Agreement_for_Wildland_Type_Six_Fire_Engine.pdf

WILDLAND TYPE SIX FIRE ENGINE PURCHASE AGREEMENT Page 1

PURCHASE AGREEMENT

OF WILDLAND TYPE SIX FIRE ENGINE

THIS PURCHASE AGREEMENT, made and entered into this day of ______________, 2023, (“Effective Date”) by and between the CITY OF SANTA CRUZ, a municipal corporation, hereinafter called “City,” and ______________, Inc., hereinafter called “Vendor;” for the purchase of a Wildland Type Six Fire Engine. City and Vendor are individually referred to as a “Party” or collectively, as the “Parties”.

WITNESSETH, that the Parties hereto do mutually agree as follows:

SECTION I: GOODS/SERVICES

A. That for and in consideration of the covenants and agreements herein contained, the Vendor hereby covenants and agrees to furnish and deliver a Wildland Type Six Fire Engine in strict conformity and compliance with the Contract Documents, as hereinafter defined, and in accordance with this Purchase 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 Wildland Type Six Fire Engine 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 Purchase Agreement (hereinafter the “Contract Documents”):

1. This Purchase Agreement;

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

3. Invitation for Bids (“IFB”) Packet – attached hereto as Exhibit B; and

4. Vendor’s Proposal – attached hereto as Exhibit C.

B. Priority of Contract Documents.

The Parties to this Purchase 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 Purchase Agreement shall take priority and control in the case of any conflicts with any of the exhibits attached hereto.

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SECTION III: 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 5.6.

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:

City hereby agrees to pay Vendor the amount of $______________ after acceptance of the vehicle by the City. Acceptance is defined to mean that the City determines after its inspection(s) and test(s) that the vehicle and equipment and apparatus meets the IFB Vehicle Requirements and is in good working 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.

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.”

3. Section 5 of the City’s Standard Terms is deleted and replaced with Section 5.12.

Warranty in the IFB.

4. 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 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:

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• 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, 1200 Pacific Ave., Suite 290, Santa Cruz, CA 95060,

• Certificate will be signed by an authorized representative,

• An endorsement, if required below, will be provided to show the City, its officers, officials, employees, and volunteers as additional insureds, and

• Coverages must be maintained during the term of the Agreement with the

City, unless a longer duration is required as specified below.

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.

Risk in Transporting Goods in a Vehicle - Carrier Liability Insurance of limits no less than $2 Million per occurrence and $2 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.

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

WILDLAND TYPE SIX FIRE ENGINE PURCHASE AGREEMENT Page 4 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 contract, 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.

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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.

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

“15. Termination of Contract:

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

The Vendor may terminate the contract for cause due to a material breach of contract by providing written notice to the City not less than 30 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 Purchase 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 contract 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.”

6. 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

WILDLAND TYPE SIX FIRE ENGINE PURCHASE AGREEMENT Page 6 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.”

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

ARTICLE IV: TERM OF PURCHASE AGREEMENT

The term of the Purchase Agreement will be from the effective date to 18 months, until _______________2025. The Parties may extend the term of this Purchase Agreement by mutual consent in writing.

ARTICLE V: 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. 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.

3. Intellectual Property and Indemnity. Vendor represents to City that, to the best of Vendor’s knowledge, any Intellectual Property (including but not limited to: patent, patent application, trade secret, copyright and any applications or right to apply for registration, computer software programs or applications, tangible or intangible proprietary information, or any other intellectual property right) in connection with any services and/or products related to this Agreement does not violate or infringe upon any Intellectual Property rights of any other person or entity.

To the fullest extent permitted by law, Vendor agrees to indemnify, defend, and hold harmless City, its officials, officers, employees, and agents, from any and all claims, demands, actions, liabilities, damages, or expenses (including reasonable attorneys’ fees and costs) arising out of a claim of infringement, actual or alleged, direct or contributory, of any Intellectual Property rights

WILDLAND TYPE SIX FIRE ENGINE PURCHASE AGREEMENT Page 7 in any way related to Vendor’s performance under this Agreement or to the City’s authorized intended or actual use of Vendor’s product or service under this Agreement. This provision shall survive termination or expiration of this Agreement.

If any product or service becomes, or in the Vendor’s opinion is likely to become, the subject of a claim of infringement, the Vendor shall, at its sole expense: (i) provide the City the right to continue using the product or service; or (ii) replace or modify the product or service so that it becomes non-infringing; or (iii) if none of the foregoing alternatives are possible even after Vendor’s commercially reasonable efforts, in addition to other available legal remedies, City will have the right to return the product or service and receive a full or partial refund of an amount equal to the value of the returned product or service, less the unpaid portion of the purchase price and any other amounts, which may be due to the Vendor. City shall have the right to retrieve its data and proprietary information at no charge prior to any return of the product or termination of service.

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, during the period of this Agreement, and for a period of at least five (5) years from the date of the final City payment for Vendor's services, 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. 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.

6. 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

WILDLAND TYPE SIX FIRE ENGINE PURCHASE AGREEMENT Page 8 after the deposit thereof with the U.S. Postal Service. Notices shall be addressed to recipient as follows:

To CITY:

Fire Department City Contact Name Address Email/Phone

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.

7. 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.

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

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

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

11. 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.

12. 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.

13. 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.

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IN WITNESS WHEREOF, this Purchase Agreement is executed by the City Manager of the City of Santa Cruz, under and pursuant to a resolution of the City Council authorizing such execution, and the Vendor has affixed his/her signature hereto the day and year first hereinabove written.

Approved As To Form:

By: _____________________________ Date: __________________

Office of the City Attorney

CITY OF SANTA CRUZ

By: _____________________________ Date: __________________

Matt Huffaker, City Manager

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.

REVIEWED BY:

FIRE DEPARTMENT

By: _____________________________ Date: __________________

Rob Oatey, Fire Chief

WILDLAND TYPE SIX FIRE ENGINE PURCHASE AGREEMENT Exhibit A

EXHIBIT A

CITY OF SANTA CRUZ STANDARD TERMS AND CONDITIONS OF PURCHASE

WILDLAND TYPE SIX FIRE ENGINE PURCHASE AGREEMENT Exhibit B

EXHIBIT B

Invitation for Bids (“IFB”) Packet

WILDLAND TYPE SIX FIRE ENGINE PURCHASE AGREEMENT Exhibit C

EXHIBIT C

BIDDER’S PROPOSAL