage held by the City shall not contribute to any loss under Contractor’s insurance. The coverages, provisions and endorsements are as follows:
1. COMMERCIAL GENERAL LIABILITY INSURANCE
1.1. Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance Services Office form CG 00 01. Policy limits are subject to review, but shall be, the following:
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products/Completed Operations Aggregate
$1,000,000 Personal Injury
1.2. Exact structure and layering of the coverage shall be left to the discretion of Contractor; however, any excess or umbrella policies used to meet the required limits shall as broad as the underlying coverage and shall otherwise follow form.
1.3. The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Contractor to comply with the insurance requirements of this Agreement:
1.3.1. Coverage shall be on a “pay on behalf” basis with defense costs payable in addition to policy limits;
1.3.2. There shall be no cross-liability exclusion which precludes coverage for claims or suits by one insured against another; and
1.3.3. Coverage shall apply separately to each insured against whom a claim is made, or a suit is brought, except with respect to the limits of liability.
2. BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as Agreement with KSB, Inc./Exhibit C – Insurance Requirements Page 36 of 44 broad as ISO form CA 00 01 with policy limits minimum of one million dollars ($1,000,000) each accident. Liability coverage shall apply to all owned (if any), non- owned and hired autos used for Contractor’s Services.
3. WORKERS’ COMPENSATION
3.1. Workers’ Compensation Insurance Policy as required by statute and employer’s liability with limits of million dollars ($1,000,000) policy limit Bodily Injury by disease, one million dollars ($1,000,000) each accident/Bodily Injury and one million dollars ($1,000,000) each employee Bodily Injury by disease.
3.2. This policy must include a Waiver of Subrogation in favor of the City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents as permitted by law.
4. PROFESSIONAL AND UMBRELLA/EXCESS LIABILITY
4.1. Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against negligent acts, errors or omissions of the Contractor. Covered services as designated in the policy must specifically include Services performed under this Agreement. Coverage shall be in an amount of one million dollars ($1,000,000) per claim or two million dollars ($2,000,000) aggregate.
4.2. Umbrella/Excess Liability - Policy with limits of $9,000,000 for each Occurrence and $9,000,000 General Aggregate. The Umbrella/Excess Liability Policy shall conform to the terms and conditions of the underlying policies. The schedule of underlying policies to the Umbrella/Excess Liability Policy shall include the General Liability, Auto Liability, and Employer’s Liability policies.
5. COMPLIANCE WITH REQUIREMENTS
All of the following clauses and/or endorsements, or similar provisions, must be part of each commercial general liability policy, and each umbrella or excess policy.
5.1. Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds in respect to liability arising out of Contractor’s work for City, using Insurance Services Office (ISO) Endorsement CG 20 10 11 85.
5.2. Primary and non-contributing. Each insurance policy provided by Contractor shall contain language or be endorsed to contain wording making it primary insurance as respects to, and not requiring contribution from, any other insurance which the indemnities may possess, including any self-insurance or self-insured retention they may have. Any other Agreement with KSB, Inc./Exhibit C – Insurance Requirements Page 37 of 44 insurance indemnitees may possess shall be considered excess insurance only and shall not be called upon to contribute with Contractor’s insurance.
5.3. Cancellation.
5.3.1. No cancellation of the coverage provided due to non-payment of premiums shall be effective until written notice by Contractor has been given to City at least thirty (30) days prior to the effective date of such cancellation.
5.3.2. NOT USED.
5.3.3. Other Endorsements. Other endorsements may be required for policies other than the commercial general liability policy if specified in the description of required insurance set forth in Sections 1 through 5 of this Exhibit C.
6. ADDITIONAL INSURANCE RELATED PROVISIONS
Contractor and City agree as follows:
6.1. Contractor agrees to use reasonable efforts to require that subcontractors, and any other party involved with the Services, who is brought onto or involved in the performance of the Services by Contractor, maintain insurance coverage as is usual and customary for Services provided under the Purchase Order. Contractor agrees that upon written request by City, all certificates of insurance documents provided by such subcontractors and others engaged in a project will be shared with City.
6.2. Contractor agrees that it is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto, unless otherwise agreed by the City and Contractor.
6.3. The City reserves the right to withhold payments from the Contractor in the event of material noncompliance with the insurance requirements set forth in this Agreement.
7. EVIDENCE OF COVERAGE
Prior to commencement of any Services under this Agreement, Contractor, and each and every subcontractor (of every tier) shall, at its sole cost and expense, provide and maintain the insurance coverage with the endorsements and deductibles indicated in this Agreement. Such insurance coverage shall be maintained with insurers, and under carriers’ current forms of policies, satisfactory to City and as described in this Agreement. Contractor shall file with the City all certificates and Agreement with KSB, Inc./Exhibit C – Insurance Requirements Page 38 of 44 endorsements for the required insurance policies for City’s approval as to adequacy of the insurance protection.
8. EVIDENCE OF COMPLIANCE
Contractor shall provide the required proof of insurance compliance, consisting of Insurance Services Office (ISO) endorsement forms or their equivalent and the ACORD form 25-S certificate of insurance (or its equivalent), evidencing all required coverage shall be delivered to City, or its representative as set forth below, at or prior to execution of this Agreement. Unless otherwise required by the terms of this Agreement, all certificates, endorsements, and other items required to be delivered to City pursuant to this Agreement shall be e-mailed to: [email protected].
9. QUALIFYING INSURERS
All of the insurance companies providing insurance for Contractor shall have, and provide written proof of, an A. M. Best rating of at least A minus 6 (A- VI) or shall be an insurance company of equal financial stability that is approved by the City or its insurance compliance representatives.
Agreement with KSB, Inc./Exhibit D – Labor Compliance Page 39 of 44
EXHIBIT D
LABOR COMPLIANCE
This Agreement is subject to the requirements of California Labor Code section 1720 et seq. requiring the payment of prevailing wages, the training of apprentices, and compliance with other applicable requirements.
A. Prevailing Wage Requirements
1. Contractor shall be obligated to pay not less than the General Prevailing Wage Rate, which can be found at www.dir.ca.gov and are on file with the City Clerk’s office, which shall be available to any interested party upon request. Contractor is also required to have a copy of the applicable wage determination posted and/or available at each job site.
2. Specifically, contractors are reminded of the need for compliance with Labor Code Section 1774-1775 (the payment of prevailing wages and documentation of such), Section 1776 (the keeping and submission of accurate certified payrolls) and 1777.5 in the employment of apprentices on public works projects. Further, overtime must be paid for work in excess of 8 hours per day or 40 hours per week pursuant to Labor Code Section 1811-1813.
3. Special prevailing wage rates generally apply to work performed on weekends, holidays and for certain shift work. Depending on the location of the project and the amount of travel incurred by workers on the project, certain travel and subsistence payments may also be required.
Contractors and subcontractors are on notice that information about such special rates, holidays, premium pay, shift work and travel and subsistence requirements can be found at www.dir.ca.gov.
4. Only bona fide apprentices actively enrolled in a California Division of Apprenticeship Standards approved program may be employed on the project as an apprentice and receive the applicable apprenticeship prevailing wage rates. Apprentices who are not properly supervised and employed in the appropriate ratio shall be paid the full journeyman wages for the classification of work performed.
5. As a condition to receiving progress payments, final payment and payment of retention on any and all projects on which the payment of prevailing wages is required, Contractor agrees to present to City, along with its request for payment, all applicable and necessary certified payrolls (for itself and all applicable subcontractors) for the time period covering such payment request. The term “certified payroll” shall include all required documentation to comply with the mandates set forth in Labor Code Section 1720 et seq, as well as any additional documentation requested by the City or its designee including, but not limited to: certified Agreement with KSB, Inc./Exhibit D – Labor Compliance Page 40 of 44 payroll, fringe benefit statements and backup documentation such as monthly benefit statements, employee timecards, copies of wage statements and cancelled checks, proof of training contributions (CAC2 if applicable), and apprenticeship forms such as DAS-140 and DAS-142.
6. In addition to submitting the certified payrolls and related documentation to City, Contractor and all subcontractors shall be required to submit certified payroll and related documents electronically to the California Department of Industrial Relations. Failure to submit payrolls to the DIR when mandated by the project parameters shall also result in the withholding of progress, retention and/or final payment.
7. No contractor or subcontractor may be listed on a bid proposal for a public works project unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)].
8. No contractor or subcontractor may be awarded a contract for public work on a public works project, unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5. Contractors MUST be a registered “public works contractor” with the DIR AT THE TIME OF BID. Where the prime contract is less than $15,000 for maintenance work or less than $25,000 for construction alternation, demolition or repair work, registration is not required.
9. All contractors/subcontractors and related construction services subject to prevailing wage, including but not limited to: trucking, surveying and inspection work must be registered with the Department of Industrial Relations as a “public works contractor”. Those you fail to register and maintain their status as a public works contractor shall not be permitted to perform work on the project.
10. Should any contractor or subcontractors not be a registered public works contractor and perform work on the project, Contractor agrees to fully indemnify the City for any fines assessed by the California Department of Industrial Relations against the City for such violation, including all staff costs and attorney’s fee relating to such fine.
11. This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
B. Audit Rights
All records or documents required to be kept pursuant to this Agreement to verify compliance with this Exhibit shall be made available for audit at no cost to City, at any time during regular business hours, upon written request by the City Attorney, City Auditor, City Manager, or a designated representative of any of these officers. Copies of such records or documents shall be provided to City for audit at City Hall when it is Agreement with KSB, Inc./Exhibit D – Labor Compliance Page 41 of 44 practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records or documents shall be made available at Contractor’s address indicated for receipt of notices in this Agreement.
C. Enforcement
1. City shall withhold any portion of a payment; including the entire payment amount, until certified payroll forms and related documentation are properly submitted, reviewed and found to be in full compliance. In the event that certified payroll forms do not comply with the requirements of Labor Code Section 1720 et seq., City may continue to hold sufficient funds to cover estimated wages and penalties under the Agreement.
2. Based on State funding sources, this project may be subject to special labor compliance requirements of Proposition 84.
3. The City is not obligated to make any payment due to Contractor until Contractor has performed all of its obligations under these provisions. This provision means that City can withhold all or part of a payment to Contractor until all required documentation is submitted. Any payment by the City despite Contractor’s failure to fully perform its obligations under these provisions shall not be deemed to be a waiver of any other term or condition contained in this Agreement or a waiver of the right to withhold payment for any subsequent breach of this Exhibit.
City or the California Department of Industrial Relations may impose penalties upon contractors and subcontractors for failure to comply with prevailing wage requirements.
These penalties are up to $200 per day per worker for each wage violation identified; $100 per day per worker for failure to provide the required paperwork and documentation requested within a 10-day window; and $25 per day per worker for any overtime violation.
Agreement with KSB, Inc./Exhibit E – Sample Work Authorization Page 42 of 44 Rev. 07-01-18
EXHIBIT E
SAMPLE WORK AUTHORIZATION FORM
This work authorization (“Work Authorization”) is made pursuant to the Agreement for Service between the City of Santa Clara and KSB, Inc. (“Agreement”). This Work Authorization is governed by the provisions of the Agreement and is hereby incorporated into the Agreement by reference. All Services are subject to the terms and rates included in the Agreement. In the event of any inconsistency between the terms and conditions of the Work Authorization and the Agreement, the terms and conditions of the Agreement shall govern and control.
PART A: GENERAL INFORMATION
WORK AUTHORIZATION
NUMBER: Original
First Revised
Second Revised
Other Contract No.
Contractor Name/Address:
Expiration Date of Agreement:
Contractor’s Project Manager: Name: Email:
City’s Project Manager Name: Email:
Period of Performance for this
Work Order:
Start Date: Expected Completion Date:
Maximum Compensation of Agreement:
Previously Committed Funds:
Available Funds
Maximum Compensation for this Work Authorization
Remaining Available Funds
Sufficient funds are available in Fund #:
(to be completed by City)
Contractor Representative Name (Print)
Contractor Representative Signature
Contractor Representative Signature Date
City Project Manager Name (Print)
Authorized City Representative (Print)
City Representative Signature
City Representative Signature Date
* Authorized City Representatives include Electric Utility Assistant Director, Chief Electric Utility Operating Officer, Chief Electric Utility Officer
Agreement with KSB, Inc./Exhibit E – Sample Work Authorization Page 43 of 44 Rev. 07-01-18
PART B: SERVICES TO BE PERFORMED
10. REVISED WORK AUTHORIZATION
No
If yes, provide a brief description of the change(s).
11. SCOPE OF SERVICES TO BE PERFORMED
The Contractor shall perform the service(s) described below in accordance with all of the terms and conditions of the Agreement. (Insert a detailed scope of work below or attach as a separate file.) Scope of Services and cost proposal shall meet all of the provisions of Section 8 of Exhibit A and Section 2 of Exhibit B.
12. COMPENSATION
a. Basis of Compensation: Time & Materials Fixed Fee b. Reimbursable Expenses:
No expenses are reimbursable.
Expenses are separately reimbursable in the maximum amount of:
c. Payment Schedule:
Monthly Completion of Deliverable/Milestone Completion of Work d. Payment Terms. Provide payment terms below or attach as a separate file. *Payment for on-site labor may not be paid in advance. On-site labor shall not be invoiced until completed and Customer will not make payment until certified payroll is approved.
13. LIQUIDATED DAMAGES
Liquidated Damages do not apply.
Liquidated Damages apply as follows:
Agreement with KSB, Inc./Exhibit E – Sample Work Authorization Page 44 of 44 Rev. 07-01-18
It is mutually agreed by Contractor and City that, in event completion of the Services to be provided by the Contractor under this Agreement is delayed beyond ___________________, 20___, City will suffer
damages and will incur other costs and expenses of a nature and amount which is difficult or impractical to determine. The Parties agree that by way of ascertaining and fixing the amount of damages, costs and expenses, and not by way of penalty, Contractor shall pay to City the sum of __________________________________dollars ($____________) per day in liquidated damages to a cap of _________. Contractor agrees that City may deduct the amount of said unpaid damages from any money due or that may become due to Contractor under this Agreement.
Notwithstanding the foregoing both Parties understand and agree that no liquidated damages shall accrue for delivery delays due to any modification of the work scope, for delays caused by or attributable to the City, for delays caused by or attributable to third parties not under the direct control of Contractor or any force majeure event during the period of service of this Work Authorization.
Such liquidated damages shall be the City's sole and exclusive remedy for Contractor’s failure to meet the agreed delivery schedule.
14. ACCEPTANCE CERTIFICATE
Acceptance Certificate not required.
Acceptance Certificate required.