2. RFB 25-26-03 Attachment B - Exemplar Agreement 2.0 post.pdf

Agreement with *insert contractor’s name Page 1 of 47 Rev. 07-01-18

EBIX Insurance No. *S20000_____

AGREEMENT FOR SERVICES

BETWEEN THE

CITY OF SANTA CLARA, CALIFORNIA,

AND

*INSERT CONTRACTOR’S NAME

PREAMBLE

This Agreement is made and entered into on the date last signed by the Parties (“Effective Date”) between the City of Santa Clara, California, a chartered California municipal corporation (City) and *insert Contractor’s name, a[n] choose one: _________ (enter State name) corporation/partnership/individual, (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 (“Services”) 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 agree that Contractor will perform the Services under the terms and conditions set forth in this Agreement.

NOW, THEREFORE, for and in consideration of the mutual promises, covenants, and conditions herein contained, the Parties hereto 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

Agreement with *insert contractor’s name Page 2 of 47

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

A. Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by written amendment to this Agreement, the term of this Agreement shall begin on *______________ __, 20___ and terminate on *______________ __, 20___ (“Initial Term”).

B. After the Initial Term, City reserves the right, at its sole discretion, to extend the term of this Agreement for up to five (5) additional years through *______________ __, 20 _(“Option Periods”) in such increments as determined by City. The Option Periods shall be authorized through an Amendment to this Agreement executed by the Parties. The Initial Term and Option Periods shall collectively be referred to as “Term”.

3. SCOPE OF SERVICES AND 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 addition to those warranties contained in Exhibit A, Contractor expressly warrants that all Services and materials covered by this Agreement shall be fit for the purpose intended, shall be free from defect and shall conform to the specifications, requirements, and instructions applicable to this Agreement.

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 correct or replace Services or materials, City may make corrections or replace Services or materials and charge Contractor for the cost incurred by City.

5. QUALIFICATIONS OF CONTRACTOR - STANDARD OF CARE

A. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Services, including its duties and obligations, expressed and implied, contained herein. Contractor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California.

City expressly relies upon Contractor’s representations regarding its skills and knowledge.

Agreement with *insert contractor’s name Page 3 of 47

B. Contractor warrants that all employees and subcontractor, if any, shall have sufficient skill and experience to perform the Services assigned to them.

C. Contractor shall comply with all applicable federal, state and local laws in the performance of the Services; including but not limited to those of the Occupational Safety and Health Administration (OSHA) and the California Department of Industrial Relations and State Division of Industrial Safety and the professional standard of care. 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.

D. Contractor represents and warrants to the City that it has, shall obtain, and shall keep in full force in effect during the Term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Contractor to practice its profession and to perform Services.

6. COMPENSATION AND PAYMENT

In consideration for Contractor’s complete performance of Services, City shall pay Contractor for all Services rendered and material provided by Contractor in accordance with Exhibit B, entitled “SCHEDULE OF FEES AND PAYMENT PROVISIONS.” The maximum compensation of this Agreement is *spell out dollar amount ($*insert numerical dollar amount), subject to budget appropriations, which includes all payments that may be authorized for Services and for expenses, supplies, materials and equipment required to perform the Services including any taxes. All Services performed or supplies, materials and equipment provided in excess of the maximum compensation shall be at Contractor’s expense.

Contractor shall not be entitled to any payment above the maximum compensation under any circumstance.

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. Termination for Default. For purposes of this Section 7.B., the word "Default" shall mean the failure of Contractor to perform any of Contractor's duties or obligations or the breach by Contractor of any of the terms and conditions set forth in this Agreement. In addition, Contractor shall be deemed to be in Default upon Contractor (i) applying for, consenting to, or suffering of, the appointment of a receiver, trustee or liquidator for all or a substantial portion of its assets; (ii) making a general assignment for the

Agreement with *insert contractor’s name Page 4 of 47 benefit of creditors; (iii) being adjudged bankrupt; (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization or insolvency law (unless in the case of an involuntary petition, the same is dismissed within thirty (30) days of such filing); or (v) suffering or permitting to continue unstayed and in effect for fifteen (15) consecutive days any attachment, levy, execution or seizure of all or a substantial portion of Contractor's assets or of Contractor's interests hereunder. In the event of any Default by Contractor, 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.

D. In the event of termination under sections 7.A. or 7.B., Contractor shall have no further rights hereunder

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.

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

A. "Confidential Information” means, with respect to a Party hereto, all information or material which either (1) is marked or identified as

Agreement with *insert contractor’s name Page 5 of 47

“Confidential,” “Restricted,” or “Proprietary Information” or other similar marking or identification, or (2) the other Party knew, as recipient, or under the circumstances, should have known, was considered confidential or proprietary by the Disclosing Party (as defined below), except that this Agreement, Contractor pricing, and Contractor proposals incorporated into this Agreement shall not be deemed Confidential Information. Confidential Information shall consist of all information, whether in written, oral, electronic, or other form, furnished in connection with this Agreement by the Disclosing Party or its Representatives (“Representative” is defined as any elected and appointed officials, affiliate, director, officer, employee, agent, advisor or Contractor of a Party or any of its subsidiaries or affiliates) to the Receiving Party (as defined below) or to its Representatives, and specifically includes but is not limited to the City’s individually identifiable customer information, and the City’s customer usage data and financial data.

B. Contractor and the City shall each hold the other’s Confidential Information in confidence. Neither Party shall make the other's Confidential Information available in any form to any third party or use the other's Confidential Information for any purpose other than as specified in this Agreement. The Party providing Confidential Information (“Disclosing Party”) to the other Party (“Receiving Party”) shall remain the sole owner of such information.

Except as provided elsewhere within this Agreement, nothing contained in this Agreement shall be construed as granting or conferring any right or license in any Confidential Information or in any patents, copyrights, software or other technology, either expressly or by implication to the Receiving Party, or to its Representatives or to others. The term Confidential Information shall not include any of the following: (1) information already in possession of, or already known to, the Receiving Party as of the Effective Date without an obligation of confidentiality; (2) information in the public domain at the time of the disclosure, or which, after such disclosure, enters into the public domain through no breach of this Agreement by the Receiving Party or its Representative(s); (3) information lawfully furnished or disclosed to the Receiving Party by a non-party to this Agreement without any obligation of confidentiality and through no breach of this Agreement by the Receiving Party or its Representative(s); (4) information independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party; (5) information authorized in writing by the Disclosing Party to be released from the confidentiality obligations herein; or (6) this Agreement and Contractor’s proposals and Work Authorizations or Purchase Orders.

C. By virtue of this Agreement, each Party hereto may disclose to the other Party information that is Confidential Information. This Agreement does not diminish, revoke or supersede any existing confidentiality, non-disclosure or similar agreement between the Parties that does not pertain to the subject matter of this Agreement. However, any Confidential Information, Agreement with *insert contractor’s name Page 6 of 47 whether or not previously disclosed, that pertains to the subject matter of this Agreement shall be governed by the terms of this Section 11 which shall supersede any such previous agreement with respect to such Confidential Information and any Confidential Information relating to the subject matter of this Agreement that was exchanged under such previous agreement shall be treated as though it was exchanged under this Agreement as of the date of such exchange.

D. The Receiving Party will treat all Confidential Information of the Disclosing Party, no matter written, electronic, or oral, as confidential and proprietary, and the Receiving Party shall only use such information in furtherance of this Agreement. As such, the Receiving Party shall hold in confidence the Confidential Information of the Disclosing Party and ensure that such Confidential Information is not disclosed to any other person or entity, except as expressly permitted by this Agreement or as authorized in writing by the Disclosing Party. The Receiving Party shall not disclose Confidential Information of the Disclosing Party received under this Agreement to any person other than its Representatives who require knowledge of such Confidential Information in furtherance of this Agreement. The Receiving Party shall inform its Representatives of the confidential nature of the Confidential Information of the Disclosing Party and advise such Representatives of the limitations on the use and disclosure and prohibition on making copies or summaries of such Confidential Information. The Receiving Party shall be responsible for any breach of this Agreement by its Representatives. Neither Party shall use the Confidential Information of the other Party for any commercial purpose.

E. If the Receiving Party becomes legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand, or similar process) to disclose any Confidential Information of the Disclosing Party or is requested Confidential Information pursuant to the California Public Records Act or similar law, the Receiving Party will provide the Disclosing Party with written notice of such an occurrence (if so permitted) as soon as possible. Thereafter, at its sole costs and expense, the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If the disclosing Party (i) waives compliance, (ii) fails to respond to the Receiving Party within five (5) business days, or (iii) after providing the notice and assistance required under this Section, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose. So long as it is consistent with applicable law, the Receiving Party will not oppose action by, and the Receiving Party will cooperate with, the Disclosing Party, at the Disclosing Party’s sole cost and expense, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information. If the Disclosing Party fails to

Agreement with *insert contractor’s name Page 7 of 47 obtain such protective order or other remedy, or if the Disclosing Party waives compliance with the requirements of the preceding sentence, the Receiving Party will disclose only that Confidential Information that it is legally required to disclose, and will exercise commercially reasonable efforts, at Disclosing Party’s expense, to obtain reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.

F. In the event the Receiving Party discloses, disseminates or releases any Confidential Information, except as expressly permitted by this Agreement, such disclosure, dissemination or release will be deemed a material breach of this Agreement and the Disclosing Party may demand prompt return of all Confidential Information previously provided to the Receiving Party. As soon as the Receiving Party becomes aware that it has made an unauthorized disclosure of Confidential Information, the Receiving Party shall take any and all necessary actions to recover the improperly disclosed Confidential Information and immediately notify Disclosing Party regarding the nature of the unauthorized disclosure and the corrective measures being taken. Each Party agrees that any breach of their confidentiality obligations could cause irreparable harm to the other Party, the amount of which would be extremely difficult to estimate. Accordingly, it is understood and agreed that monetary damages would not be a sufficient remedy for any material breach of this Agreement and that specific performance and injunctive relief in addition to monetary damages shall be appropriate remedies for any breach or any threat of such breach. The provisions of this Paragraph are in addition to any other legal rights or remedies the Disclosing Party may have.

G. Within two (2) weeks of the termination of this Agreement, Contractor will return to the City or destroy, to the extent permitted by law, any and all Confidential Information, including all originals, copies, translations, transcriptions or any other form of material, without retaining any copy or duplicate thereof; provided that Contractor may retain Confidential Information contained on backup media created in the ordinary course of business provided further that there is no effort to access such Confidential Information and Contractor’s confidential obligations with respect to such information shall continue so long as such information is retained.

Contractor shall certify in writing the destruction of the Confidential Information. The City may perform an audit of Contractor’s records to confirm the return or destruction of the Confidential Information. The City shall have this audit right for two (2) years after the termination of this Agreement.

H. Notwithstanding the termination of this Agreement, this Confidentiality Section shall survive the expiration or earlier termination of this Agreement.

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12. OWNERSHIP OF MATERIAL

A. City shall furnish to Contractor such documents and materials as may be relevant and pertinent to the provision of Services hereunder as City may possess or acquire.

B. All documents and materials furnished by City to Contractor, pursuant to Section 12.A., shall remain the property of City and shall be returned to City upon termination of this Agreement, for any reason. All documents or material prepared or caused to be prepared by Contractor, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall be considered works made for hire and shall become the exclusive property of the City, and City shall have the sole right to use such documents and materials without restriction or limitation on their use in City’s discretion without further compensation to Contractor or any other party. Contractor shall, at Contractor’s sole cost and expense, provide such documents and material to City upon written request.

C. Documents and material prepared by Contractor, pursuant to this Agreement, are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Contractor will be at City’s sole risk and without liability to Contractor. Further, any and all liability arising out of changes made to Contractor’s deliverables under this Agreement by City or persons other than Contractor, is waived against Contractor and City assumes full responsibility for such changes unless City has given Contractor prior notice and has received from Contractor written consent for such change.

13. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR

A. City, through its authorized employees, representatives or agents shall have the right during the Term and for four (4) years from the date of final payment for Services or goods provided under this Agreement (“Audit Period”), to audit the books and records of Contractor for the purpose of verifying any and all Contractor invoices and charges.

B. Contractor shall keep records and invoices in connection with the Services for the length of the Audit Period. 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.

C. Contractor shall use recognized accounting methods in preparing reports and invoices submitted to the City in connection with the Services. City reserves the right to designate its own employee representative(s) or its contracted representative(s) with a certified public accounting firm who shall have the right to audit Contractor's accounting procedures and internal

Agreement with *insert contractor’s name Page 9 of 47 controls of Contractor's financial systems and to examine any cost, revenue, payment, claim, other records or supporting documentation resulting from any items set forth in this Agreement. If Contractor fails to provide supporting documentation satisfactory to City for costs charged, then Contractor agrees to reimburse City for those costs. Any such audit(s) shall be undertaken by City or its representative(s) at reasonable times and in conformance with generally accepted auditing standards. Contractor agrees to fully cooperate with any such audit(s).

D. Contractor will be notified in writing of any exception taken as a result of an audit. Any adjustments and/or payments which must be made as a result of any such audit or inspection of Contractor’s invoices and/or records shall be made within thirty (30) days from presentation of City’s findings to Contractor. If Contractor fails to make such payment, Contractor agrees to pay interest, accruing monthly, at a rate of ten percent (10%) per annum unless another section of this Agreement specifies a higher rate of interest, then the higher rate will prevail. Interest will be computed from the date of written notification of exception(s) to the date Contractor reimburses City for any exception(s). If an audit inspection or examination in accordance with this Section discloses overcharges (of any nature) by Contractor to City in excess of one percent (1%) of the value of that portion of the Agreement that was audited, the actual cost of City's audit shall be reimbursed to City by Contractor.

E. 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 the Services.

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 claim, injury, liability, loss, cost, and/or expense or damage, including all costs and 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 Services – and shall expressly include passive or active negligence by City connected with the Services. However, the obligation to indemnify shall not apply if such liability is ultimately adjudicated to have arisen through the sole active negligence or sole willful misconduct of City; the obligation to defend is not similarly limited.

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B. Contractor’s obligation to protect, defend, indemnify, and hold harmless in full City and City’s employees, shall specifically extend to 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 with Contractor’s 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, 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 svpcontracts@santaclaraca.gov and manager@santaclaraca.gov

And to Contractor addressed as follows:

*Name of Contractor *Address of Contractor and by e-mail at *_______________@XXX mailto:svpcontracts@santaclaraca.gov mailto:manager@santaclaraca.gov

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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 “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 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.

http://santaclaraca.gov/home/showdocument?id=58299

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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. 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 Section 16000 et seq. of Title 8 of the California Code of Regulations, 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.

27. HAZARDOUS MATERIALS

A. For purposes of this Section, the term “Hazardous Materials” means any substance, material, or waste which is, or becomes, regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (a) defined as a “hazardous waste,” “extremely hazardous waste,” or “restricted hazardous waste” under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (b) defined as a “hazardous substance” under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (c) defined as a “hazardous material,” “hazardous substance,” or “hazardous waste” under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (d) defined as a “hazardous substance” under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (e) petroleum, (f) friable asbestos, (g) polychlorinated

Agreement with *insert contractor’s name Page 13 of 47 byphenyls, (h) methyltertiary butyl ether, (i) listed under Article 9 or defined as “hazardous” or “extremely hazardous” pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (l) designated as “hazardous substances” pursuant to Section 311 of the Clean Water Act (33 U.S.C. §1317), (m) defined as a “hazardous waste” pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq.(42 U.S.C. §6903), (n) defined as “hazardous substances” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et seq., or (o) defined as a “hazardous substance” under California Health and Safety Code § 33459.

B. Contractor shall comply with the requirements of applicable laws and related regulations and with all similar laws and regulations in the performance of the Services and shall notify City immediately in the event of any discharge or discovery of any Hazardous Materials during the performance of the Services. Contractor shall promptly forward to City copies of all orders, notices, permits, applications or other communications and reports forwarded to or received by Contractor in connection with any discharge of any Hazardous Material in the performance of the Services or any other matters relating to applicable laws or any similar laws or regulations.

C. Notwithstanding any indemnification provisions elsewhere in this Agreement, Contractor agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents from and against any claim, injury, liability, loss, cost, and/or expense or damage, including all costs and 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, discharge of Hazardous Materials, or violation of applicable laws, in the performance of the Services. The rights and obligations set forth under this Section shall survive the termination of this Agreement.

Agreement with *insert contractor’s name Page 14 of 47

The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives.

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”

*INSERT CONTRACTOR’S NAME

*choose one: a[n] __________ (insert State) corporation/partnership/individual

Dated:

By (Signature):

Name:

Title:

Principal Place of Business Address:

Email Address:

Telephone: ( )

“CONTRACTOR”

RFB 25-26-03 HRSGs Cleaning Services, Attachment A – Scope of Services Page 15 of 47

RFB 25-26-03

ATTACHMENT A – SCOPE OF SERVICES

HEAT RECOVERY STEAM GENERATORS (HRSGs) CLEANING SERVICES

TABLE OF CONTENTS

SECTION 1. GENERAL

SECTION 2. SERVICES TO BE PERFORMED

SECTION 3. SPECIFIC REQUIREMENTS

SECTION 4. REPORTS

SECTION 5. COMPLETION OF SERVICES

SECTION 6. HOURS AND DAYS OF SERVICE

SECTION 7. SCHEDULING AND PLANNING

SECTION 8. WORK AUTHORIZATION PROCESS

SECTION 9. WORKMANSHIP

SECTION 10. PERMITS AND LICENSES

SECTION 11. WARRANTY

SECTION 12. CITY FURNISHED MATERIALS

SECTION 13. WORK AREA

SECTION 14. CONTRACTOR’S EQUIPMENT, TOOLS, AND MATERIALS

SECTION 15. DISPOSAL OF WASTE AND SCRAPS

SECTION 16. SAFETY

SECTION 17. INJURY/PROPERTY DAMAGE

SECTION 18. CONTRACTOR PERSONNEL

RFB 25-26-03 HRSGs Cleaning Services, Attachment A – Scope of Services Page 16 of 47

SECTION 1. GENERAL

1.1 The purpose of this Scope of Services is to define the requirements and deliverables for the cleaning of the Heat Recovery Steam Generators (HRSGs)

Cleaning “Services” to restore optimal thermal efficiency, reduce backpressure, and extend equipment life.

1.2 Contractor shall provide all necessary supervision, labor, and services, plus all tools, equipment, materials, and supplies required for HRSGs Cleaning

“Services” to remove deposits from the outer surface of two horizontal gas flow

ATS Express HRSGs and other heat transfer equipment in support of Silicon

Valley Power (SVP), the City’s Electric Utility, and other City departments, on an as needed basis.

1.2 Contractor shall perform the Services in accordance with generally accepted industry best practices and the original equipment manufacturer (OEM) specifications. Any deviations must be approved in writing by City.

1.3 Contractor will primarily perform Services in City of Santa Clara limits.

1.4 To the extent not inconsistent with this Agreement, the City’s RFB 25-26-03 (including subsequent updates) and Contractor’s proposal response dated [Date], 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 RFB 25-26-03 or Contractor’s proposal, the Agreement and its Exhibits shall govern.

SECTION 2. SERVICES TO BE PERFORMED

2.1 Contractor will provide the following Services to the City on an as-needed basis pursuant to the Work Authorization Process described in Section 8 and as further described pursuant to individual Work Authorizations or Purchase Orders

2.2 Place of Performance:

Silicon Valley Power, Donald Van Raesfeld (DVR)

850 Duane Ave Santa Clara, CA 95054

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2.3 Deliverables

2.3.1 Cleaning Plan and Safety Procedures

2.3.2 Pre- and Post-Cleaning Inspection Reports

2.3.3 Final Cleaning Report with Documentation

SECTION 3. SPECIFIC REQUIREMENTS

3.1 Pre-Cleaning Activities

3.1.1 Conduct a site visit and pre-cleaning inspection of the HRSGs.

3.1.2 Review historical performance data and fouling trends.

3.1.3 Identify access points, safety hazards, and logistical constrains.

3.1.4 Submit a cleaning plan including method, schedule, and safety protocols.

3.2 Cleaning Methodology

3.2.1 Contractor shall perform cleaning used the high-pressure Water Jetting method, as approved by the City.

3.2.1.1 Cleaning method must be non=destructive to the HRSG

components.

3.2.1.2 Minimize downtime and environment impact.

3.2.1.3 Comply with OEM recommendations and industry best

practices.

3.3 Execution of Cleaning

3.3.1 Contractor shall be responsible for providing and mobilizing the following, as required for the Services:

3.3.1.1 All necessary labor, supervision, tools, equipment, and materials required to perform the Services in accordance with the terms of this Agreement;

3.3.1.2 Transportation and logistics related to the movement of personnel, equipment, and materials to and from the work site(s);

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3.3.1.3 All applicable permits, licenses, certifications, and approvals required by local, state, or federal authorities to lawfully perform the Services;

3.3.1.4 Compliance with all health, safety, and environmental regulations and the implementation of appropriate safety procedures and protective measures at all times during the execution of the Services;

3.3.1.5 Any documentation, reports, or deliverables specified in the scope of services or otherwise required by the City for project monitoring, completion, or compliance purposes;

3.3.1.6 Any documentation, reports, or deliverables specified in the scope of services or otherwise required by the City for project monitoring, completion, or compliance purposes;

3.3.1.7 Contractor shall perform thorough cleaning of all internal components of the HRSGs, including but not limited to the catalysts. Cleaning shall be accomplished via multiple pressure waves, providing a minimum of 100 individual pressure waves per module from each side or face, or as deemed prudent based on the module size. The cleaning process shall ensure the effective removal of dust, debris, fouling, and any other foreign materials that may impair HRSG performance. All services shall be performed in accordance with OEM specifications, industry best practices, and in a manner that prevents damage to any internal components.

3.3.1.8 Contractor shall ensure that noise levels generated during the performance of services do not exceed 90 decibels (dB) when measured at a distance of 50 feet from the HRSGs. Contractor shall take all necessary measures, including the use of noise-reducing equipment or sound barriers, to maintain compliance with this requirement and to minimize disruption to site personnel and surrounding areas.

3.3.1.9 The cleaning method employed by the Contractor must be capable of providing 360-degree cleaning coverage of the finned tube modules within the HRSGs. The method shall ensure that all surfaces of each tube, including areas between closely spaced fins, are effectively cleaned to restore optimal thermal performance. Cleaning shall be performed without causing damage to the fins or tube surfaces and in accordance with OEM recommendations and industry best practices.

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3.3.1.10 Contractor shall ensure that no deformation, bending, or displacement of high-pressure tubes is permitted during any activity undertaken to reach or access deep into a tube bundle. All access methods and tools used must preserve the structural integrity and alignment of the high-pressure tubing.

Any damage or deformation resulting from non-compliant access methods shall be the sole responsibility of the Contractor and subject to immediate corrective action at no cost to the City.

3.3.1.11 All debris cleaned from the tube surfaces shall be removed from the HRSG and placed in drums for later profiling as hazardous waste. Vanadium may be present in the debris.

3.3.1.12 Deposits to be removed may include dirt, iron oxides, and other residues.

3.3.1.13 All work must be completed during the scheduled annual Spring and/or Fall outages.

3.3.1.14 Contractor shall provide all parts, materials, tools, equipment, and consumables necessary to complete all tasks.

3.3.1.15 As requested by the City, expedited procurement and

transportation of materials, parts, and equipment.

3.3.1.16 Supervision and administrative support

3.3.1.17 Program and project management services

3.3.1.18 Scheduling and logistical planning

3.3.2 On-site miscellaneous services (portable restroom facilities, rental equipment such as light standards, generators, fueling services, etc.

3.4 Post-Cleaning Activities

3.4.1 Contract shall conduct post-cleaning inspection with client representatives.

3.4.2 Provide a detailed cleaning report including:

3.4.2.1 Before and after photos

3.4.2.2 Descriptions of fouling and cleaning effectiveness

3.4.2.3 Recommendations for future maintenance

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3.4.3 Demobilize equipment and restore the site to original condition.

3.5 Schedule

3.5.1 Schedule of Milestones

The following schedule outlines the deliverables and/or milestones:

Annual Spring and Fall Outage Periods TBD HRSG Cleaning Start Date TBD HRSG Cleaning Finish Date TBD HRSG Inspection and Close Out TBD

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 provide a report to the City, which shall include the following information:

4.1.1.1 Type of service such as preventative maintenance, inspection, repair, testing

4.1.1.2 Summary of existing conditions

4.1.1.3 Description of noted issues/deficiencies (including photos) and recommended corrective action

4.1.1.4 Description of service/repairs performed

4.1.1.5 Summary list of spare parts and materials inventory

including serial number of all parts removed and installed

4.1.1.6 Other information that may be requested by the City.

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 the nature and scope of the Services, Contractor may be required to provide status updates daily, weekly, or monthly at the direction of City.

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4.3 Contractor shall provide all reports in electronic format and hard copy if requested by the City.

SECTION 5. COMPLETION OF SERVICES

All Services shall be completed in a timely, efficient manner so as to ensure the site, equipment, and/or system is operational as soon as possible and as provided in the applicable Work Authorization or Purchase Order as defined in Section 8.

SECTION 6. HOURS AND DAYS OF SERVICE

Contractor will generally perform the required Services during regular business hours, Monday through Friday. City will, at its discretion, allow access during non-business hours when required.

SECTION 7. SCHEDULING AND PLANNING

7.1 Contractor will coordinate with City to schedule outages associated with performance of Services. When requested by City, Contractor shall be able to plan, staff and execute scheduled maintenance and inspections with thirty

(30) days advance notice.

7.2 Contractor may be required to work shifts longer than twelve (12) hours per day or alternative shifts including night shifts. Work hours may be limited by

City noise restrictions.

SECTION 8. WORK AUTHORIZATION PROCESS

All Services under this Agreement must be approved by the City prior to commencement of work, and must be authorized through a valid Purchase Order issued by the City. Contractor shall not perform any Services without such authorization. No Purchase Order or cumulative Purchase Order shall exceed the maximum compensation of the Agreement. All issued Purchase Order shall be incorporated the Agreement. This section may be amended in writing by the City.

SECTION 9. WORKMANSHIP

9.1 Contractor shall perform all Services in a professional and environmentally responsible manner that meets or exceeds industry and professional standards of performance. All Services shall be performed by a Contractor employee skilled in the particular task to which they are assigned.

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9.2 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 in writing including as part of a Work Authorization or Purchase Order, Contractor may use rebuilt parts or new parts from another manufacturer if such alternate parts and/or components are approved by the original manufacturer and/or City for use in the specific piece of equipment of the system.

9.3 Poor or inferior workmanship, as determined at the sole discretion of the City, shall be removed and replaced to conform to the quality standards of the industry, or otherwise corrected to the City’s satisfaction, at Contractor’s sole expense.

9.4 City reserves the right to inspect any Services performed by Contractor and its subcontractors. If, upon inspection, the City determines that there is any unsatisfactory or defective Services, the Contractor must correct the Services at no additional cost to the City.

SECTION 10. PERMITS AND LICENSES

10.1 Contractor shall obtain, maintain, and pay for all licenses, permits, and certificates required by any statute, ordinance, rule, or regulation in order to perform the Services.

10.2 Contractor is responsible for working with the City of Santa Clara’s Fire

Department to obtain permits including those related to the proper storage and handling of explosives.

10.3 Change Orders/Amendments to the Agreement will not be granted to extend the period of performance to obtain permits.

SECTION 11. WARRANTY

11.1 Services. For each Work Authorization and Purchase Order, all Services shall carry a warranty of a minimum of twelve (12) months from the date of completion of Services set forth in each Work Authorization or Purchase

Order. Contractor shall perform all warranty-related work at no additional cost to the City.

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11.2 Parts. All parts provided by Contractor shall include a warranty of no less than the greater of either twelve (12) months or the OEM warranty period. In the event the OEM warranty is less than twelve (12) months, Contractor shall extend the OEM warranty to a minimum of twelve (12) months. All parts fabricated by Contractor shall include a warranty of twelve (12) months.

Contractor shall provide the City with a copy of any manufacturer’s warranty or extended manufacturer’s warranty.

11.3 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.

SECTION 12. 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.

SECTION 13. WORK AREA

13.1 Contractor shall ensure that work area, where Services or other related work are being performed, is free from all surplus materials, waste materials, debris, spills, dirt and rubbish caused by Contractor’s performance of

Services. Upon completion of the scheduled Services or at the end of each day, whichever comes first, Contractor shall ensure the work area is in a clean safe condition.