A-Sample_Agreement.docx

AGREEMENT

[WITH _______ - INSERT VENDOR’S NAME]

FOR AGGREGATE MATERIALS AND ROAD MAINTENANCE MATERIALS

(IFB NO. FN-0087)

THIS AGREEMENT (“Agreement” or “Contract”), made and entered into on ___ ______________, 20__, (“Effective Date”) by and between the CITY OF SANTA CRUZ, a municipal corporation, hereinafter called “City,” and ______________(insert full corporate entity name or dba; **check CA Secretary of State website if corp is in good standing), hereinafter called “Vendor” or “Contractor”. City and Vendor are individually referred to as a “Party” or collectively, as the “Parties”.

The Parties mutually agree as follows:

SECTION I: GOODS/SERVICES

A. That for and in consideration of the City’s Invitation for Bid and Vendor’s response thereto, the Vendor hereby covenants and agrees to furnish any and all required goods further described below, and will bear any and all other expense necessary or incidental to the performance of certain work hereinafter specified for the Aggregate Materials and Road Maintenance Materials Project (IFB No. FN-0087) (the “Project”) in strict conformity and compliance with the Contract Documents, as hereinafter defined, and in accordance with this Agreement.

B. Vendor will furnish all labor, material, equipment and services required to comply with the Contract Documents.

C. Vendor agrees that it may not begin providing the goods and services until the City approves a Purchase Order for such.

SECTION II: CONTRACT DOCUMENTS

A. Incorporation of Documents.

It is expressly agreed and understood by City and Vendor that the following documents are hereby incorporated and made a part of this Agreement (hereinafter the “Contract Documents”):

1. This Agreement with Exhibit A: Scope of Work and Fee Schedule; and

2. City of Santa Cruz Standard Terms and Conditions of Purchase, except as amended herein by this Agreement in Section V – attached hereto as Exhibit B; and

3. City’s Invitation for Bids (“IFB”) Packet, incorporated herein by reference as Exhibit C; and

4. Vendor’s Bid, incorporated herein by reference as Exhibit D.

B. Priority of Contract Documents.

The Parties to this Agreement do hereby expressly acknowledge that they have read, understand, and promise to comply with each and every provision of Contract Documents. In the event inconsistencies, conflicts, or ambiguities between and among the Contract Documents are discovered, the Parties shall attempt to resolve any ambiguity, conflict, or inconsistency informally, recognizing that the terms of the Contract Documents shall take precedence in the order in which they are listed above. The terms of this Agreement shall take priority and control in the case of any conflicts with any of the exhibits attached hereto.

SECTION III: TERM OF AGREEMENT

The term of the Agreement will be from the effective date for __ months/____ year, terminating on _______________20_.

Vendor shall begin work as specified in a written authorization (e.g. Notice to Proceed) to perform services. The written authorization to perform work shall not be issued until after this Agreement has been approved and authorized by the City.

SECTION V: AFFIRMATIVE ACTION

It is agreed by the parties hereto that the acceptance of the Vendor’s performance will be made only by an affirmative action of the City of Santa Cruz City Council in session, evidenced by resolution, and upon the filing by the Vendor of a Release of all Claims of every nature on account of work done under this Agreement, together with an affidavit that all claims have been fully paid. The acceptance by the Vendor of said final payment shall constitute a waiver of all claims against the City arising out of or in connection with this Agreement.

SECTION V: AMENDMENTS TO CITY’S STANDARD TERMS AND CONDITIONS

The City of Santa Cruz Standard Terms and Conditions of Purchase (“City’s Standard Terms”), which is attached hereto as Exhibit A, as amended below, apply to this Agreement:

1. Section 2 of the City’s Standard Terms is deleted and replaced with Section 4.11 “Delivery, Inspection, and Acceptance of Goods” in the IFB.

2. Section 3 of the City’s Standard Terms is deleted and replaced with the following:

“3. Payment:

The City agrees to pay Vendor the rates specified in Vendor’s Bid attached hereto as Exhibit D and in the manner and at the times set forth in the Contract Documents. Vendor shall not undertake any work beyond the scope of work set forth therein unless such additional work is approved in advance and in writing by City in the form of a change order.

All invoices shall contain correct bid or contract pricing, the applicable purchase order number, and the name of the City employee making the purchase. Invoices shall be sent to the dept. making the purchase. Vendor shall submit invoices to the City within 60 days of delivery of goods or provision of service. Invoices with incorrect pricing will be returned to the Vendor for correction. The City will pay approximately 30 days after acceptance of goods or services and receipt of a correct and undisputed invoice, whichever occurs last.

3. Section 4 of the City’s Standard Terms is deleted and replaced with Section 4.16 “Warranty” in the IFB.

4. Section 6 of the City’s Standard Terms is deleted and replaced with the following:

“6. Indemnification: To the fullest extent permitted by law, Vendor shall defend, indemnify, and hold harmless the City and its respective officials, officers, directors, partners, employees, and authorized agents (“Indemnitees”) from and against any and all claims, suits, actions, judgments, demands, liabilities, losses, damages, expenses, including attorneys’ fees and costs of litigation (collectively, “Losses”), arising from personal or bodily injuries, death, property damage, or otherwise in any way related to, connected with, or resulting from the obligations or performance of the Work under this Agreement by Vendor, subcontractors, and their respective officers, directors, employees, agents, or other third parties directly or indirectly employed by or under the authority or control of Vendor or subcontractors. This provision shall not be deemed to require the Vendor to indemnify or hold harmless an Indemnitee for any Losses proximately caused by the sole or active negligence or willful misconduct of the Indemnitee.

Vendor acknowledges and agrees that Vendor’s obligation to defend the City and the other Indemnitees arises at the time such Losses is tendered to Vendor by the Indemnitees and continues at all times until finally resolved, and/or decided by an adjudicatory body or a court of competent jurisdiction. This provision shall survive the termination of the Agreement or the completion of the Work.

This indemnification clause supersedes any other indemnification clauses contained in any other Contract Documents.

5. Section 8 of the City’s Standard Terms is deleted and replaced with the following:

“8. Insurance: Prior to the beginning of and throughout the duration of this Agreement, Vendor will maintain insurance in conformance with the requirements set forth herein. Vendor will insure the City against claims for injuries to persons or damages to property which may arise from or in connection with the goods, or the work performed hereunder and the results of that work by Vendor, Vendor’s agents, representatives, employees or subcontractors.

a. Standard Certificate Requirements The City will be issued a Certificate of Insurance (a Memorandum of Understanding will not be accepted) with the following minimum requirements:

b. Minimum Scope and Limits of Insurance:

The Vendor acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. The City will be entitled to coverage for the highest limits maintained by the Vendor. Coverage will be at least as broad as:

· Commercial General Liability (CGL): $2,000,000 per occurrence $2,000,000 aggregate Proof of coverage for up to $2 Million per occurrence/aggregate including products and completed operations, property damage, bodily injury, personal injury and advertising injury will be provided on Insurance Services Office (ISO) Form CG 00 01 covering CGL.

· Automobile Liability: $1,000,000 Proof of coverage for $1 Million will be provided on ISO Form Number CA 00 01 covering any auto (Code 1), or if Vendor has no owned autos, hired, (Code 8) and non-owned autos (Code 9), per accident for bodily injury and property damage.

· Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance: $1,000,000 per accident for bodily injury or disease. Must include a waiver of subrogation in favor of the City for all work performed by the Vendor and its employees in favor of the City for all work performed by the Vendor and their employees.

· [OPTIONAL: Other types of insurance; Check with Risk Manager]

c. Other Insurance Provisions The insurance policies are to comply with the following provisions:

· Additional Insured Status The City, its officers, officials, and employees are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Vendor including materials, parts, or equipment furnished in connection with such work or operations, products and completed operations. General liability coverage will be provided in the form of an endorsement to the Vendor’s insurance at least as broad as ISO Form CG 20 10 11 85, or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 (if a later edition is used).

· Primary Coverage For any claims related to this Agreement, the Vendor’s and all subcontractor’s insurance coverage will be primary and non-contributory as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers will be excess of the Vendor’s and all subcontractor’s insurance and will not contribute with it.

· Notice of Cancellation Each insurance policy required above shall state that the coverage shall not be canceled, except with notice to the City.

· Waiver of Subrogation Vendor hereby grants to the City a waiver of any right to subrogation, except as otherwise not applicable, which any insurer of said Vendor may acquire against the City by virtue of the payment of any loss, including attorneys’ fees, under such insurance. Vendor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.

· Self-Insured Retentions/Acceptability of Insurers Self-insured retentions must be declared to and approved by the City. City may require Vendor to purchase coverage with a lower retention or provide proof of ability to pay losses and related expenses. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.

· Verification of Coverage Vendor will furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning will not waive the Vendor’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

· Subcontractors Vendor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Vendor shall ensure that City, its officers, officials, employees, and volunteers are additional insureds on insurance required from subcontractors.

6. Section 15 of the City’s Standard Terms is deleted and replaced with the following:

“15. Termination of Contract:

The City may terminate this Agreement for any reason by providing written notice to the Vendor not less than 30 calendar days prior to an effective termination date.

The Vendor may terminate the Agreement for cause if the City fails to cure a material breach in performance (e.g. failure to pay) within 30 days from Vendor’s written notice of termination to the City which is not less than 90 calendar days prior to an effective termination date.

Upon notice of termination, the Vendor will immediately take action not to incur any additional obligations, costs or expenses, except as may be reasonably necessary to terminate its activities. The City’s only obligation to the Vendor will be just and equitable payment for materials and/or services authorized by, and received to the satisfaction of, the City up to and including the effective date of termination. In the event of Vendor’s failure to perform pursuant to the Contract Documents, the City reserves the right to obtain services elsewhere and Vendor will be liable for the difference between the prices set forth in the terminated Agreement and the actual cost to the City. In no event will the City be liable for any loss of profits on the resulting order or portion thereof so terminated. After the effective date of termination, Vendor will have no further claims against the City under the Contract Documents. Termination of the Agreement pursuant to this paragraph may not relieve the Vendor of any liability to City for damages sustained by City because of any breach of contract by Vendor, and City may withhold any payments to Vendor for the purpose of set-off until such time as the exact amount of damages due City from Vendor is determined. The rights and remedies provided in this section will not be exclusive and are in addition to any other rights and remedies provided by law or under the Contract Documents.”

7. Section 17 of the City’s Standard Terms is deleted and replaced with the following:

“17. Force Majeure: Neither party hereto shall be considered in default in the performance of its obligation hereunder to the extent that the performance of any such obligation is prevented or delayed by an act of God, natural disaster, pandemic, acts of terrorism, war, a strike, lockout or other labor difficulty, or other peril, which is beyond the reasonable control of the affected party and without the negligence of the respective Parties. Each party hereto shall give notice promptly to the other of the nature and extent of any Force Majeure claimed to delay, hinder or prevent performance of the services under this Agreement. Each Party will, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and will, upon the cessation of the cause, diligently pursue performance of its obligations in this Agreement. In the event either party is prevented or delayed in the performance of its respective obligation by reason of such Force Majeure, the only remedy is that there may be an equitable adjustment of the schedule based on City’s sole discretion.”

8. Section 19. Attorneys’ Fees of the City’s Standard Terms is deleted in its entirety.

SECTION VI: MISCELLANEOUS PROVISIONS

1. Compliance with Laws. All activities of Vendor, its employees, subcontractors and/or agents will be carried out in compliance with all applicable federal, state, and local laws and regulations.

2. Site Conditions and Safety. During the course of performing the scope of work under this Agreement, the security and safety of the work area/site, materials, and equipment will be Vendor’s sole responsibility. Vendor shall not unreasonably interfere with the use of the public right-of-way to the extent the public right-of-way is usable and accessible in part or in whole during the course of performing the work under this Agreement. Vendor shall provide all equipment, devices, signage, and personnel needed to ensure public safety at the work area/site and comply with applicable traffic safety requirements including the California Manual on Uniform Traffic Control Devices (MUTCD) standards. Vendor is responsible for supplying and using all safety equipment necessary to close or delineate traffic lanes to vehicle or pedestrian traffic. Lane closures, including parking lanes, will require notification to the City’s Traffic Management Division of the Transportation Department and posting of notices not less than 48 hours prior to closure. All waste, rubbish, other debris, and any excess excavated material shall be removed from the work site at the completion of the work, as applicable, in a manner that conforms to all applicable state, federal, and local laws and regulations. Vendor shall leave the City property and public right-of-way in a clean and orderly condition.

3. Dispute Resolution. The Parties agree to attempt in good faith to resolve through negotiation any dispute, claim or controversy arising out of or relating to this Agreement. Either party may initiate negotiations by providing written notice in letter form to the other party, setting forth the subject of the dispute and the relief requested. Promptly upon such notification, the Parties shall meet at a mutually agreeable time and place in order to exchange relevant information and perspective, and to attempt to resolve the dispute. In the event that no resolution is achieved, and if, but only if, the parties mutually agree, then prior to pursuing formal legal action, the parties shall make a good faith effort to resolve the dispute by non-binding mediation or negotiations between representatives with decision-making power, who, to the extent possible, shall not have had substantive involvement in the matters of the dispute. The Parties agree to attempt to resolve the dispute by complying with the claims process as set forth in Public Contract Code sections 9204(e), 20104-20104.6, but without waiving the requirements of the California Tort Claims Act, Gov’t Code section 800 et seq. unless otherwise agreed to by the Parties.

4. Vendor's Records. Vendor shall maintain accurate accounting records and other written documentation pertaining to the costs incurred relating to this Agreement for examination and audit by the City, State, or federal government, as applicable, in compliance with Gov. Code §8546.7 for a contract in excess of $10,000, or in compliance with other applicable federal laws (e.g. 48 CFR 31) or regulations for a period of three (3) years from: the date of the final City payment for Vendor’s goods/ or services, or from the date of final disposition of real property or equipment acquired with federal funds, or date of the termination of this Agreement, whichever is later. If Vendor engages a subcontractor to perform work related to this Agreement with a cost of $10,000 or more over a 12-month period, such subcontract shall contain these same requirements. This provision shall survive the termination of this Agreement.

5. Conflicts of Interest. Vendor acknowledges and agrees to comply with applicable provisions of conflict of interest laws and regulations, including the CA Political Reform Act (Gov’t. Code §§1090, 87100), Levine Act (Gov’t. Code §84308), and the City’s conflict of interest code, and make any necessary disclosures.

6. California Public Records Act. City is a public agency subject to the disclosure requirements of the California Public Records Act (“CPRA”). If Vendor’s proprietary information is contained in documents or information submitted to City, and Vendor claims that such information falls within one or more CPRA exemptions, Vendor must clearly mark such information “Confidential and Proprietary,” and identify the specific lines containing the information. In the event of a request for such information, City will make best efforts to provide notice to Vendor prior to such disclosure. If Vendor contends that any documents are exempt from the CPRA and wishes to prevent disclosure, it is required to obtain a protective order, injunctive relief, or other appropriate remedy from a court of law in Santa Cruz County before the City is required to respond to the CPRA request. If Vendor fails to obtain such remedy within the time the City is required to respond to the CPRA request, City may disclose the requested information without any liability. Vendor further agrees that it shall defend, indemnify and hold City harmless against any claim, action or litigation (including but not limited to all judgments, costs, and attorney’s fees) that may result from denial by City of a CPRA request for information arising from any representation, or any action (or inaction), by the Vendor.

8. Notices. If either Party shall desire or is required to give notice to the other such notice shall be given in writing, via email, and concurrently delivered by: (a) personal delivery, in which case notice is effective upon delivery; (b) overnight courier (i.e., Federal Express) with charges prepaid or charged to the sender’s account, in which case notice is effective when delivered; (c) priority U.S. Mail, in which case notice shall be deemed delivered on the second business day after the deposit thereof with the U.S. Postal Service. Notices shall be addressed to recipient as follows:

To CITY:

Purchasing Department Lilian Lane 1200 Pacific Ave., STE. 290 purchasing@santacruzca.gov (831)420-5080 To VENDOR:

Business Name Vendor Contact Name Address Email/Phone

Changes to the above information shall be given to the other party in writing ten (10) business days before the change is effective.

9. Complete Agreement. This Agreement, and its incorporated documents comprising the Contract Documents, contain the entire agreement between the Parties with respect to the matters addressed herein and shall supersede all prior or other agreements, oral and written declarations of intent and other legal arrangements (whether binding or non-binding) made by the Parties.

10. Severability. The unenforceability, invalidity or illegality of any provision(s) of this Agreement shall not render the other provisions unenforceable, invalid or illegal.

11. Waiver. Waiver by any party of any portion of this Agreement shall not constitute a waiver of the same or any other portion hereof.

12. Governing Law. This Agreement shall be governed by and interpreted in accordance with California law.

13. Contract Interpretation. Each party acknowledges that it has reviewed this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.

14. Counterparts. The Parties may execute this Agreement in two or more counterparts, which shall, in the aggregate, be deemed an original but all of which, together, shall constitute one and the same instrument. A scanned, electronic, facsimile or other copy of a party’s signature shall be accepted and valid as an original.

15. Warranty of Authority. The signatories to this Agreement warrant and represent that each is authorized to execute this Agreement and that their respective signatures serve to legally obligate their respective representatives, agents, successors and assigns to comply with the provisions of this Agreement.

[Signature page to follow]

IN WITNESS WHEREOF, this Agreement is executed by the on the day and year first hereinabove written.

Approved As To Form:

VENDOR

By: Date:

Printed: ___________________________ Title: __________________

By: Date:

Printed: ___________________________ Title: __________________ Signature Requirements for Business Entity:

a. Corporation – 2 officer signatures required (one from each group, unless person signing holds officer positions in both Group 1 and 2):

Group 1: Chief Executive Officer, Chairman of the Board, President, or Vice President Group 2: Secretary, Assistant Secretary, Chief Financial Officer, Treasurer, Assistant Treasurer

b. Partnership - Signature of General Partner, or signature of partner who is authorized to execute documents per the Certificate of Partnership. If authorized partner is a corporation, follow Corporation signature requirement.

c. LLC- For a member-managed LLC, signature of any member. For a manager-managed LLC, signature of the manager. If the LLC has corporate officer designations, follow Corporation signature requirement.

CITY OF SANTA CRUZ

By: Date:

AGREEMENT Page 3

EXHIBIT A

SCOPE OF WORK AND FEE SCHEDULE

SCOPE OF WORK

It is the intent of the City of Santa Cruz to seek the services of a contractor(s) to supply aggregate materials and road maintenance materials for various projects throughout the City. On some occasions, the City Departments may need to pick-up the material on an as-needed basis from the contractor. Price all aggregate materials as a “Picked-Up” price and a “Delivered” price. Price must include cost per ton, unless specified otherwise, with fuel charges added. Include also, the minimum delivery amount and short load charge.

Delivered Road Maintenance Materials could be delivered to any location within Santa Cruz County and should include a cost per hour.

Delivered aggregate pricing must include delivery to:

Location 1: DeLavega Golf Course 401 Upper Park Road Santa Cruz, CA 95065 Location 2: City of Santa Cruz Corporation Yard 1125 River Street Santa Cruz, CA 95060

I. Task 1- The scope of work includes sourcing and delivery of aggregate materials and road maintenance materials. Price is all inclusive, including delivery (where specified) and tax.

II. Task 2 - All materials, unless mutually agreed otherwise, shall conform to Standard Specifications For Public Works Construction (Greenbook, 2024) III. Aggregate Materials must meet the following detailed specifications:

3/4" Class 2 Base-Virgin 3/4" Class 2 Base-Recycled Subbase (3/4" Class 4 Base) 1-1/2" Class 2 Base Concrete Mix 1-1/2" x 3/4" Unwashed Drain Rock 1-1/2' x 3/4" Washed Drain Rock 3/4" x 1/2" Washed Drain Rock 1/2"x3/8" Washed Drain Rock 1/4"x #10 Crushed3/8"x #4 Crushed Gabion Rock (3"x5' or 5"x10") Permeable CL 1 Type A Other Permeable Materials (1B,2,3) Washed Sand Fill Sand Marina Fill Sand Cyclone Sand (Very Fine) Engineered Fill (6" Minus) Select Decomposed Granite (Fill) Coarse Bank Run Fine Bank Run Track Fines 1/4" Screenings Granite Fines Top Dressing Sand Bunker Sand 1-1/2"x3/4" Gold Aggregate 1/4"x #10 Gold Aggregate 3/8"x #4 Gold Aggregate 1/2"x 3/8" Gold Aggregate 3/4"x 1/2" Gold Aggregate Gold Path Base Gold Path Fines Gold Track Fines Gold Wall Rock (6" - 18") Gold Accent Boulders Slope/Shore Protection (Riprap) Common Brick Granite patch, 50 pound Fast Set Concrete Sack Sand Slurry 1/2" 6.48 Sack Mix 1/2" Pump Mix 3/8" 6 Sack Mix 3/4" 5.5 Sack Mix 3/4" 6 Sack Mix IV. Road Maintenance Materials must meet the following detailed specifications:

1/2" Asphalt (medium or coarse) 1/2" Asphalt (fine) 3/8" Asphalt (fine or medium) 3/4"Asphalt (fine, medium or coarse) SC250 (Cold Mix) Berm Mix Sand Mix RS1 Oil (100 gallons or more) RS1 Oil (50-99 gallons) RS1 Oil (49 gallons or less) SS1 Oil (50 gallons or more) SS1 Oil (49 gallons or less)

II. FEE SCHEDULE

Bid Sheet

EXHIBIT B

CITY OF SANTA CRUZ STANDARD TERMS AND CONDITIONS OF PURCHASE

CITY OF SANTA CRUZ TERMS AND CONDITIONS OF PURCHASE

http://www.cityofsantacruz.com/government/city-departments/finance-/purchasing-division/selling-to-the-city Revised 3/14/2022 Page 1

1. Contract: The following terms and conditions shall govern all purchases by the City unless other terms are specifically designated by the City to apply or the City and Vendor have entered into another written agreement. Any terms or conditions (including price and delivery dates) proposed by the Vendor which are inconsistent with or in addition to these terms and conditions shall be void and of no effect unless and to the extent expressly accepted by the City in writing.

2. Delivery, Inspection, and Acceptance of Goods/Services: Goods/services are to be delivered to the location specified. All deliveries are F.O.B. destination.

Vendor acknowledges that time is of the essence in the performance of this contract. If the goods and/or services are not delivered within the time period stated on the Vendor’s proposal, or by a different date mutually agreed to in writing, the City reserves the right to cancel the order. If the City cancels the order because of late delivery, the Vendor will not be allowed to charge the City for any costs associated with the order and may be charged any increase in cost the City must pay for the replacement order. Charges not included in the contract will not be paid.

Within 14 calendar days, unless the contract stipulates a different time period, the City will inspect the goods received to verify compliance with specifications. If deficiencies are detected, the goods will be rejected and the Vendor will be required to make the necessary adjustments or replacements at the Vendor’s expense. Acceptance of the goods will be made when the City determines the goods received are in compliance with specifications and are free from defects.

3. Payment: All invoices shall contain correct bid or contract pricing, the applicable purchase order number, and the name of the City employee making the purchase. Invoices shall be sent to the dept. making the purchase. Vendor shall submit invoices to the City within 60 days of delivery of goods or provision of service. Invoices with incorrect pricing will be returned to the Vendor for correction. The City will pay approximately 30 days after acceptance of goods or services and receipt of a correct and undisputed invoice, whichever occurs last.

The City will take early payment discounts when the net payment period is over 15 days. The payment period will extend to the date that the invoices are paid. Should the Vendor become delinquent with any fees, assessments, or charges due to the City, the City will reduce any amount owed to the Vendor by the delinquent amount owed to the City. The City reserves the right to audit Vendor’s records when necessary.

4. Sales Tax: Sales tax must be stated separately on each invoice. If the current local sales tax is not charged, the City will remit all sales tax due directly to the California State Board of Equalization.

5. Warranty: Vendor warrants that the item(s) provided and/or work performed under this contract comply with all specifications, are free of liens and encumbrances, and that workmanship and materials are free from defects. Work shall comply with nationally recognized codes and established industry standards. Equipment shall carry the manufacturers’ most favorable commercial warranties. The warranty period shall begin after acceptance of item(s) and/or work and shall extend thereafter for a period of ninety days, or as otherwise specified by the manufacturer’s standard warranty, whichever is later. Vendor agrees to remedy by replacing or repairing any item(s) that is damaged or defective during normal usage within the warranty period, at no additional cost to the City. Such repair or replacement shall occur within a reasonable time frame, to the satisfaction of the City.

6. Indemnity:

For General Services: To the fullest extent permitted by law, Vendor agrees to indemnify, defend, and hold harmless the City, its officials, officers, employees, and volunteers from and against any and all claims, demands, actions, liabilities, damages, judgments, or expenses, (including attorneys’ fees and costs) arising from the acts or omissions of Vendor, Vendor’s employees or agents, or in any way related to the obligations or the performance of services under this contract, except for design professional services as defined in Civil Code §2782.8, and except where caused by the sole or active negligence, or willful misconduct of City.

For Design Professional Services under Civil Code §2782.8: To the fullest extent permitted by law, Vendor agrees to indemnify, defend, and hold harmless City, its officials, officers, employees, and volunteers from and against any and all claims, demands, actions, liabilities, damages, or expenses, (including attorneys’ fees and costs) arising from the ence, recklessness, or willful misconduct of the Vendor, Vendor’s employees or agents, in any way related to the

CITY OF SANTA CRUZ TERMS AND CONDITIONS OF PURCHASE

obligations or the performance of design professional services under this contract as defined in Civil Code §2728.2, except where caused by the sole or active negligence, or willful misconduct of City. The costs to defend charged to the Vendor relating to the design professional services shall not exceed the Vendor’s proportionate percentage of fault per Civil Code §2782.8.

7. Compliance Requirements: Vendor shall be responsible for complying with all applicable Federal, State, and local laws and regulations including, but not limited to, City policies, ordinances, and Best Management Practices. Requirements vary based on the nature of the product to be provided and/or work to be performed; these shall include, but are not limited to, complying with the items listed below and following City Council policies regarding asbestos in products, polystyrene foam, recycled paper, and fair trade coffee. These policies are available on the City’s website here.

a. Licensing: Vendor warrants that it has complied with any and all federal, state, and local licensing requirements and agrees to provide proof of a current City of Santa Cruz Business Tax Certificate if:

i. Vendor is located in the City of Santa Cruz;

ii. Will perform physical work in the City of Santa Cruz for 6 or more days annually; or

iii. Will use company vehicles to deliver within the City of Santa Cruz for 6 or more days annually.

For additional information and licensing requirements, view the City’s Business Licenses and Permits webpage or call the Revenue and Taxation division at 831/420-5070.

b. Prevailing Wage: In performing “public work” pursuant to and subject to Labor Code §1720 et seq. under this contract, Vendor (and any subcontractor performing the work or services) shall conform to any and all prevailing wage requirements applicable to such work/and or services. All workers employed in the execution of a public works contract (as defined in Labor Code §1720 et seq. and §1782(d)(1)) must be paid not less than the specified prevailing wage rates for the type of work performed. (See Labor Code §§1720, 1774 and 1782.) Pursuant to Labor Code §1773.2, the current prevailing rate of per diem wages at the time of the contract as determined by the Director of the Department of Industrial Relations (DIR) may be on file at the dept. office awarding the public work. Vendor shall post a copy of these rates at the work site, if any.

The “public work” project is subject to the compliance monitoring and enforcement by the DIR. The Vendor and subcontractor, if any, must be registered with the DIR to submit a bid or engage in the performance of any contract for public work pursuant to Labor Code §§1725.5 and 1771.1. The Vendor is responsible for posting job site notices as prescribed by regulation pursuant to Labor Code §1771.4(a)(2). The Vendor and each subcontractor, if any, must submit certified payrolls to the Labor Commissioner pursuant to Labor Code §1771.4.

Any failure of Vendor and/or its subcontractors to comply with the above requirements shall constitute a breach of this contract that excuses the City’s performance of this contract at the City’s sole and absolute option, and shall be at the sole risk of Vendor. Vendor on behalf of itself, and any subcontractor, agrees to indemnify, defend and hold harmless the City and its officials, officers, employees, and agents from and against any and all claims, liabilities, losses, costs, expenses, attorneys’ fees, damages, expenses, fines, financial consequences, interest, and penalties, of any kind or nature, arising from or relating to any failure (or alleged failure) of the Vendor and any subcontractor to pay prevailing wages or to otherwise comply with the requirements of prevailing wage law.

c. Living Wage: Every contract for services to the City for $10,000 or more, is subject to City of Santa Cruz Living Wage Ordinance number 2000-25. The requirements of the Living Wage ordinance are provided in Santa Cruz Municipal Code Chapter 5.10.

d. Vendors’ Duties Concerning Labor Code Compliance. As required by Labor Code §1775(b)(1), Vendor shall include in any contract between Vendor and subcontractors for the performance of work on a public works project, a copy of Labor Code §§1771, 1775, 1776, 1777.5, 1813 and 1815.

e. Apprentices. The Vendor is responsible for compliance with Labor Code §1777.5 for all apprentices whether employed directly or through subcontractors on a public works project.

f. Payroll Records. Pursuant to Labor Code §1776, for public works projects, the Vendor and any subcontractor shall keep, make available, and submit to the City within ten (10) days of receipt of a written request, certified payroll records. Pursuant to Labor Code § 1776(h), if the Vendor or any subcontractor fails to comply with the ten-day period, he or she shall, as a penalty to the City, forfeit the prescribed amount for each calendar day, or portion http://www.cityofsantacruz.com/government/city-departments/finance-/purchasing-division/selling-to-the-city Revised 3/14/2022 Page 2 thereof, for each worker, until strict compliance is effectuated. The Vendor shall include provisions in its subcontracts as required to make this paragraph effective as to each subcontractor. Upon written request, the Vendor shall withhold penalties forfeited by a subcontractor pursuant to Labor Code §1776(h) and this paragraph from payment due to such subcontractor and remit such penalties withheld to the City.

g. Hours of Labor. Pursuant to Labor Code § 1810, 8 hours of labor shall constitute a legal day’s work. Pursuant to Labor Code § 1813, the Vendor and each subcontractor, if any, shall, as a penalty to the City, forfeit the prescribed amount per calendar day for each worker required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week without being compensated in accordance with § 1815. Vendor shall include terms in its subcontracts as required to make this paragraph effective as to each subcontractor. Upon written request, Vendor shall withhold penalties forfeited by a subcontractor pursuant to Labor Code §1813 and this paragraph from payments due to such subcontractor and remit such penalties withheld to the City.

h. Storm Water Requirements: The Vendor, and all subcontractors, are required to abide by the applicable City of Santa Cruz Storm Water Best Management Practices (BMPs) for the duration of the work. The City’s mandatory Storm Water BMPs, which are listed according to the type of work, operations, or business, are located on the City website here.

8. Insurance: Prior to the beginning of and throughout the duration of this contract, Vendor will maintain insurance in conformance with the requirements set forth herein. Vendor will insure the City against claims for injuries to persons or damages to property which may arise from or in connection with the goods, or the work performed hereunder and the results of that work by Vendor, Vendor’s agents, representatives, employees or subcontractors.

a. Standard Certificate Requirements The City will be issued a Certificate of Insurance (a Memorandum of Understanding will not be accepted) with the following minimum requirements:

· Certificate(s) will show current policy number(s) and effective dates,

· Coverage and policy limits will meet, or exceed, requirements below,

· The Certificate Holder will be City of Santa Cruz, Risk Management, 877 Cedar Street, Suite 100, Santa Cruz, CA 95060,

· Certificate will be signed by an authorized representative,

· An endorsement will be provided to show the City, its officers, officials, employees, agents and volunteers as additional insured.

11. b. Minimum Scope and Limits of Insurance:

The Vendor acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. The City will be entitled to coverage for the highest limits maintained by the Vendor. Coverage will be at least as broad as:

· Commercial General Liability (CGL): $2,000,000 per occurrence Proof of coverage for up to $2 Million per occurrence including products and completed operations, property damage, bodily injury, personal injury and advertising injury will be provided on Insurance Services Office (ISO) Form CG 00 01 covering CGL. If a general aggregate limit applies, either the general aggregate limit will apply separately to this project/location or the general aggregate limit will be at least twice the required occurrence limit.

· Automobile Liability: $1,000,000 Proof of coverage for $1 Million will be provided on ISO Form Number CA 00 01 covering any auto (Code 1), or if Vendor has no owned autos, hired, (Code 8) and non-owned autos (Code 9), per accident for bodily injury and property damage.

· Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance: $1,000,000 per accident for bodily injury or disease. Must include a waiver of subrogation.

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c. Additional Requirement for Professional Services Professional Liability (Errors and Omissions): $2,000,000 per occurrence or claim, $2,000,000 aggregate Vendor will maintain insurance appropriate to Vendor’s profession, with limit no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after date of completion of the services under this contract. If coverage is canceled or non-renewed and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date or start of work date, Vendor must purchase “extended reporting” coverage for a minimum of five (5) years after completion of contract work.

If Vendor maintains broader coverage and/or higher limits than the minimums shown above, the City of Santa Cruz requires and shall be entitled to the broader coverage and/or higher limits maintained by Vendor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Santa Cruz.

d. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions:

· Additional Insured Status The City, its officers, officials, employees, agents and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Vendor including materials, parts, or equipment furnished in connection with such work or operations.

General liability coverage will be provided in the form of an endorsement to the Vendor’s insurance at least as broad as ISO Form CG 20 10 11 85, or if not available, through the addition of both CG 20 10 and CG 20 37 (if a later edition is used).

· Primary Coverage For any claims related to this contract, the Vendor’s insurance coverage will be primary insurance as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers will be excess of the Vendor’s insurance and will not contribute with it.

· Notice of Cancellation Each insurance policy required above shall state that the coverage shall not be canceled, except with notice to the City.

· Waiver of Subrogation Vendor hereby grants to the City a waiver of any right to subrogation which any insurer of said Vendor may acquire against the City by virtue of the payment of any loss, including attorneys’ fees, under such insurance. Vendor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.

The Worker’s Compensation policy will be endorsed with a waiver of subrogation in favor of the City for all work performed by the Vendor and its employees.

· Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions will be declared to and approved by the City. City may require Vendor to purchase coverage with a lower retention or provide proof of ability to pay losses and related expenses. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.

· Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the Entity.

· Verification of Coverage Vendor will furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning will not waive the Vendor’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

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a. Special Risks/Circumstances City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances, including but not limited to requiring the following:

· Data Breach Risk - Cyber Liability Insurance of limits no less than $5 Million per occurrence and $10 Million in the aggregate.

· Risk of Loss in Transporting Money - Cash In Transit Policy Insurance covering all risks of physical loss or damage while in transit or at premises for limits no less than $10 Million per occurrence and $20 Million in the aggregate.

· Financial Breach Risk - Financial Crime Coverage for limits no less than $5 Million per occurrence and $10 Million in the aggregate.

· Risk in Transporting People or Goods in a Vehicle - Common Carrier Liability Insurance of limits no less than $10 Million per occurrence and $20 Million in the aggregate.

· Risk in Storing Vehicles – Garage-keeper’s Liability Insurance of limits no less than $2 Million per occurrence and $4 Million in the aggregate.

· Construction Risks - Builder’s Risk (Course of Construction) Insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions, and name the City as loss payee.

· Environmental Hazard - Pollution Legal Liability Insurance with limits no less than $1 Million per occurrence or claim, and $2 Million in the aggregate.

b. Claims Made Policies If any of the required policies provide coverage on a claims-made basis:

1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.

2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.

3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Vendor must purchase “extended reporting” coverage for a minimum of five (5) years after completion of contract work.

12. c. Subcontractors Vendor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Vendor shall ensure that City, its officers, officials, employees, and volunteers are additional insureds on insurance required from subcontractors.

9. Travel Reimbursement Policy When it is mutually agreed between the City and the vendor, the vendor’s employees will be reimbursed for travel expenses according to this policy. It is expected that all travel expenses incurred by vendors while conducting activities on behalf of the City will be at reasonable rates and that vendors will exercise prudence in incurring these expenses.

13. Meals Meals are reimbursed at the current GSA Meals & Incidental per diem rate by county (www.gsa.gov/travel). The City does not reimburse for actual costs for meals. Reimbursement is based solely on per diem rates. Do not submit meal receipts.

· Travel before 8:00a qualifies for breakfast reimbursement.

· Travel between 8:00a – 1:30p qualifies for lunch reimbursement.

· Travel between 1:30p – 7:00p (or later) qualifies for dinner reimbursement.

· Days between hotel stays and days starting before 8a and ending after 7p, qualify for the full GSA…