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Resolution No. 78242 3 4 5 6 7 E:l V 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 � r t RESOLUTION NO. 7824 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF AN EQUIPMENT PURCHASE CONTRACT BY AND BETWEEN THE CITY OF VERNON AND CUSTOM INSTRUMENTATION SERVICES CORPORATION REGARDING THE MALBURG GENERATING STATION PROJECT ♦ o I WHEREAS, the Utilities Department of the City of Vernon has determined that the City needs to purchase Combustion Turbine Continuous Emission Monitoring Systems ("CEMS") with additional options of six (6) copies of 40CFR75 Monitoring Plan and 40CFR60 Appendix F/40CFR75 Appendix B QA/QC document and two (2) day Environmental Data Reporting Training for the Malburg Generating Station Project (the "Project"); and WHEREAS, since the Utilities Department determined that the expedited purchase of the CEMS for the Project will assist Vernon in meeting its short and long term electricity goals and is in the public interest, staff sought informal quotes for the purchase of the CEMS; and WHEREAS, on August 21, 2001, the Finance Committee recommended that the City Council approve the recommendation of Bruce V. Malkenhorst, the Director,of Finance, dated August 15, 2001, that the bid for the CEMS be awarded to Custom Instrumentation Services Corporation and that an equipment purchase contract be approved and executed; and WHEREAS, the City Council of the City of Vernon has determined that, pursuant to the provisions of subsection (a) of Section 2.27 of the Vernon City Code, it is in the public interest and necessity to enter into a contract with Custom Instrumentation Services 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Corporation for the purchase of the CEMS for the Project. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Equipment Purchase Contract with Custom Instrumentation Services Corporation, a copy of which is attached hereto as Exhibit "A" and made a part hereof. SECTION 3: The City Council of the City of Vernon hereby authorizes the Mayor and the City Clerk to execute said Contract for, and on behalf of, the City of Vernon. SECTION 4: The City Council of the City of Vernon hereby directs the City Clerk, or his designee, to send one fully executed Contract to: Custom Instrumentation Services Corporation Attn. Leonard H. Richter, President 7325 South Revere Parkway Englewood, CO 80112 SECTION 5: The City Clerk of the City of Vernon shall certify to the passage of this resolution, and thereupon and thereafter the same shall be in full force and effect. APPROVED AND ADOPTED this 5th day of September, 2001. ATTEST: BRUCE V. MALKENHORST, City Clerk EONIS C. MAL RG, May r - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 7824, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Wednesday, September 5, 2001, and thereafter was duly signed by the Mayor of the City of Vernon. (SEAL) BRUCE V. MALKENHORST, City Clerk - 3 - EXHIBIT 0 1 EQUIPMENT PURCHASE AND SERVICES CONTRACT 2 3 THIS AGREEMENT is made, entered into and executed in 4 duplicate originals, either copy of which may be considered and used as 5 the original hereof for all purposes, as of this day of September 6 2001, in the City of Vernon, County of Los Angeles, California 7 BY AND BETWEEN The City of Vernon (hereinafter referred to as the "City") 8 4305 Santa Fe Avenue 9 Vernon, CA 90058 10 AND Custom Instrumentation Services Corporation 11 (hereinafter referred to as "CISCO") 12 7325 South Revere Parkway Centennial, CO 80112 13 RECITALS 14 15 WHEREAS, the City's Utilities Department has determined that 16 the City is in need of certain equipment and services as part of its 17 endeavor to increase the City's electric generation capacity; and 18 WHEREAS, CISCO has advised the City that it can provide the 19 equipment and services required by the City; and 20 WHEREAS, the City desires to enter into an agreement with CISCO to provide for the purchase of the Combustion Turbine Continuous 21 Emission Monitoring System (CEMS) for the Malburg Generating Station 22 Project, as well as the necessary start up and support services, 23 monitoring plan for submittal to the Environmental Protection Agency, 24 and data reporting training; and 25 WHEREAS, CISCO represents that it is qualified and capable of 26 providing the type of equipment and services the City requires and is 27 willing to do so on the terms and conditions set forth below. 28 1 NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS 2 SET FORTH HEREIN: 3 1. Purchase. 4 CISCO agrees to sell and deliver the equipment and provide 5 the services as set forth and described in detail in the Proposal, a 6 copy of which is attached hereto as Exhibit "A" and incorporated herein 7 by reference and the "Specification For Continuous Emission Monitoring 8 System City of Vernon 120 MW Combined Cycle Power Plant," conformed 9 August 19, 2001, a copy of which is attached hereto as Exhibit "B" and 10 incorporated herein by reference. It is understood and agreed that in 11 the event of a conflict between the Proposal and this Agreement, the 12 terms of this Agreement shall prevail. 2. Time of Performance. 13 14 CISCO's performance, as identified herein, shall commence 15 upon the signing of this Agreement and shall be completed by CISCO, unless terminated or extended. 16 3. Price. 17 18 CISCO agrees to sell and deliver the equipment and provide the start up and support services and on -site training described in its 19 Proposal for the amount of Three Hundred Forty Six Thousand Six Hundred 20 Dollars and No Cents ($346,600.00), including freight, insurance, 21 22 Guaranteed Certification Services and a Three Day on Site 0&M Training 23 Course. In addition, CISCO will provide six (6) copies each of the 24 required 40 CFR 75 Monitoring Plan for submittal to the EPA and 40 CFR 25 60 Appendix F/40 CFR 75 Appendix B QA/QC Document for the Plant at a 26 cost of Three Thousand Five Hundred Dollars ($3,500.00). CISCO will 27 also provide a two-day on -site EDR Training Course at a cost of Four 28 Thousand Dollars ($4,000.00). The total contract price of the - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 equipment and services under this Agreement is Three Hundred Fifty -Four Thousand One Hundred Dollars and No Cents ($354,100.00) 4. Payment Terms. Invoices shall be submitted to the City according to the following payment schedule: twenty-five percent (250) of the total contract price for analyzers, which will be invoiced when the analyzers are received by CISCO, approximately six to eight weeks before the CEMS are shipped; (2) seventy-five percent (75%) of the total contract price for the CEMS which will be invoiced upon shipment of the system to the City. The City may retain ten percent (10%) of the total contract price. The retention shall be withheld from each of the two payments to be made to CISCO based on the invoiced amounts. However, fifty percent (50%) of the retained amount will be paid to CISCO upon the startup of the system, and the remainder of the retained amount will be paid to CISCO upon the certification of.the CEMS and delivery of any outstanding deliverables. The City will be invoiced for the retained amounts when each event occurs. Terms are net fifteen (15) days, electronically transferred, in U.S. dollars after the date of invoice. Except for the ten percent retention, as described, any other incremental retention of an invoiced amount is disallowed. CISCO will supply the City with its bank information, ABA and account number upon the full execution of this Agreement. S. Delivery. The delivery dates will be mutually decided. Failure to deliver the equipment on the agreed upon delivery date shall subject the City to damages which are difficult or impossible to ascertain. CISCO agrees to pay the City one percent (1%) of the total contract price per week, up to ten percent (10%) of the total contract price, - 3 - 1 for late delivery, based on the agreed upon delivery date, which is not 2 caused by change orders or force majeure. The maximum aggregate 3 liquidated damages payable under this Agreement shall not exceed ten 4 percent (10%) of the total contract price. 5 6. Change and Extra Services. 6 The City reserves the right to request changes in the 7 equipment design, delivery dates, or additions to or deletions from the 8 equipment purchased from CISCO. All such changes shall be incorporated 9 in written change orders executed by the City and CISCO that shall 10 specify the changes ordered and the adjustment of prices, delivery 11 schedules and warranties. Any equipment or services added to this 12 Agreement, under this section, shall be executed under all applicable 13 conditions of this Agreement. No claim for additional compensation or 14 extension of time shall be recognized unless contained in a duly 15 executed change order. 16 7. Cancellation/Default. 17 A. This Agreement may be terminated by the City for its 18 convenience upon fifteen (15) days prior written notice and upon 19 payment of reasonable and proper termination charges, including all 20 costs incurred or committed prior to the effective date of notice of 21 termination and all charges incurred by CISCO in connection with the 22 termination, plus reasonable overhead and profit. 23 B. In the event that CISCO commits a breach of a material 24 condition of this Agreement, the City shall notify CISCO in writing of 25 said breach and if CISCO has not cured or begun reasonable efforts to 26 cure after fifteen (15) days of receipt of said notice, and fails to 27 diligently pursue corrective action, then the City shall have the right 28 to cancel this Agreement. CISCO shall be responsible for any direct - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 costs due to the City's re -procurement of the equivalent of the equipment of services cancelled from CISCO. C. If the City fails to make any contractual payment to CISCO when due under the provisions of this Agreement, and such failure is not remedied within fifteen (15) days of the City's receipt of written notice of such default, then CISCO will notify the City. If such failure is not remedied within seven (7) days of the City's receipt of the second notice then CISCO may terminate this Agreement for the City's default and recover all costs expended by CISCO plus a reasonable amount for profit and overhead thereon. 8. Confidential Information. A. Access to Confidential Information. The City may provide CISCO with, or allow CISCO access to, certain information not available to the public concerning, but not limited to the City, or businesses located in the City. The information may include, but is not limited to, company information, taxes, sales, value of assets, utility usage, or other such information. All such information shall be known as "Confidential Information" and may not be used to circumvent the responsibility of either party to this Contract. B. No Disclosure. Except as expressly permitted, CISCO shall not disclose, permit the disclosure of, release, disseminate, or transfer, whether orally or by any other means, any part of such Confidential Information to any other person or entity, whether corporate, governmental, or individual, without the express prior written consent of an authorized representative of the City. CISCO shall return any written Confidential Information, and all copies made of such items, to the City upon the City's written request, but in any event not later than the date that CISCO has performed all services to - 5 - 1 2 3 C! 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21'' 22' 23I 24 25 26 27 28 be performed pursuant to this Contract. CISCO hereby agrees that such Confidential Information and any documents provided may be used by CISCO only as authorized by the City. CISCO shall take reasonable measures to avoid any disclosure of any such Confidential Information to any unauthorized person. C. Court Ordered Disclosure. CISCO shall immediately notify the City of any court order or subpoena requiring disclosure of Confidential Information, and shall cooperate with legal counsel in the appeal or challenge of any such order or subpoena. Recipient may only disclose Confidential Information required to be disclosed pursuant to court order or subpoena after legal counsel has exhausted any lawful and timely appeal or challenge. D. Remedies. In addition to any other remedies that it may have at law or in equity, the City shall be entitled to a temporary and permanent injunction by a court of competent jurisdiction against any breach or threatened breach of the Confidential Information provisions of this Contract. CISCO acknowledges that in case of such breach or threatened breach of said provisions, the City would have no adequate remedy at law. 9. Warranties. CISCO warrants title to the equipment purchased hereunder and any part thereof to be free of any claim of any security interest, lien or any encumbrance. CISCO also warrants that the equipment will be delivered new and shall be free from defects in material and workmanship for the warranty period of twenty-four (24) months after successful certification or thirty-six (36) months from the date of delivery of the equipment, whichever occurs first. All manufacturers' warranties, any warranties typically provided by CISCO, and any other - 6 - 1 warranties made applicable by law shall apply to the parts and labor 2 provided by CISCO. 3 10. Compliance with Laws. 4 CISCO shall strictly observe and comply with all applicable 5 federal, state, and local laws, ordinances and regulations governing 6 this sale, including but not limited to any permit or license 7 requirements of the United States Department of Commerce, as well as 8 any laws of the United States of America in force at the time this 9 Agreement is fully executed. 10 11. Governing Law. 11 The validity, interpretation and performance of this 12 Agreement shall be controlled and construed under the laws of the State 13 of California as enacted and in force at the time this Agreement is 14 fully executed. 15 12. Forum Selection. 16 Any action brought relating to this Agreement shall be 17 brought and held exclusively in a State Court in the County of Los 18 Angeles, California. 19 13. Notices. 20 Notices to the parties, unless otherwise requested in 21 writing, shall be sent to: 22 City: THE CITY OF VERNON ATTN: BRUCE V. MALKENHORST 23 CITY ADMINISTRATOR 4305 SANTA FE AVENUE 24 VERNON, CA 90058-0805 25 CISCO: CUSTOM INSTRUMENTATION SERVICES CORPORATION' 26 ATTN: VIC JOHNSON 7325 SOUTH REVERE PARKWAY 27 CENTENNIAL, CO 80112 28 - 7 - 14. General Provisions. 1 A. Independent Contractor. 2 At all times during the term of this Agreement, CISCO shall 3 be an independent contractor and shall not be an employee of the City. 4 The City shall have the right to control CISCO only insofar as the 5 results of CISCO services rendered pursuant to this Agreement; however, 6 the City shall not have the right to control the means by which CISCO 7 accomplishes services rendered pursuant to the Agreement except to the 8 extent that such services involve the use of City property or 9 Confidential Information. 10 B. CISCO Not Agent. 11 Except as the City may specify in writing, CISCO shall have 12 no authority, express or implied, to act on behalf of the City in any 13 ` capacity whatsoever as an agent. CISCO shall have no authority, express 14 or implied, pursuant to this Agreement to bind the City to any 15 obligation whatsoever. 16 C. Indemnification. 17 CISCO shall indemnify, defend, protect and hold the City and 18 its employees, the Contractor and its employees, and the Engineer and 19 its employees, free and harmless from and against any and all claims, 20 demands, losses, damages, liabilities, fines, charges, penalties, 21 orders, judgments and all costs and expenses incurred in connection 22 therewith, including reasonable attorney's fees and costs of defense 23 arising out of the services performed at the jobsite in Vernon under 24 this Agreement, except to the extent arising from or caused by the sole 25 negligence or willful misconduct of the City, its officers, agents or 26 employees. 27 28 - 8 - 1 D. Comprehensive General and Automobile Insurance. 2 CISCO agrees to provide insurance in the amounts and forms 3 specified in Exhibit "C," which is attached hereto and made a part 4 hereof by reference. Comparable coverage shall be provided for each 5 subcontractor used in the performance of this Agreement. CISCO shall 6 submit to the City documentation indicating compliance with these 7 minimum requirements no less than one (1) day prior to the beginning of 8 performance under this Agreement. CISCO shall not commence performance 9 of its services under this Agreement until the above insurance has been 10 obtained and proof of insurance has been filed with and approved by the 11 City. 12 E. Assignment and Subcontracting Prohibited. 13 No party to this Agreement may assign or subcontract any 14 right or obligation pursuant to this Agreement without the express 15 written consent of the other party. Any other attempted or purported 16 assignment of any right or obligation pursuant to this Agreement shall 17 be void and of no effect. 18 F. Entire Agreement. 19 This Agreement constitutes the complete and final expression 20 of the agreement of the parties and is intended as a complete and 21 exclusive statement of the terms of their agreements and supersedes all 22 prior and contemporaneous offers, promises, representations, 23 negotiations, discussions, communications and agreements which may have 24 been made in connection with the subject matter hereof. All exhibits 25 are incorporated by reference. CISCO represents that in entering into 26 this Agreement, it has not relied on any previous representations or 27 understandings of any kind or nature. 28 - 9 - 1 G. Partial Invalidity. 2 Wherever possible, each provision hereof will be interpreted 3 in such manner as to be effective and valid under applicable law, but 4 in case any one or more of the provisions contained herein will, for, 5 any reason, be held to be invalid, illegal or unenforceable in any 6 respect, such provision will be ineffective to the extent, but only to 7 the extent, of such invalidity, illegality or unenforceability without 8 invalidating the remainder of such invalid, illegal or unenforceable 9 provision or provisions or any other provision hereof, unless such a 10 construction would be unreasonable or contrary to the intent of the 11 parties as expressed in this Agreement. 12 H. Time of the Essence. 13 Time is of the essence in the performance of this Agreement 14 and of each and every provision hereof. The waiver by the City of any 15 breach or breaches hereof shall not be deemed, nor shall the same 16 constitute, a waiver of any subsequent breach or breaches. 17 I. Risk of Loss. 18 Title and risk of loss or damage shall pass to the City and 19 delivery shall be deemed to be complete upon delivery FOB jobsite or 20 upon moving into storage at the City's request, whichever occurs first. 21 J. Attorneys' Fees. 22 In the event that it becomes necessary for either party to 23 this Agreement to enforce any of the provisions of this Agreement, the 24 parties agree that a court of competent jurisdiction may determine and 25 fix reasonable attorney's fees to be paid to the successful litigant. 26 K. Benefit of Agreement. 27 This Agreement shall bind and benefit the parties hereto and 28 their heirs, successors, and permitted assigns. - 10 - 1 L. Force Majeure. 2 Neither party shall be considered to be in default in any of 3 its obligations under this Agreement when a failure of performance 4 shall be due to an uncontrollable force. The terms "uncontrollable 5 force" shall mean any cause beyond the control of the party affected, 6 including, but not restricted to, flood, earthquake, storm, fire, 7 lightening, epidemic, war, riot, civil disturbance or disobedience, 8 labor dispute, labor material shortage, sabotage, federal, state, or 9 municipal action, statute, ordinance, or regulation, embargoes or the 10 United States Government or any other government, which by exercise of 11 due diligence such party could not reasonably have been expected to 12 avoid and by exercise to due diligence has been unable to overcome. 13 Either party rendered unable to fulfill any of its obligations under 14 this Agreement by reason of an uncontrollable force, shall give written 15 notice within five (5) business days of such fact to the other party 16 and shall exercise due diligence to remove such inability with all 17 reasonable dispatch. 18 M. Waiver. 19 Any waiver at any time by either party of its rights with 20 respect to a default under this Agreement, or with respect to any other 21 matters arising in connection with this Agreement, shall not be deemed 22 a waiver with respect to subsequent default or other matter. 23 N. Amendment. 24 All changes or modifications to this Agreement shall be in a 25 writing stating that it is an amendment to this Agreement and shall be 26 signed by both parties or their duly authorized agents. This Agreement 27 shall not be modified through course of dealing, usage or trade. 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by and through their authorized officers on the date, month and year first written above. ATTEST: BRUCE V. MALKENHORST, City Clerk APPROVED AS TO FORM: EDUARDO OLIVO, City Attorney CITY OF VERNON By: LEONIS C. MALBURG, Mayor CUSTOM INSTRUMENTATION SERVICES CORPORATION By: Title: By: Title: - 12 - A COMPLETE COPY OF EXHIBIT "A" IS INCLUDED IN THE FINAL AGREEMENT IWG401*601 A COMPLETE COPY OF EXHIBIT `%B" IS INCLUDED IN THE FINAL AGREEMENT EXHIBIT B EXHIBIT C 1. 1 , 4 . 1 EXHIBIT C 2 INSURANCE SCHEDULE 3 CISCO shall provide proof of insurance, including a standard certificate of insurance, in at least the following amounts and coverage (combined single limit permitted): 4 I. Coverage and Limits 5 Bodily Injury Property Damage 6 Hazards Each Person Each Accident Each Accident 7 Automobile Liability Hired Automobiles $ 500,000 $1,000,000 $ 500,000 8 Non -Owned Automobiles $ 500,000 $1,000,000 $ 500,000 9 Workers' Compensation $ Statutory Employers' Liability $100,000 $300,000 10 11. General and Professional Liability 11 12 General Liability $1,000,000 $2,000,000 $1,000,000 Premises Operations $1,000,000 $2,000,000 $1,000,000 13 Independent Contractors $1,000,000 $2,000,000 $1,000,000 Products - Completed Operations $1,000,000 $2,000,000 $1,000,000 14 Contract Liability $1,000,000 $2,000,000 $1,000,000 15 a. The general liability policy shall contain the following special endorsements which shall be noted on 16 or attached to the standard certificate of insurance: 17 1. An endorsement naming the City of Vernon, its officers, and employees as additional insureds 18 under the policy, except workers' compensation insurance. 2. An endorsement providing the City of Vernon thirty (30) days notice of cancellation or material 19 reduction of coverage. 3. An endorsement providing coverage for all operations under this Agreement. 20 4. Such other endorsement as may be required by addendum hereto. 21 b. In addition to the standard certificate of insurance, proof of general and professional liability 22 coverage shall be furnished in the form checked below. Certification of the following proofs by the insurance agent or broker will not be accepted: 23 X For each policy, a notarized letter from the underwriter or carrier certifying that the coverage and 24 statements in the standard certificate of insurance (attached thereto) are true and correct and that 25 the signator is an officer authorized to so certify. 26 A copy of each policy certified by an officer of the underwriter or carrier and notarized. 27 21 EXHIBIT "C"