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Resolution No. 8391f r Y J 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 RESOLUTION NO. 8391 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF AN EQUIPMENT PURCHASE AND PROFESSIONAL SERVICES CONTRACT BY AND BETWEEN THE CITY OF VERNON AND RHINO CONSTRUCTION SERVICES FOR THE MALBURG GENERATING STATION PROJECT WHEREAS, the City of Vernon ("City") is constructing a 134 MW Combined Cycle Power Plant, the Malburg Generating Station (the "Malburg Project"), for the purpose of installing additional generating capacity that will yield an efficient, cost-effective, and reliable source of electric generation to the City's inhabitants; and WHEREAS, on July 16, 2003, the City Council of the City of Vernon adopted Resolution No. 8252 with the intention of expediting the purchase of supplies and services for the Malburg Project; and WHEREAS, to facilitate the construction of the Malburg Project, the City needs to create suitable office space to house support staff and provide storage at 2670 Leonis Boulevard in the City of Vernon (the "Leonis Property"); and WHEREAS, certain building improvements are required to effectuate the relocation of the City's staff; and WHEREAS, on or about February 2, 2004, Rhino Construction Services ("Rhino"), provided the City with a proposal to provide electrical services for the remodeling of the offices located at the Leonis Property; and WHEREAS, on February 24, 2004, the Finance Committee considered the recommendation of Bruce V. Malkenhorst, Director of Finance, to retain the services of Rhino to provide electrical services for the remodeling to facilitate the construction and operation of the r t � e 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 Malburg Project; 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 Rhino. 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 and Professional Services Contract with Rhino Construction Services, 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: Rhino Construction Services Attn. James Megorden 2672 Kempton Drive Los Alamitos, CA 90720 - 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 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 3rd day of March, 2004. ATTEST: BRUCE V. MALKENHORST, City Clerk LEONIS C. MALBU�G, Maydr - - 3 - 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. 8391, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Wednesday, March 3, 2004, and thereafter was duly signed by the Mayor of the City of Vernon. (SEAL) BRUCE V. MALKENHORST, City Clerk - 4 - EXHIBIT V4& j r I EQUIPMENT PURCHASE AND PROFESSIONAL SERVICES CONTRACT 2 3 THIS CONTRACT is made, entered into and executed in 4 duplicate originals, either copy of which may be considered and used 5 as the original hereof for all purposes, as of this 3rd day of March, 6 2004, in the City of Vernon, County of Los Angeles, California 7 BY AND BETWEEN THE CITY OF VERNON 8 (hereinafter referred to as "City") 9 4305 Santa Fe Avenue Vernon, CA 90058 10 AND RHINO CONSTRUCTION SERVICES 11 (hereinafter referred to as "Rhino") 12 2672 Kempton Drive Los Alamitos, CA 90720 13 14 RECITALS 15 WHEREAS, City is constructing the Malburg Generating Station 16 Combined Cycle Power Plant at 2715 E. 50th Street in the City of 17 Vernon (the "Malburg Project") for purposes of installing additional 18 generating capacity that is capable of yielding cost effective, 19 efficient and reliable electricity to meet its goals, while meeting 20 Federal, State and local environmental and siting requirements; and 21 WHEREAS, the Malburg Project team has determined that in 22 order to implement the 2670 renovation, it needs the services of an 23 electrical contractor to demolish existing lighting and provide and/or 24 install: (1) a 200 amp service connection for one new 200 amp panel 25 with all necessary conduit, wiring, breakers and terminations; (2) one 26 new 60 amp circuit with NEMA 3R disconnect switch on the roof and 27 necessary breaker, conduit, wiring and power terminations for new air 28 conditioning unit and provide conduit only for thermostat; (3) new I surface mounted fluorescent light fixtures with all necessary conduit, 2 wiring and devices for power and control of new lighting; (4) 3 necessary conduit, wiring and devices for three dedicated outlets; (5) 4 conduit and wiring for power connection to partitions; and (6) conduit 5 only for connection of voice data to partitions (hereinafter 6 collectively referred to as "Electrical Equipment"); and 7 WHEREAS, Rhino has performed services for the Malburg 8 Project in the past; and 9 WHEREAS, Rhino prepared a Proposal (RCS-4-74-REVISED) dated 10 February 2, 2004 to provide the Electrical Equipment (hereinafter 11 referred to as the "Proposal"), a copy of which is attached hereto as 12 Exhibit "A" and made a part hereof; and 13 WHEREAS, Rhino represents that it is qualified and capable 14 of furnishing the labor, materials and expertise necessary to provide 15 the equipment and perform the electrical services associated with the 16 installation of the equipment that the City requires as set forth in 17 the Proposal and is willing to do so on the terms and conditions set 18 forth below; and 19 WHEREAS, the City desires to enter into an agreement with 20 Rhino to provide for the labor and materials necessary for the 21 Electrical Equipment and Services. 22 NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET 23 FORTH HEREIN: 24 1. Scope of Services. 25 Rhino agrees to sell, deliver, install and test the 26 Electrical Equipment as set forth and described in detail in the 27 attached Exhibit "A." In the event of a conflict between the Proposal 28 and this Contract, the terms of this Contract shall prevail. - 2 - I The following items are not included in the scope of 2 services: permit fees, patch, paint, asbestos related work or delays, 3 disposal of demolition items, voice/data wiring or raceways for 4 surface mount locations, roof penetrations and patch. 5 2. Time of Performance. 6 Rhino's performance as identified herein shall commence upon 7 the full execution of this Contract and shall be completed no later 8 than four (4) weeks from the issuance of the City's Purchase Order. 9 If the installation of Electrical Equipment is not completed within 10 this time period, the City shall have the option of canceling this 11 Contract in order to proceed with the purchase and installation of the 12 equipment from another vendor. 13 3. Testing. 14 Rhino shall begin testing the equipment promptly after 15 installation. City's acceptance of the Electrical Equipment shall be 16 contingent upon the City's verification of the test results. In the 17 event that the test results reveal that the equipment does not meet 18 the City's preliminary specifications or the City identifies any 19 damage to the equipment, the City shall have the option of rejecting 20 the entire project, rejecting only the damaged equipment or accepting 21 the entire project. Rhino shall be responsible for all costs that may 22 be incurred in connection with the rejection and/or replacement of 23 damaged equipment. 24 4. Price. 25 The total amount to be paid to Rhino for the Electrical 26 Equipment performed under the Proposal shall not exceed the sum of 27 Twenty -Four Thousand Five Hundred Seventy -Five Dollars and No Cents 28 ($24,575.00), all costs included. - 3 - 1 5. Payment Terms. 2 City agrees to pay Rhino for the full amount due under the 3 Contract for the Electrical Equipment within thirty (30) days after 4 City's receipt, testing and acceptance of the Electrical Equipment and 5 the City's receipt of an invoice from Rhino. 6 6. Change and Extra Services. City reserves the right to 7 request changes in the equipment design, delivery dates, or additions 8 to or deletions from the equipment purchased from Rhino. All such 9 changes shall be incorporated in written change orders executed by 10 City and Rhino and shall specify the changes ordered and the 11 adjustment of prices, delivery schedules and warranties. Any 12 equipment or services added under this section shall be executed under 13 all applicable conditions of this Contract. No claim for additional 14 compensation or extension of time shall be recognized unless contained 15 in a duly executed change order. 16 7. Cancellation/Default. In the event that Rhino commits 17 a breach of a material condition of this Contract, City shall notify 18 Rhino in writing of said breach and if Rhino has not cured or begun 19 reasonable efforts to cure after fifteen (15) days of receipt of said 20 notice, and fails to diligently pursue corrective action, City shall 21 have the right to cancel this Contract for cause based on Rhino's 22 default. Rhino shall be responsible for any direct costs due to 23 City's re -procurement of the equivalent of the equipment or services 24 cancelled from Rhino. 25 8. Confidential Information. 26 A. Access to Confidential Information. City may 27 provide Rhino and/or its subcontractor with, or allow Rhino access to, 28 certain information not available to the public concerning City, or 4 - I businesses located in City. The information may include company 2 information, taxes, sales, value of assets, or other such information. 3 All such information shall be known as "Confidential Information"and 4 may not be used to circumvent the responsibility of either party to 5 this Contract. 6 B. No Disclosure. Except as expressly permitted, 7 Rhino and/or its subcontractor shall not disclose, permit the 8 disclosure of, release, disseminate, or transfer, whether orally or by 9 any other means, any part of such Confidential Information to any 10 other person or entity, whether corporate, governmental, or 11 individual, without the express prior written consent of an authorized 12 representative of City. Rhino and/or its subcontractor shall return 13 any written Confidential Information and all copies made of such items 14 to City upon City's written request, but in any event not later than 15 the date that Rhino has performed all services to be performed 16 pursuant to this Contract. Rhino hereby agrees that such Confidential 17 Information and any documents provided may be used by Rhino and/or its 18 subcontractor only as authorized by the City. Rhino shall include a 19 contract provision in its contract with subcontractors that binds the 20 subcontractors to this non -disclosure requirement. Rhino shall take 21 reasonable measures to avoid any disclosure of any such Confidential 22 Information to any unauthorized person. 23 C. Court Ordered Disclosure. Rhino shall immediately 24 notify City of any court order or subpoena requiring disclosure of 25 Confidential Information, and shall cooperate with City's legal 26 counsel in responding to any such order or subpoena. Rhino may only 27 disclose Confidential Information required to be disclosed pursuant to 28 court order or subpoena after legal counsel has exhausted any lawful - 5 - I and timely appeal or challenge. 2 D. Remedies. In addition to any other remedies that 3 it may have at law or in equity, City shall be entitled to a temporary 4 and permanent injunction by a court of competent jurisdiction against 5 any breach or threatened breach of the Confidential Information 6 provisions of this Agreement. Rhino acknowledges that in case of such 7 breach or threatened breach of said provisions, City would have no 8 adequate remedy at law. 9 9. Warranties. Rhino warrants title to the equipment 10 purchased hereunder and any part thereof to be free of any claim of 11 any security interest, lien or any encumbrance. Rhino also warrants 12 that the equipment will be delivered new and shall be free from 13 defects in material and workmanship. Rhino shall provide a one (1) 14 year labor and material warranty to begin upon City's acceptance of 15 the Electrical Equipment. In addition, all manufacturers' warranties, 16 and any other warranties made applicable by law, shall apply to City's 17 purchase of the materials and labor provided by Rhino. 18 10. Compliance with Laws. Rhino shall strictly observe and 19 comply with all applicable federal, state, and local laws, ordinances 20 and regulations governing this sale, including but not limited to any 21 permit or license requirements of the United States Department of 22 Commerce, as well as any laws of the United States of America. 23 11. Governing Law. The validity, interpretation and 24 performance of this Contract shall be controlled and construed under 25 the laws of the State of California. 26 12. Forum Selection. Any action brought relating to this 27 Contract shall be brought and held exclusively in a State Court in the 28 County of Los Angeles, California. - 6 - 1 13. Notices. Notices to the parties, unless otherwise 2 requested in writing, shall be sent to: 3 City: THE CITY OF VERNON ATTN: BRUCE V. MALKENHORST 4 CITY ADMINISTRATOR 4305 SANTA FE AVENUE 5 VERNON, CA 90058-0805 6 Rhino: RHINO CONSTRUCTION SERVICES ATTN: JAMES MEGORDEN 7 2672 KEMPTON DRIVE LOS ALAMITOS, CA 90720 8 9 14. General Provisions. 10 A. Independent Contractor. At all times during the 11 term of this Contract, Rhino shall be an independent contractor and 12 shall not be an employee of the City. The City shall have the right 13 to control Rhino only insofar as the results of Rhino's services 14 rendered pursuant to this Contract; however, the City shall not have 15 the right to control the means by which Rhino accomplishes services 16 rendered pursuant to the Contract except to the extent that such 17 services involve the use of City property or Confidential Information. 18 B. Rhino Not Agent. Except as the City may specify 19 in writing, Rhino shall have no authority, express or implied, to act 20 on behalf of the City in any capacity whatsoever as an agent. Rhino 21 shall have no authority, expressed or implied, pursuant to this 22 Contract to bind the City to any obligation whatsoever. 23 C. Indemnification. Rhino shall indemnify, defend, 24 protect and hold the City and its officers, agents and employees, free 25 and harmless from and against any and all claims, demands, losses, 26 damages, liabilities, fines, charges, penalties, orders, judgments and 27 all costs and expenses incurred in connection therewith, including 28 reasonable attorney's fees and costs of defense arising out of or - 7 - I attributable to the negligent or wrongful acts of Rhino or its 2 subcontractors, employees or agents in the performance of services 3 under this Contract, except to the extent arising from or caused by 4 the sole negligence or willful misconduct of the City, its officers, 5 agents or employees. 6 D. Insurance. Rhino agrees to provide insurance in 7 the amounts and forms specified in Exhibit "B," which is attached 8 hereto and made a part hereof by reference. Comparable coverage shall 9 be provided for each subcontractor used in the performance of this 10 Contract. Rhino shall submit to the City documentation indicating 11 compliance with these minimum requirements no less than one (1) day 12 prior to the beginning of performance under this Contract. Rhino shall 13 not commence performance of its services under this Contract until the 14 above insurance has been obtained and proof of insurance has been 15 filed with and approved by the City. 16 E. Assignment and Subcontracting Prohibited. No 17 party to this Contract may assign or subcontract any right or 18 obligation pursuant to this Contract except as especially and 19 specifically provided for in the Proposal or with the express written 20 consent of the other party. Any other attempted or purported 21 assignment of any right or obligation pursuant to this Contract shall 22 be void and of no effect. 23 F. Entire Agreement. This Contract constitutes the 24 complete and final expression of the agreement of the parties and is 25 intended as a complete and exclusive statement of the terms of their 26 agreement and supersedes all prior and contemporaneous offers, 27 promises, representations, negotiations, discussions, communications 28 and agreements which may have been made in connection with the subject - 8 - I matter hereof. All exhibits are incorporated by reference. Rhino 2 represents that in entering into this Contract it has not relied on 3 any previous representations or understandings of any kind or nature. 4 G. Partial Invalidity. Wherever possible, each 5 provision hereof will be interpreted in such manner as to be effective 6 and valid under applicable law, but in case any one or more of the 7 provisions contained herein will, for any reason, be held to be 8 invalid, illegal or unenforceable in any respect, such provision will 9 be ineffective to the extent, but only to the extent of such 10 invalidity, illegality or unenforceability without invalidating the 11 remainder of such provision or provisions or any other provision 12 hereof, unless such a construction would be unreasonable or contrary 13 to the parties' intent as expressed in this Contract. 14 H. Risk of Loss. Risk of loss or damage shall pass 15 to the City upon installation and acceptance by the City. 16 I. Benefit of Agreement. This Contract shall bind 17 and benefit the parties hereto and their heirs, successors, and 18 permitted assigns. 19 J. Waiver. Any waiver at any time by either party of 20 its rights with respect to a default under this Contract, or with 21 respect to any other matters arising in connection with this Contract, 22 shall not be deemed a waiver with respect to subsequent default or 23 other matter. 24 K. Amendment. All changes or modifications to this 25 Contract shall be in writing stating that it is an amendment to this 26 Contract and shall be signed by both parties or their duly authorized 27 agents. This Contract shall not be modified through course of 28 dealing, usage or trade. - 9 - I L. Force Majeure. Neither Party shall be considered 2 to be in default in any of its obligations under this Contract when a 3 failure of performance shall be due to an uncontrollable force. The 4 term "uncontrollable force" shall mean any cause beyond the control of 5 the party affected, including, but not restricted to, flood, 6 earthquake, storm, fire, lightening, epidemic, war, riot, civil 7 disturbance or disobedience, labor dispute, labor material shortage, 8 sabotage, federal, state, or municipal action, statute, ordinance, or 9 regulation, embargoes of the United States Government or any other 10 government, which by exercise of due diligence such party could not 11 reasonably have been expected to avoid and by exercise of due 12 diligence has been unable to overcome. Either party rendered unable 13 to fulfill any of its obligations under this Agreement by reason of an 14 uncontrollable force, shall give written notice within five (5) 15 business days of such fact to the other party and shall exercise due 16 diligence to remove such inability with all reasonable dispatch. 17 18 19 20 21 22 23 24 25 26 27 28 - 10 - Tj IN WITNESS WHEREOF, the parties have caused this Contract to 2 be executed by and through their authorized officers on the date, 3 month and year first written above. 4 CITY OF VERNON 5 By: LEONIS C. MALBURG, Mayor 6 ATTEST: 7 8 BRUCE V. MALKENHORST, City Clerk 9 APPROVED AS TO FORM: 10 ERIC T. FRESCH, City Attorney 11 R 0 CON JUCTION SERVICES 12 By: J- 131Title: PA 9 _ 14 By: 15 Title: 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT 0 - CIO 07 roan GENERAL BUILDING & ELECTRICAL CONTRACTOR 2672 Kempton Drive, Los Alamitos CA 90720 Date: February 2, 2004 Phone:562-773-9045 Fax: 562-594-7466 B, C-10, License: 812470 To: City of Vernon Attention Mr. Carlos Fandino 1-323-583-8811 FAX: 1-323-585-3119 PROPOSAL: RCS-4-74-REVISED: VERNON: 2670 Leonis renovation Overview: Provide electrical services at 2670 Leonis to include demolition of existing lighting, new 200 amp panel and feed to new A/C unit. Provide and install surface mounted fluorescent lights. Install electrical power for (3) dedicated outlets, power to partitions and conduit only for voice data at the partitions. Scope: 1. Provide and install 200 amp service connection for (1) new 200 amp, three phase, 4 wire, surface mount Panel Board with all necessary conduit, wiring, breakers and terminations. 2. Provide and install (1) new 60 amp circuit with NEMA 3R disconnect switch on the roof and necessary breaker, conduit, wiring, and power terminations for new A/C unit. Provide conduit only for thermostat. 3. Provide and install new surface mounted fluorescent light fixtures as discussed on job walk. Provide and install necessary conduit, wiring and devices for power and control of new lighting. 4. Provide and install necessary conduit, wiring and devices for (3) dedicated outlets. 5. Provide conduit and wiring for power connection to partitions. As indicated on job walk, single point of connection as partitions are furnished with power outlets and wiring. 6. Provide conduit only for connection of voice data to partitions. As. indicated on job walk, single points of connection as partitions are furnished with raceway for voice/data cabling. We propose to furnish required material and labor — complete in accordance with the drawing and job walk on Wednesday January 14, 2003 per the above scope items 1 through 6 for the sum of Twenty -Four Thousand, Five Hundred and Seventy -Five and 00/100 dollars ($24,575.00). Exclusions. Permit Fees, Patch, Paint, Asbestos related work or delays, Disposal of demolition items, Voice/Data wiring or raceways for surface mount locations, Roof Penetrations and patch, Rhino Construction Services thanks you for the opportunity to provide a proposal to quote this scope of work at Leonis Substation. The work as indicated above is bid at straight time and includes all incidental work to accomplish the scope of work as discussed. All materials guaranteed to be as specified as indicated above. All work performed by RHINO CONSTRUCTION SERVICES and SUBCONTRACTORS is to be performed in a workmanlike manner, per 1999 NEC, according to the specifications submitted and per standard practices. Any alteration or deviation from the above specifications involving extra costs may become an extra charge over and above the estimate, which will only be executed upon written change order. This proposal includes no agreements for contingency such as strikes, accidents, or delays beyond our control. Our workers are fully covered by Workmen's Compensation Insurance. If either party commences legal action to enforce its rights pursuant to this agreement the prevailing party in said legal action shall be entitled to recover reasonable attorney's fees and costs of litigation relating to said legal action as determined by a court of competent jurisdiction. Authorized Signature: NOTE: This proposal may be withdrawn by us if not accepted within 30 days. Continued on following sheet: Iflo EflnST41_U1T--10f1 GENERAL BUILDING & ELECTRICAL CONTRACTOR ACCEPTANCE OF PROPOSAL: PROPOSAL: RCS-4-74-REVISED Vernon: 2670 Leonis renovation The above -mentioned prices, specifications and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified. Payment for said work will be made as outlined above. Signature (of owner or authorized representative): Signature (of James Megorden — Rhino Construction Services) Date of acceptance: EXHIBIT 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 RXRTRTT R INSURANCE SCHEDULE Rhino shall provide proof of insurance, including a standard certificate of insurance, in at least the following amounts and coverage (combined single limit permitted): I. Coverage and Limits Hazards Automobile Liability Bodily jury Property Damage Each Person Each Accident Each Accident Owned Automobiles $ 500,000 $1,000,000 $ 500,000 Hired Automobiles $ 500,000 $1,000,000 $ 500,000 Non -Owned Automobiles $ 500,000 $1,000,000 $ 500,000 Workers' Compensation $ Statutory Employers' Liability $1,000,000 per employer II. Liabili General Liability $1,000,000 $2,000,000 $1,000,000 Premises Operations $1,000,000 $2,000,000 $1,000,000 Elevators (if applicable) $1,000,000 $2,000,000 $1,000,000 Independent Contractors $1,000,000 $2,000,000 $1,000,000 Products - Completed Operations $1,000,000 $2,000,000 $1,000,000 Contractual Liability $1,000,000 $2,000,000 $1,000,000 Umbrella Liability $2,000,000 $2,000,000 $2,000,000 a. The general liability policy shall contain the following special endorsements which shall be noted on or attached to the standard certificate of insurance: 1. An endorsement naming the City of Vernon, its officers, and employees as additional insureds under the policy. 2. An endorsement providing the City of Vernon thirty (30) days notice of cancellation or material reduction of coverage. 3. An endorsement providing coverage for all operations under this Agreement. 4. Such other endorsement as may be required by addendum hereto. b. In addition to the standard certificate of insurance, proof of liability coverage shall be furnished in the form checked below. X For each policy, a notarized letter from the underwriter or carrier certifying that the coverage and statements in the standard certificate of insurance (attached thereto) are true and correct and that the signator is an officer authorized to so certify. OR A copy of each policy certified by an officer of the underwriter or carrier and notarized. City will not accept the above proofs of insurance when certified by an insurance agent or broker. EXHIBIT "B" SUPPORTING DOCUMENTS 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 2711 2811 EQUIPMENT PURCHASE AND PROFESSIONAL SERVICES CONTRACT THIS CONTRACT is made, entered into and executed in duplicate originals, either copy of which may be considered and used as the original hereof for all purposes, as of this 3rd day of March, 2004, in the City of Vernon, County of Los Angeles, California BY AND BETWEEN AND RECITALS THE CITY OF VERNON (hereinafter referred to as %%City" ) 4305 Santa Fe Avenue Vernon, CA 90058 RHINO CONSTRUCTION SERVICES (hereinafter referred to as "Rhino") 2672 Kempton Drive Los Alamitos, CA 90720 WHEREAS, City is constructing the Malburg Generating Station Combined Cycle Power Plant at 2715 E. 50th Street in the City of Vernon (the "Malburg Project") for purposes of installing additional generating capacity that is capable of yielding cost effective, efficient and reliable electricity to meet its goals, while meeting Federal, State and local environmental and siting requirements; and WHEREAS, the Malburg Project team has determined that in order to implement the 2670 renovation, it needs the services of an electrical contractor to demolish existing lighting and provide and/or install: (1) a 200 amp service connection for one new 200 amp panel with all necessary conduit, wiring, breakers and terminations; (2) one new 60 amp circuit with NEMA 3R disconnect switch on the roof and necessary breaker, conduit, wiring and power terminations for new air conditioning unit and provide conduit only for thermostat; (3) new I surface mounted fluorescent light fixtures with all necessary conduit, 2 wiring and devices for power and control of new lighting; (4) 3 necessary conduit, wiring and devices for three dedicated outlets; (5) 4 conduit and wiring for power connection to partitions; and (6) conduit 5 only for connection of voice data to partitions (hereinafter 6 collectively referred to as "Electrical Equipment"); and 7 WHEREAS, Rhino has performed services for the Malburg 8 Project in the past; and 9 WHEREAS, Rhino prepared a Proposal (RCS-4-74-REVISED) dated 10 February 2, 2004 to provide the Electrical Equipment (hereinafter 11 referred to as the "Proposal"), a copy of which is attached hereto as 12 Exhibit "A" and made a part hereof; and 13 WHEREAS, Rhino represents that it is qualified and capable 14 of furnishing the labor, materials and expertise necessary to provide 15 the equipment and perform the electrical services associated with the 16 installation of the equipment that the City requires as set forth in 17 the Proposal and is willing to do so on the terms and conditions set 18 forth below; and 19 WHEREAS, the City desires to enter into an agreement with 20 Rhino to provide for the labor and materials necessary for the 21 Electrical Equipment and Services. 22 NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET 23 FORTH HEREIN: 24 1. Scope of Services. 25 Rhino agrees to sell, deliver, install and test the 26 Electrical Equipment as set forth and described in detail in the 27 attached Exhibit "A." In the event of a conflict between the Proposal 28 and this Contract, the terms of this Contract shall prevail. - 2 - The following items are not included in the scope of services: permit fees, patch, paint, asbestos related work or delays, disposal of demolition items, voice/data wiring or raceways for surface mount locations, roof penetrations and patch. 2. Time of Performance. Rhino's performance as identified herein shall commence upon the full execution of this Contract and shall be completed no later than four (4) weeks from the issuance of the City's Purchase Order. If the installation of Electrical Equipment is not completed within this time period, the City shall have the option of canceling this Contract in order to proceed with the purchase and installation of the equipment from another vendor. 3. Testing. Rhino shall begin testing the equipment promptly after installation. City's acceptance of the Electrical Equipment shall be contingent upon the City's verification of the test results. In the event that the test results reveal that the equipment does not meet the City's preliminary specifications or the City identifies any damage to the equipment, the City shall have the option of rejecting the entire project, rejecting only the damaged equipment or accepting the entire project. Rhino shall be responsible for all costs that may be incurred in connection with the rejection and/or replacement of damaged equipment. 4. Price. The total amount to be paid to Rhino for the Electrical Equipment performed under the Proposal shall not exceed the sum of Twenty -Four Thousand Five Hundred Seventy -Five Dollars and No Cents ($24,575.00), all costs included. - 3 - 1 5. Payment Terms. 2 City agrees to pay Rhino for the full amount due under the 3 Contract for the Electrical Equipment within thirty (30) days after 4 City's receipt, testing and acceptance of the Electrical Equipment and 5 the City's receipt of an invoice from Rhino. 6 6. Change and Extra Services. City reserves the right to 7 request changes in the equipment design, delivery dates, or additions 8 to or deletions from the equipment purchased from Rhino. All such 9 changes shall be incorporated in written change orders executed by 10 City and Rhino and shall specify the changes ordered and the 11 adjustment of prices, delivery schedules and warranties. Any 12 equipment or services added under this section shall be executed under 13 all applicable conditions of this Contract. No claim for additional 14 compensation or extension of time shall be recognized unless contained 15 in a duly executed change order. 16 7. Cancellation/Default. In the event that Rhino commits 17 a breach of a material condition of this Contract, City shall notify 18 Rhino in writing of said breach and if Rhino has not cured or begun 19 reasonable efforts to cure after fifteen (15) days of receipt of said 20 notice, and fails to diligently pursue corrective action, City shall 21 have the right to cancel this Contract for cause based on Rhino's 22 default. Rhino shall be responsible for any direct costs due to 23 City's re -procurement of the equivalent of the equipment or services 24 cancelled from Rhino. 25 8. Confidential Information. 26 A. Access to Confidential Information. City may 27 provide Rhino and/or its subcontractor with, or allow Rhino access to, 28 certain information not available to the public concerning City, or - 4 - I businesses located in City. The information may include company 21,� information, taxes, sales, value of assets, or other such information. 3 All such information shall be known as "Confidential Information" and 4 may not be used to circumvent the responsibility of either party to 5 this Contract. 6 B. No Disclosure. Except as expressly permitted, 7 Rhino and/or its subcontractor shall not disclose', permit the 8 disclosure of, release, disseminate, or transfer, whether orally or by 9 any other means, any part of such Confidential Information to any 10 other person or entity, whether corporate, governmental, or 11 individual, without the express prior written consent of an authorized 12 representative of City. Rhino and/or its subcontractor shall return 13 any written Confidential Information and all copies made of such items 14 to City upon City's written request, but in any event not later than 15 the date that Rhino has performed all services to be performed 16 pursuant to this Contract. Rhino hereby agrees that such Confidential 17 Information and any documents provided may be used by Rhino and/or its 18 subcontractor only as authorized by the City. Rhino shall include a 19 contract provision in its contract with subcontractors that binds the 20 subcontractors to this non -disclosure requirement. Rhino shall take 21 reasonable measures to avoid any disclosure of any such Confidential 22 Information to any unauthorized person. 23 C. Court Ordered Disclosure. Rhino shall immediately 24 notify City of any court order or subpoena requiring disclosure of 25 Confidential Information, and shall cooperate with City's legal 26 counsel in responding to any such order or subpoena. Rhino may only 27 disclose Confidential Information required to be disclosed pursuant to 28 court order or subpoena after legal counsel has exhausted any lawful - 5­ I and timely appeal or challenge. 2 D. Remedies. In addition to any other remedies that 3 it may have at law or in equity, City shall be entitled to a temporary 4 and permanent injunction by a court of competent jurisdiction against 5 any breach or threatened breach of the Confidential Information 6 provisions of this Agreement. Rhino acknowledges that in case of such 7 breach or threatened breach of said provisions, City would have no 8 adequate remedy at law. 9 9. Warranties. Rhino warrants title to the equipment 10 purchased hereunder and any part thereof to be free of any claim of 11 any security interest, lien or any encumbrance. Rhino also warrants 12 that the equipment will be delivered new and shall be free from 13 defects in material and workmanship. Rhino shall provide a one (1) 14 year labor and material warranty to begin upon City's acceptance of 15 the Electrical Equipment. In addition, all manufacturers' warranties, 16 and any other warranties made applicable by law, shall apply to City's 17 purchase of the materials and labor provided by Rhino. 18 10. Compliance with Laws. Rhino shall strictly observe and 19 comply with all applicable federal, state, and local laws, ordinances 20 and regulations governing this sale, including but not limited to any 21 permit or license requirements of the United States Department of 22 Commerce, as well as any laws of the United States of America. 23 11. Governing Law. The validity, interpretation and 24 performance of this Contract shall be controlled and construed under 25 the laws of the State of California. 26 12. Forum Selection. Any action brought relating to this 27 Contract shall be brought and held exclusively in a State Court in the 28 County of Los Angeles, California. - 6 - 13. Notices. Notices to the parties, unless otherwise requested in writing, shall be sent to: City: THE CITY OF VERNON ATTN: BRUCE V. MALKENHORST CITY ADMINISTRATOR 4305 SANTA FE AVENUE VERNON, CA 90058-0805 Rhino: RHINO CONSTRUCTION SERVICES ATTN: JAMES MEGORDEN 2672 KEMPTON DRIVE LOS ALAMITOS, CA 90720 14. General Provisions. A. Independent Contractor. At all times during the term of this Contract, Rhino shall be an independent contractor and shall not be an employee of the City. The City shall have the right to control Rhino only insofar as the results of Rhino's services .rendered,pursuant to this Contract; however, the City shall not have the right to control the means by which Rhino accomplishes services rendered pursuant to the Contract except to the extent that such services involve the use of City property or Confidential Information. B. Rhino Not Agent. Except as the City may specify in writing, Rhino shall have no authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent. Rhino shall have no authority, expressed or implied, pursuant to this Contract to bind the City to any obligation whatsoever. C. Indemnification. Rhino shall indemnify, defend, protect and hold the City and its officers, agents and employees, free and harmless from and against any and all claims, demands, losses, damages, liabilities, fines, charges, penalties, orders, judgments and all costs and expenses incurred in connection therewith, including reasonable attorney's fees and costs of defense arising out of or - 7 - I attributable to the negligent or wrongful acts of Rhino or its 2 subcontractors, employees or agents in the performance of services 3 under this Contract, except to the extent arising from or caused by 4 the sole negligence or willful misconduct of the City, its officers, 5 agents or employees. 6 D. Insurance. Rhino agrees to provide insurance in 71 the amounts and forms specified in Exhibit "B," which is attached 8 hereto and made a part hereof by reference. Comparable coverage shall 9 be provided for each subcontractor used in the performance of this 10 Contract. Rhino shall submit to the City documentation indicating 11 compliance with these minimum requirements no less than one (1) day 12 prior to the beginning of performance under this Contract. Rhino shall 13 not commence performance of its services under this Contract until the 14 above insurance has been obtained and proof of insurance has been 15 filed with and approved by the City. 16 E. Assignment and Subcontracting Prohibited. No 17 party to this Contract may assign or subcontract any right or 18 obligation pursuant to this Contract except as especially and 19 specifically provided for in the Proposal or with the express written 20 consent of the other party. Any other attempted or purported 21 assignment of any right or obligation pursuant to this Contract shall 22 be void and of no effect. 23 F. Entire Agreement. This Contract constitutes the 24 complete and final expression of the agreement of the parties and is 25 intended as a complete and exclusive statement of the terms of their 26 agreement and supersedes all prior and contemporaneous offers, 27 promises, representations, negotiations, discussions, communications 28 and agreements which may have been made in connection with the subject - 8 - a matter hereof. All exhibits are incorporated by reference. Rhino represents that in entering into this Contract it has not relied on any previous representations or understandings of any kind or nature. G. Partial Invalidity. Wherever possible, each provision hereof will be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein will, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision will be ineffective to the extent, but only to the extent of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or provisions or any other provision hereof, unless such a construction would be unreasonable or contrary to the parties' intent as expressed in this Contract. H. Risk of Loss. Risk of loss or damage shall pass to the City upon installation and acceptance by the City. I. Benefit of Agreement. This Contract shall bind and benefit the parties hereto and their heirs, successors, and permitted assigns. J. Waiver. Any waiver at any time by either party of its rights with respect to a default under this Contract, or with respect to any other matters arising in connection with this Contract, shall not be deemed a waiver with respect to subsequent default or other matter. K. Amendment. All changes or modifications to this Contract shall be in writing stating that it is an amendment to this Contract and shall be signed by both parties or their duly authorized agents. This Contract shall not be modified through course of dealing, usage or trade. - 9 - 1 L. Force Majeure. Neither Party shall be considered 2 to be in default in any of its obligations under this Contract when a 3 failure of performance shall be due to an uncontrollable force. The 4 term "uncontrollable force" shall mean any cause beyond the control of 5 the party affected, including, but not restricted to, flood, 6 earthquake, storm, fire, lightening, epidemic, war, riot, civil 7 disturbance or disobedience, labor dispute, labor material shortage, 8 sabotage, federal, state, or municipal action, statute, ordinance, or 9 regulation, embargoes of the United States Government or any other 10 government, which by exercise of due diligence such party could not 11 reasonably have been expected to avoid and by exercise of due 12 diligence has been unable to overcome. Either party rendered unable 13 to fulfill any of its obligations under this Agreement by reason of an 14 uncontrollable force, shall give written notice within five (5) 15 business days of such fact to the other party and shall exercise due 16 diligence to remove such inability with all reasonable dispatch. 17 18 19 20 21 22 23 24 25 26 27 28 - 10 - i 1 2 3 4 C 6 7 8 9 10 11 12 13i 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN WITNESS WHEREOF, the parties have caused this Contract to be executed by and through their authorized officers on the date, month and year first written above. CITY OF VERNON B ATTEST: EONIS C. MALBU G, Mayo BRUCE V. MALKENHORST, City Clerk APPROVETFRESCH TO ORM• 117, ERIC T. Cit Attorney By:L Title CON,�TkUCTION_ SERVICES l Lo GENERAL BUILDING & ELECTRICAL CONTRACTOR 2672 Kempton Drive, Los Alamitos CA 90720 Phone: 562-773-9045 Fax: 562-594-7466 Date: February 2, 2004 B, C-10, License: 812470 To: City of Vernon Attention Mr. Carlos Fandino 1-323-583-8811 FAX: 1-323-585-3119 PROPOSAL: RCS-4-74-REVISED: VERNON: 2670 Leonis renovation Overview: Provide electrical services at 2670 Leonis to include demolition of existing lighting, new 200 amp panel and feed to new A/C unit. Provide and install surface mounted fluorescent lights. Install electrical power for (3) dedicated outlets, power to partitions and conduit only for voice data at the partitions. Scope: 1. Provide and install 200 amp service connection for (1) new 200 amp, three phase, 4 wire, surface mount Panel Board with all necessary conduit, wiring, breakers and terminations. 2. Provide and install (1) new 60 amp circuit with NEMA 3R disconnect switch on the roof and necessary breaker, conduit, wiring, and power terminations for new A/C unit. Provide conduit only for thermostat. 3. Provide and install new surface mounted fluorescent light fixtures as discussed on job walk. Provide and install necessary conduit, wiring and devices for power and control of new lighting. 4. Provide and install necessary conduit, wiring and devices for (3) dedicated outlets. 5. Provide conduit and wiring for power connection to partitions. As indicated on job walk, single point of connection as partitions are furnished with power outlets and wiring. 6. Provide conduit only for connection of voice data to partitions. As indicated on job walk, single points of connection as partitions are furnished with raceway for voice/data cabling. We propose to furnish required material and labor — complete in accordance with the drawing and job walk on Wednesday January 14, 2003 per the above scope items 1 through 6 for the sum of Twenty -Four Thousand, Five Hundred and Seventy -Five and 00/100 dollars ($24,575.00). Exclusions; Permit Fees, Patch, Paint, Asbestos related work or delays, Disposal ofdemoliilon items, Voice/Data wiring or raceways for surface mount locations, Roof Penetrations and patch. Rhino Construction Services thanks you for the opportunity to provide a proposal to quote this scope of work at Leonis Substation. The work as indicated above is bid at straight time and includes all incidental work to accomplish the scope of work as discussed. All materials guaranteed to be as specified as indicated above. All work performed by RHINO CONSTRUCTION SERVICES and SUBCONTRACTORS is to be performed in a workmanlike manner, per 1999 NEC, according to the specifications submitted and per standard practices. Any alteration or deviation from the above specifications involving extra costs may become an extra charge over and above the estimate, which will only be executed upon written change order. This proposal includes no agreements for contingency such as strikes, accidents, or delays beyond our control. Our workers are fully covered by Workmen's Compensation Insurance. If either party commences legal action to enforce its rights pursuant to this agreement the prevailing party in said legal action shall be entitled to recover reasonable attorney's fees and costs of litigation relating to said legal action as determined by a court of competent jurisdiction. Authorized Signature: NOTE: This proposal may be withdrawn by us if not accepted within 30 days. Continued on following sheet: 4 LOMTR I GENERAL BUILDING & ELECTRICAL CONTRACTOR ACCEPTANCE OF PROPOSAL: PROPOSAL: RCS-4-74-REVISED Vernon: 2670 Leonis renovation The above -mentioned prices, specifications and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified. Payment for said work will be made as outlined above. Signature (of owner or authorized representative): Signature (of James Megorden — Rhino Construction Services) Date of acceptance: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT B INSURANCE SCHEDULE Rhino shall provide proof of insurance, including a standard certificate of insurance, in at least the following amounts and coverage (combined single limit permitted): I. Coverage and Limits Hazards Automobile Liability Bodily Injury Property Damage Each Person Each Accident Each Accident Owned Automobiles $ 500,000 $1,000,000 $ 500,000 Hired Automobiles $ 500,000 $1,000,000 $ 500,000 Non -Owned Automobiles $ 500,000 $1,000,000 $ 500,000 Workers' Compensation $ Statutory Employers' Liability $1.000.000 per employer 11 H. Liabili General Liability $1,000,000 $2,000,000 $1,000,000 Premises Operations $1,000,000 $2,000,000 $1,000,000 Elevators (if applicable) $1,000,000 $2,000,000 $1,000,000 Independent Contractors $1,000,000 $2,000,000 $1,000,000 Products - Completed Operations $1,000,000 $2,000,000 $1,000,000 Contractual Liability $1,000,000 $2,000,000 $1,000,000 Umbrella Liability $2,000,000 $2,000,000 $2,000,000 a. The general liability policy shall contain the following special endorsements which shall be noted on or attached to the standard certificate of insurance: 1. An endorsement naming the City of Vernon, its officers, and employees as additional insureds under the policy. 2. An endorsement providing the City of Vernon thirty (30) days notice of cancellation or material reduction of coverage. 3. An endorsement providing coverage for all operations under this Agreement. 4. Such other endorsement as may be required by addendum hereto. b. In addition to the standard certificate of insurance, proof of liability coverage shall be furnished in the form checked below. X For each policy, a notarized letter from the underwriter or carrier certifying that the coverage and statements in the standard certificate of insurance (attached thereto) are true and correct and that the signator is an officer authorized to so certify. OR A copy of each policy certified by an officer of the underwriter or carrier and notarized. City will not accept the above proofs of insurance when certified by an insurance agent or broker. EXHIBIT "B"