Loading...
Resolution No. 84061 2 3 4 5 RN rM 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 0M am RESOLUTION NO. 8406 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 the services of a vendor to provide ongoing electrical substation maintenance activities commencing on or about March 24, 2004 and ending June 30, 2004 (hereinafter referred to as "Substation Maintenance"); and WHEREAS, on or about March 1, 2004, Rhino Construction Services ("Rhino"), provided the City with a proposal to provide the Substation Maintenance for the Malburg Project; and WHEREAS, on March 23, 2004, the Finance Committee considered the recommendation of Bruce V. Malkenhorst, Director of Finance, dated March 18, 2004, to retain the services of Rhino to provide the Substation Maintenance for the Malburg Project; and WHEREAS, the City Council of the City of Vernon has determined that, pursuant to the provisions of subsection (a) of 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 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 land 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 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 24th day of March, 2004. LEONIS C. MAL URG, Mayor ATTEST: BRU E V. MALKENHORST, City Clerk - 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. 8406, was duly adopted by the City Council of the City of Vernon at an adjourned regular meeting of the City Council duly held on Wednesday, March 24, 2004, and thereafter was duly signed by the Mayor of the City of Vernon. (SEAL) BRUCE V. MALKENHORST, City Clerk - 3 - EXHIBIT V1, J � . 1 2 3 4 5 6 7 8 a 10 11 12 13 14 151 16 17 18 19 20 21 22 23 24 25 26 27 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 24th 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 it needs the services of a vendor to provide ongoing electrical substation maintenance activities during construction of the Malburg Project (hereinafter referred to as "Substation Maintenance"); and WHEREAS, Rhino has performed electrical services for the Malburg Project in the past; and WHEREAS, Rhino prepared a Proposal (RCS-4-80: Time & Material) dated March 23, 2004 to provide the Substation Maintenance I (hereinafter referred to as the "Proposal"), a copy of which is 2 attached hereto as Exhibit "A" and made a part hereof; and 3 WHEREAS, the Proposal would allow for the Substation 4 Maintenance throughout the fiscal year 2003/2004 at a cost not to 51 exceed Thirty Thousand Dollars ($30,000.00); and 6 WHEREAS, Rhino represents that it is qualified, properly 7 licensed and capable of furnishing the Substation Maintenance services 8 that the City requires as set forth in the Proposal and is willing to 9 do so on the terms and conditions set forth below; and 10 WHEREAS, the City desires to enter into an agreement with 11 Rhino to provide for the labor and materials necessary for the 12 Substation Maintenance services. 13 NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET 14 FORTH HEREIN: 15 1. Scope of Services. 16 Rhino agrees to provide all labor, material and equipment to 17 perform the Substation Maintenance on a time and material basis as set 181 forth and described in detail in the attached Exhibit "A." 19 Furthermore, Rhino shall provide the Substation Maintenance services 20 as specified herein and any other services requested by the City on an 21 as -needed basis, subject to the direction of the City, through its 22 staff. Such services shall include, but not be limited to the 23 following: the installation of #4 16KV capacitor (add capacitors to 24 existing rack); the replacement of #2 7KV capacitor bank leads; the 25 installation of sensitive ground conduits and wiring at the Leonis 26 Substation; the installation of conduit and cabling for miscellaneous 27 lighting and power needs at Vernon Substation; and the installation of 28 120 volt conduit and wire for heater at Leonis. It is understood and - 2 - I agreed that in the event of a conflict between the Proposal and this 2 Contract, the terms of this Contract shall prevail. 3 2. Time of Performance. 4 Rhino's performance as identified herein shall commence upon 5 the full execution of this Contract and shall continue until June 30, 6 2004, unless the Contract is otherwise terminated or extended. 7 3. Compensation. 8 The City will compensate Rhino for actual effort expended on 9 a time and materials basis in accordance with the Proposal. The 101 amount to be incurred for the Substation Maintenance services provided 11 by Rhino under this Contract shall not exceed the sum of Thirty 12 Thousand Dollars and No Cents ($30,00.00), unless this Contract is 13 amended or a Change Order agreed to by the parties. 14 Other expenses not identified in the Proposal may only be 15 billed if advance written approval has been obtained from the City 161 Administrator. 17 4. Method of Payment. 18 Rhino shall submit within thirty (30) days after the last 19 day of any month in which services have been performed or costs 20 incurred hereunder an invoice to the City. Invoices shall contain an 21 itemization of services rendered, the names, labor classifications, 22 the hours worked for each worker on a specific job, the equipment used 23 and the number of hours the equipment was used, other directly related 24 job expenses and subcontract charges incurred by Rhino and for which 25 compensation is due. Rhino shall be responsible for paying any 26 subcontractors used in the performance of this Contract. 27 Subcontractors shall not bill the City directly. 28 Payment of the invoice shall be made after acceptance and - 3 - I approval by the City within thirty (30) days of receipt. The City's 2 approval of the invoice shall not be unreasonably withheld. 3 5. Change and Extra Services. City reserves the right to 4 request changes in the services to be performed by Rhino. All such 5 changes shall be incorporated in written change orders executed by 6 City and Rhino and shall specify the changes ordered and the 7 adjustment of compensation and completion time required thereof. Any 8 equipment or services added to the scope of this Contract under this 9 section shall be executed under all applicable conditions of this 10 Contract. No claim for additional compensation or extension of time 11 shall be recognized unless contained in a duly executed change order. 12 6. Termination. This Contract may be terminated by the 13 City without cause on ten (10) days written notice to Rhino. In the 14 event of such termination by the City, Rhino shall be entitled to only 15 the compensation earned by it prior to the date the termination 16 notice, plus compensation for necessary work performed during the ten 17 (10) day notice period and authorized in'the termination notice. 18 7. Cancellation/Default. In the event that Rhino commits 19 a breach of a material condition of this Contract, City shall notify 20 Rhino in writing of said breach and if Rhino has not cured or begun 21 reasonable efforts to cure after fifteen (15) days of receipt of said 22 notice, and fails to diligently pursue corrective action, City shall 23 have the right to cancel this Contract for cause based on Rhino's 24 default. Rhino shall be responsible for any direct costs due to 25 City's re -procurement of the equivalent of the equipment or services 26 cancelled from Rhino. 27 8. Confidential Information. 28 A. Access to Confidential Information. City may - 4 - I provide Rhino and/or its subcontractor with, or allow Rhino access to, 2 certain information not available to the public concerning City, or 3 businesses located in City. The information may include company 4 information, taxes, sales, value of assets, or other such information. 5 All such information shall be known as "Confidential Information"and 6 may not be used to circumvent the responsibility of either party to 7 this Contract. 8 B. No Disclosure. Except as expressly permitted, 9 Rhino and/or its subcontractor shall not disclose, permit the 10 disclosure of, release, disseminate, or transfer, whether orally or by 11 any other means, any part of such Confidential Information to any 12 other person or entity, whether corporate, governmental, or 13 individual, without the express prior written consent of an authorized 14 representative of City. Rhino and/or its subcontractor shall return 15 any written Confidential Information and all copies made of such items 16 to City upon City's written request, but in any event not later than 17 the date that Rhino has performed all services to be performed 18 pursuant to this Contract. Rhino hereby agrees that such Confidential 19 Information and any documents provided may be used by Rhino and/or its 20 subcontractor only as authorized by the City. Rhino shall include a 21 contract provision in its contract with subcontractors that binds the 22 subcontractors to this non -disclosure requirement. Rhino shall take 23 reasonable measures to avoid any disclosure of any such Confidential 24 Information to any unauthorized person. 25 C. Court Ordered Disclosure. Rhino shall immediately 26 notify City of any court order or subpoena requiring disclosure of 27 Confidential Information, and shall cooperate with City's legal 28 counsel in responding to any such order or subpoena. Rhino may only - 5 - I disclose Confidential Information required to be disclosed pursuant to 2 court order or subpoena after legal counsel has exhausted any lawful 3 and timely appeal or challenge. 4 D. Remedies. In addition to any other remedies that 5 it may have at law or in equity, City shall be entitled to a temporary 6 and permanent injunction by a court of competent jurisdiction against 7 any breach or threatened breach of the Confidential Information 8 provisions of this Agreement. Rhino acknowledges that in case of such 9 breach or threatened breach of said provisions, City would have no 10 adequate remedy at law. 11 9. Warranties. Rhino warrants title to the equipment 12 purchased hereunder and any part thereof to be free of any claim of 13 any security interest, lien or any encumbrance. Rhino also warrants 14 that the equipment will be delivered new and shall be free from 15 defects in material and workmanship and will provide a one year labor 16 and material warranty. All manufacturers' warranties, any warranties 17 typically provided by Rhino and any other warranties made applicable 18 by law shall apply to the City's purchase of equipment and services 191 hereunder. 20 10. Compliance with Laws. Rhino shall strictly observe and 21 comply with all applicable federal, state, and local laws, ordinances 22 and regulations governing this sale, including but not limited to any 23 permit or license requirements of the United States Department of 24 Commerce, as well as any laws of the United States of America. 25 11. Governing Law. The validity, interpretation and 26 performance of this Contract shall be controlled and construed under 27 the laws of the State of California. 28 12. Forum Selection. Any action brought relating to this - 6 - I Contract shall be brought and held exclusively in a State Court in the 2 County of Los Angeles, California. 3 13. Notices. Notices to the parties, unless otherwise 4 requested in writing, shall be sent to: 5 City: THE CITY OF VERNON ATTN: BRUCE V. MALKENHORST 6 CITY ADMINISTRATOR 4305 SANTA FE AVENUE 7 VERNON, CA 90058-0805 8 Rhino: RHINO CONSTRUCTION SERVICES ATTN: JAMES MEGORDEN 9 2672 KEMPTON DRIVE LOS ALAMITOS, CA 90720 10 11 14. General Provisions. 12 A. Independent Contractor. At all times during the 13 term of this Contract, Rhino shall be an independent contractor and 14 shall not be an employee of the City. The City shall have the right 15 to control Rhino only insofar as the results of Rhino's services 16 rendered pursuant to this Contract; however, the City shall not have 17 the right to control the means by which Rhino accomplishes services 18 rendered pursuant to the Contract except to the extent that such 19 services involve the use of City property or Confidential Information. 20 B. Rhino Not Agent. Except as the City may specify 21 in writing, Rhino shall have no authority, express or implied, to act 22 on behalf of the City in any capacity whatsoever as an agent. Rhino 23 shall have no authority, expressed or implied, pursuant to this 24 Contract to bind the City to any obligation whatsoever. 25 C. Indemnification. Rhino shall indemnify, defend, 26 protect and hold the City and its officers, agents and employees, free 27 and harmless from and against any and all claims, demands, losses, 28 damages, liabilities, fines, charges, penalties, orders, judgments and - 7 - I all costs and expenses incurred in connection therewith, including 2 reasonable attorney's fees and costs of defense arising out of or 3 attributable to the negligent or wrongful acts of Rhino or its 4 subcontractors, employees or agents in the performance of services 5 under this Contract, except to the extent arising from or caused by 6 the sole negligence or willful misconduct of the City, its officers, 7 agents or employees. 8 D. Insurance. Rhino agrees to provide insurance in 9 the amounts and forms specified in Exhibit "B," which is attached 10 hereto and made a part hereof by reference. Comparable coverage shall 11 be provided for each subcontractor used in the performance of this 12 Contract. Rhino shall submit to the City documentation indicating 13 compliance with these minimum requirements no less than one (1) day 14 prior to the beginning of performance under this Contract. Rhino shall 15 not commence performance of its services under this Contract until the 16 above insurance has been obtained and proof of insurance has been 17 filed with and approved by the City. 18 E. Assignment and Subcontracting Prohibited. No 19 party to this Contract may assign or subcontract any right or 20 obligation pursuant to this Contract except as especially and 21 specifically provided for in the Proposal or with the express written 22 consent of the other party. Any other attempted or purported 23 assignment of any right or obligation pursuant to this Contract shall 24 be void and of no effect. 25 F. Entire Agreement. This Contract constitutes the 26 complete and final expression of the agreement of the parties and is 27 intended as a complete and exclusive statement of the terms of their 28 agreement and supersedes all prior and contemporaneous offers, - 8 - I promises, representations, negotiations, discussions, communications 2 and agreements which may have been made in connection with the subject 3 matter hereof. All exhibits are incorporated by reference. Rhino 4 represents that in entering into this Contract it has not relied on 5 any previous representations or understandings of any kind or nature. 6 G. Partial Invalidity. Wherever possible, each 7 provision hereof will be interpreted in such manner as to be effective 8 and valid under applicable law, but in case any one or more of the 9 provisions contained herein will, for any reason, be held to be 10 invalid, illegal or unenforceable in any respect, such provision will 11 be ineffective to the extent, but only to the extent of such 12 invalidity, illegality or unenforceability without invalidating the 13 remainder of such provision or provisions or any other provision 14 hereof, unless such a construction would be unreasonable or contrary 15 to the parties' intent as expressed in this Contract. 16 H. Risk of Loss. Risk of loss or damage shall pass 17 to the City upon installation and acceptance by the City. 18 I. Benefit of Agreement. This Contract shall bind 19 and benefit the parties hereto and their heirs, successors, and 20 permitted assigns. 21 J. Waiver. Any waiver at any time by either party of 22 its rights with respect to a default under this Contract, or with 23 respect to any other matters arising in connection with this Contract, 24 shall not be deemed a waiver with respect to subsequent default or 25 other matter. 26 K. Amendment. All changes or modifications to this 27 Contract shall be in writing stating that it is an amendment to this 28 Contract and shall be signed by both parties or their duly authorized - 9 - I agents. This Contract shall not be modified through course of 2 dealing, usage or trade. 3 L. Force Majeure. Neither Party shall be considered 4 to be in default in any of its obligations under this Contract when a 5 failure of performance shall be due to an uncontrollable force. The 6 term "uncontrollable force" shall mean any cause beyond the control of 7 the party affected, including, but not restricted to, flood, 8 earthquake, storm, fire, lightening, epidemic, war, riot, civil 9 disturbance or disobedience, labor dispute, labor material shortage, 10 sabotage, federal, state, or municipal action, statute, ordinance, or 11 regulation, embargoes of the United States Government or any other 12 government, which by exercise of due diligence such party could not 13 reasonably have been expected to avoid and by exercise of.due 14 diligence has been unable to overcome. Either party rendered unable 15 to fulfill any of its obligations under this Agreement by reason of an 16 uncontrollable force, shall give written notice within five (5) 17 business days of such fact to the other party and shall exercise due 18 diligence to remove such inability with all reasonable dispatch. 19 20 21 22 23 24 25 26 27 28 - 10 - I 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: 6 LEONIS C. MALBURG, Mayor ATTEST: 7 8 BRUCE V. MALKENHORST, City Clerk 9 APPROVED AS TO FORM: 10 ERIC T. FRESCH, City Attorney 11 RHINO CONSTRUCTION SERVICES 12 By: 13 Title: P�t Kj 14 � By: 15 Title 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT 0 "fliflff flansT�RucT`ton Elm GENERAL BUILDING & ELECTRICAL CONTRACTOR 2672 Kempton Drive, Los Alamitos CA 90720 Date: March 23, 2004 Phone:562-773-9045 Fax: 562-594-7466 B, C-10, License: 812470 To: City of Vernon Attention Mr. Manuel Garcia 1-323-583-8811 FAX: 1-323-585-1425 PROPOSAL: RCS-4-80: Time & Material -REV Overview: Provide Time & Material Services as needed and or requested. Scope: 1. Provide all Labor, Material and Equipment with daily time sheets, signed or initialed listing provided labor, materials, equipment and accessories installed as requested or required. 2. Services available, Signatory Inside Wireman Electricians, Maintenance Electricians and Substation Electricians, as indicated on the following Matrix. 3. Laborers and General Contracting Services can be provided, rates to be determined if requested. 4. Straight time: 8 hour work, Monday through Friday between the hours of 6:00 am and 6:00 pm with % hour lunch period between 10:00 am and 1:30 pm, all work performed outside of the stated hours will be paid at the overtime rate. 5. Overtime on all types of construction shall be paid at time and one-half the regular straight time rate for hours worked. The overtime rate shall be double the straight time rate of pay on Sunday, the following holidays and after twelve hours on any day. (Memorial Day, 4t' of July, Labor Day, Veterans Day Nov. 11, Thanksgiving Day, Day after Thanksgiving, Christmas Day and New Years Day). If any of these days falls on Sunday, the following Monday shall be considered the holiday, if Christmas or New Years falls on Saturday, the preceding Friday will be considered the Holiday. 6. All overtime prior to normal shift will be paid at double the straight time rate of pay. 7. Any employee working non-scheduled overtime and or call out shall be paid double the straight time rate of pay with a two hour minimum. 8. Any employee working shall be paid 4 hour minimum for 1st through 4t' hour worked and 8 hours minimum for 5t' through the 8t' hour worked. Straight Time Rates Overtime Rates Double Time Rates future raise future raise Inside Wireman 7/26/2004 1/31/2005 General Foreman $70.00 per hour $96.00 per hour $122.00 per hour increase $ 1.04 increase $ 1.10 Foreman $65.00 per hour $88.00 per hour $112.00 per hour increase $ 0.96 increase $ 1.00 Journeyman $60.00 per hour $82.00 per hour $102.00 per hour increase $ 0.85 increase $ 0.90 1 st step Apprentice $40.00 per hour $50.00 per hour $60.00 per hour increase $ 0.85 increase $ 0.90 2nd step Apprentice $50.00 per hour $65.00 per hour $80.00 per hour increase $ 0.85 increase $ 0.90 9: Service Truck $20.00 per hour, Foreman Pick -Up Truck $15 per hour. 10. All material will be billed + tax and 15% mark up. no onrrucTion GENERAL BUILDING & ELECTRICAL CONTRACTOR. We propose to furnish required material and labor on a time and material basis — complete in accordance with the above scope items 1 through 10 as indicated. Rhino Construction Services thanks you for the opportunity to provide a proposal to quote this scope of work for the City of Vernon. 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 I e al acMX..,= determinof competent jurisdiction. Authorized Signature: NOTE: This proposal may b wi drawn by us if nU accepted within 30 days. ACCEPTANCE OF PROPOSAL: PROPOSAL: RCS-4-80-Time and Material -REV 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 i � • s I EXHIBIT B 2 INSURANCE SCHEDULE 3 Rhino 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 I jury Propegy Damage 6 Hazards Each Person Each Accident Each Accident 7 Automobile Liability Owned Automobiles $ 500,000 $1,000,000 $ 500,000 8 Hired Automobiles $ 500,000 $1,000,000 $ 500,000 Non -Owned Automobiles $ 500,000 $1,000,000 $ 500,000 9 Workers' Compensation $ Statutory 10 Employers' Liability $1,000,000 per employer 11 U. Liabili 12 General Liability $1,000,000 $2,000,000 $1,000,000 13 Premises Operations $1,000,000 $2,000,000 $1,000,000 Elevators (if applicable) $1,000,000 $2,000,000 $1,000,000 14 Independent Contractors $1,000,000 $2,000,000 $1,000,000 Products - Completed Operations $1,000,000 $2,000,000 $1,000,000 15 Contractual Liability $1,000,000 $2 000,000 $1,000,000 16 Umbrella Liability $2,000,000 $2,000,000 $2,000,000 17 a. The general liability policy shall contain the following special endorsements which shall be noted on or attached to the standard certificate of insurance: 18 19 1. An endorsement naming the City of Vernon, its officers, and employees as additional insureds under the policy. 20 2. An endorsement providing the City of Vernon thirty (30) days notice of cancellation or material reduction of coverage. 21 3. An endorsement providing coverage for all operations under this Agreement. 22 4. Such other endorsement as may be required by addendum hereto. 23 b. In addition to the standard .certificate of insurance, proof of liability coverage shall be furnished in the form checked below. 24 X For each policy, a notarized letter from the underwriter or carrier certifying that the coverage and 25 statements in the standard certificate of insurance (attached thereto) are true and correct and that 26 the signator is an officer authorized to so certify. OR 27 A copy of each policy certified by an officer of the underwriter or carrier and notarized. 28 City will not accept the above proofs of insurance when certified by an insurance agent or broker. EXHIBIT "B" SUPPORTING DOCUMENTS t 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 24th day of March, 2004, in the City of Vernon, County of Los Angeles, California BY AND BETWEEN THE CITY OF VERNON (hereinafter referred to as "city") 4305 Santa Fe Avenue Vernon, CA 90058 AND RHINO CONSTRUCTION SERVICES (hereinafter referred to as "Rhino") 2672 Kempton Drive Los Alamitos, CA.90720 RECITALS 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 it needs the services of a vendor to provide ongoing electrical substation maintenance activities during construction of the Malburg Project (hereinafter referred to as "Substation Maintenance"); and WHEREAS, Rhino has performed electrical services for the Malburg Project in the past; and WHEREAS, Rhino prepared a Proposal (RCS-4-80: Time & Material) dated March 23, 2004 to provide the Substation Maintenance I (hereinafter referred to as the "Proposal"), a copy of which is 2 attached hereto as Exhibit "A" and made a part hereof; and 3 WHEREAS, the Proposal would allow for the Substation 4 Maintenance throughout the fiscal year 2003/2004 at a cost not to 5 exceed Thirty Thousand Dollars ($30,000.00); and 6 WHEREAS, Rhino represents that it is qualified, properly 7 licensed and capable of furnishing the Substation Maintenance services 8 that the City requires as set forth in the Proposal and is willing to 9 do so on the terms and conditions set forth below; and 10 WHEREAS, the City desires to enter into an agreement with 11 Rhino to provide for the labor and materials necessary for the 12 Substation Maintenance services. 13 NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET 14 FORTH HEREIN: 15 1. Scope of Services. 16 Rhino agrees to provide all labor, material and equipment to 17 perform the Substation Maintenance on a time and material basis as set 18 forth and described in detail in the attached Exhibit "A." 19 Furthermore, Rhino shall provide the Substation Maintenance services 20 as specified herein and any other services requested by the City on an 21 as -needed basis, subject to the direction of the City, through its 22 staff. Such services shall include, but not be limited to the 23 following: the installation of #4 16KV capacitor (add capacitors to 24 existing rack); the replacement of #2 7KV capacitor bank leads; the 25 installation of sensitive ground conduits and wiring at the Leonis 26 Substation; the installation of conduit and cabling for miscellaneous 27 lighting and power needs at Vernon Substation; and the installation of 28 120 volt conduit and wire for heater at Leonis. It is understood and - 2 - I agreed that in the event of a conflict between the Proposal and this 2 Contract, the terms of this Contract shall prevail. 3 2. Time of Performance. 4 Rhino's performance as identified herein shall commence upon 5 the full execution of this Contract and shall continue until June 30, 6 2004, unless the Contract is otherwise terminated or extended. 7 3. Compensation. 8 The City will compensate Rhino for actual effort expended on 9 a time and materials basis in accordance with the Proposal. The 10 amount to be incurred for the Substation Maintenance services provided 11 by Rhino under this Contract shall not exceed the sum of Thirty 12 Thousand Dollars and No Cents ($30,00.00), unless this Contract is 13 amended or a Change Order agreed to by the parties. 14 Other expenses not identified in the Proposal may only be 15 billed if advance written approval has been obtained from the City 16 Administrator. 17 4. Method of Payment. 18 Rhino shall submit within thirty (30) days after the last 19 day of any month in which services have been performed or costs 20 incurred hereunder an invoice to the City. Invoices shall contain an 21 itemization of services rendered, the names, labor classifications, 22 the hours worked for each worker on a specific job, the equipment used 23 and the number of hours the equipment was used, other directly related 24 job expenses and subcontract charges incurred by Rhino and for which 25 compensation is due. Rhino shall be responsible for paying any 26 subcontractors used in the performance of this Contract. 27 Subcontractors shall not bill the City directly. 28 Payment of the invoice shall be made after acceptance and - 3 - I approval by the City within thirty (30) days of receipt. The City's 2 approval of the invoice shall not be unreasonably withheld. 3 5. Change and Extra Services. City reserves the right to 4 request changes in the services to be performed by Rhino. All such 5 changes shall be incorporated in written change orders executed by 6 City and Rhino and shall specify the changes ordered and the 7 adjustment of compensation and completion time required thereof. Any 8 equipment or services added to the scope of this Contract under this 91 section shall be executed under all applicable conditions of this 10 Contract. No claim for additional compensation or extension of time 11 shall be recognized unless contained in a duly executed change order. 12 6. Termination. This Contract may be terminated by the 13 City without cause on ten (10) days written notice to Rhino. In the 14 event of -such termination by the City, Rhino shall be entitled to only 15 the compensation earned by it prior to the date the termination 16 notice, plus compensation for necessary work performed during the ten 17 (10) day notice period and authorized in the termination notice. 18 7. Cancellation/Default. In the event that Rhino commits 19 a breach of a material condition of this Contract, City shall notify 20 Rhino in writing of said breach and if Rhino has not cured or begun 21 reasonable efforts to cure after fifteen (15) days of receipt of said 22 notice, and fails to diligently pursue corrective action, City shall 231 have the right to cancel this Contract for cause based on Rhino's 24 default. Rhino shall be responsible for any direct costs due to 25 City's re -procurement of the equivalent of the equipment or services 26 cancelled from Rhino. 27 8. Confidential Information. 28 A. Access to Confidential Information. City may - 4 - I provide Rhino and/or its subcontractor with, or allow Rhino access to, 2 certain information not available to the public concerning City, or 3 businesses located in City. The information may include company 4 information, taxes, sales, value of assets, or other such information. 5 All such information shall be known as "Confidential Information"and 6 may not be used to circumvent the responsibility of either party to 71 this Contract. 8 B. No Disclosure. Except as expressly permitted, 9 Rhino and/or its subcontractor shall not disclose, permit the 10 disclosure of, release, disseminate, or transfer, whether orally or by 11 any other means, any part of such Confidential Information to any 12 other person or entity, whether corporate, governmental, or 13 individual, without the express prior written consent of an authorized 14 representative of City. Rhino and/or its subcontractor shall return 15 any written Confidential Information and all copies made of such items 16 to City upon City's written request, but in any event not later than 17 the date that Rhino has performed all services to be performed 18 pursuant to this Contract. Rhino hereby agrees that such Confidential 19 Information and any documents provided may be used by Rhino and/or its 20 subcontractor only as authorized by the City. Rhino shall include a 21 contract provision in its contract with subcontractors that binds the 22 subcontractors to this non -disclosure requirement. Rhino shall take 23 reasonable measures to avoid any disclosure of any such Confidential 24 Information to any unauthorized person. 25 C. Court Ordered Disclosure. Rhino shall immediately 26 notify City of any court order or subpoena requiring disclosure of 27 Confidential Information, and shall cooperate with City's legal 28counsel in responding to any such order or subpoena. Rhino may only - 5 - I disclose Confidential Information required to be disclosed pursuant to 2 court order or subpoena after legal counsel has exhausted any lawful 3 and timely appeal or challenge. 4 D. Remedies. In addition to any other remedies that 5 it may have at law or in equity, City shall be entitled to a temporary 6 and permanent injunction by a court of competent jurisdiction against 71 any breach or threatened breach of the Confidential Information 8 provisions of this Agreement. Rhino acknowledges that'in case of such 9 breach or threatened breach of said provisions, City would have no 10 adequate remedy at law. 11 9. Warranties. Rhino warrants title to the equipment 12 purchased hereunder and any part thereof to be free of any claim of 13 any security interest, lien or any encumbrance. Rhino also warrants 14 that the equipment will be delivered new and shall be free from 15 defects in material and workmanship and will provide a one year labor 16 and material warranty. All manufacturers' warranties, any warranties 17 typically provided by Rhino and any other warranties made applicable 18 by law shall apply to the City's purchase of equipment and services 19 hereunder. 20 10. Compliance with Laws. Rhino shall strictly observe and 21 comply with all applicable federal, state, and local laws, ordinances 22 and regulations governing this sale, including but not limited to any 231 permit or license requirements of the United States Department of 24 Commerce, as well as any laws of the United States of America. 25 11. Governing Law. The validity, interpretation and 26 performance of this Contract shall be controlled and construed under 27 the laws of the State of California. 28 12. Forum Selection. Any action brought relating to this - 6 - I Contract shall be brought and held exclusively in a State Court in the 2 County of Los Angeles, California. 3 13. Notices. Notices to the parties, unless otherwise 4 requested in writing, shall be sent to: 5 City: THE CITY OF VERNON ATTN: BRUCE V. MALKENHORST 6 CITY ADMINISTRATOR 4305 SANTA FE AVENUE 7 VERNON, CA 90058-0805 8 Rhino: RHINO CONSTRUCTION SERVICES ATTN: JAMES MEGORDEN 9 2672 KEMPTON DRIVE LOS ALAMITOS, CA 90720 10 11 14. General Provisions. 12 A. Independent Contractor. At all times during the 13 term of this Contract, Rhino shall be an independent contractor and 14 shall not be an employee of the City. The City shall have the right 15 to control Rhino only insofar as the results of Rhino's services 16 rendered pursuant to this Contract; however, the City shall not have 17 the right to control the means by which Rhino accomplishes services 18 rendered pursuant to the Contract except to the extent that such 19 services involve the use of City property or Confidential Information. 20 B. Rhino Not Agent. Except as the City may specify 21 in writing, Rhino shall have no authority, express or implied, to act 22 on behalf of the City in any capacity whatsoever as an agent. Rhino 23 shall have no authority, expressed or implied, pursuant to this 24 Contract to bind the City to any obligation whatsoever. 25 C. Indemnification. Rhino shall indemnify, defend, 261 protect and hold the City and its officers, agents and employees, free 27 and harmless from and against any and all claims, demands, losses, 28 damages, liabilities, fines, charges, penalties, orders, judgments and - 7 - I all costs and expenses incurred in connection therewith, including 2 reasonable attorney's fees and costs of defense arising out of or 3 attributable to the negligent or wrongful acts of Rhino or its 4 subcontractors, employees or agents in the performance of services 5 under this Contract, except to the extent arising from or caused by 6 the sole negligence or willful misconduct of the City, its officers, 7 agents or employees. 8 D. Insurance. Rhino agrees to provide insurance in 9 the amounts and forms specified in Exhibit "B," which is attached 10 hereto and made a part hereof by reference. Comparable coverage shall 11 be provided for each subcontractor used in the performance of this 12 Contract. Rhino shall submit to the City documentation indicating 13 compliance with these minimum requirements no less than one (1) day 14 prior to the beginning of performance under this Contract. Rhino shall 15 not commence performance of its services under this Contract until the 16 above insurance has been obtained and proof of insurance has been 17 filed with and approved by the City. 18 E. Assignment and Subcontracting Prohibited. No 191 party to this Contract may assign or subcontract any right or 20 obligation pursuant to this Contract except as especially and 21 specifically provided for in the Proposal or with the express written 22 consent of the other party. Any other attempted or purported 23 assignment of any right or obligation pursuant to this Contract shall 24 be void and of no effect. 25 F. Entire Agreement. This Contract constitutes the 26 complete and final expression of the agreement of the parties and is 27 intended as a complete and exclusive statement of the terms of their 281 agreement and supersedes all prior and contemporaneous offers, 8 - I promises, representations, negotiations, discussions, communications 2 and agreements which may have been made in connection with the subject 3 matter hereof. All exhibits are incorporated by reference. Rhino 4 represents that in entering into this Contract it has not relied on 5 any previous representations or understandings of any kind or nature. 6 G. Partial Invalidity. Wherever possible, each 7 provision hereof will be interpreted in such manner as to be effective 8 and valid under applicable law, but in case any one or more of the 9 provisions contained herein will, for any reason, be held to be 10 invalid, illegal or unenforceable in any respect, such provision will 11 be ineffective to the extent, but only to the extent of such 12 invalidity, illegality or unenforceability without invalidating the 13 remainder of such provision or provisions or any other provision 14 hereof, unless such a construction would be unreasonable or contrary 15 to the parties' intent as expressed in this Contract. 16 H. Risk of Loss. Risk of loss or damage shall pass 17 to the City upon installation and acceptance by the City. 18 I. Benefit of A reement. This Contract shall bind 19 and benefit the parties hereto and their heirs, successors, and 20 permitted assigns. 21 J. Waiver. Any waiver at any time by either party of 22 its rights with respect to a default under this Contract, or with 23 respect to any other matters arising in connection with this Contract, 241 shall not be deemed a waiver with respect to subsequent default or 25 other matter. 26 K. Amendment. All changes or modifications to this 27 Contract shall be in writing stating that it is an amendment to this 28 Contract and shall be signed by both parties or their duly authorized - 9 - I agents. This Contract shall not be modified through course of 2 dealing, usage or trade. 3 L. Force Majeure. Neither Party shall be considered 4 to be in default in any of its obligations under this Contract when a 5 failure of performance shall be due to an uncontrollable force. The 6 term "uncontrollable force" shall mean any cause beyond the control of 7 the party affected, including, but not restricted to, flood, 8 earthquake, storm, fire, lightening, epidemic, war, riot, civil 9 disturbance or disobedience, labor dispute, labor material shortage, 10 sabotage, federal, state, or municipal action, statute, ordinance, or 11 regulation, embargoes of the United States Government or any other 12 government, which by exercise of due diligence such party could not 13 reasonably have been expected to avoid and by exercise of due 14 diligence has been unable to overcome. Either party rendered unable 15 to fulfill any of its obligations under this Agreement by reason of an 16 uncontrollable force, shall give written notice within five (5) 17 business days of such fact to the other party and shall exercise due 18 diligence to remove such inability with all reasonable dispatch. 19 20 21 22 23 24 25 26 27 28 - 10 - 2 3 d 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 Contract to be executed by and through their authorized officers on the date, month and year first written above. CITY OF VERNON By: EONIS C. MALBU G, Mayo ATTEST: / Lam'" BRUCE V. MALKENHORST, City Clerk APPROVED AS TO FORM: 5--- �: ERIC CH7Ci<tyt�torney RHINO CONSTRUCTION SERVICES By: Ob ti 1.: GENERAL BUILDING & ELECTRICAL CONTRACTOR 2672 Kempton Drive, Los Alamitos CA 90720 Date: March 23, 2004 Phone:562-773-9045 Fax: 562-594-7466 B, C-10, License: 812470 To: City of Vernon Attention Mr. Manuel Garcia 1-323-583-8811 FAX: 1-323-585-1425 PROPOSAL: RCS-4-80: Time & Material -REV Overview: Provide Time & Material Services as needed and or requested. Scope: 1. Provide all Labor, Material and Equipment with daily time sheets, signed or initialed listing provided labor, materials, equipment and accessories installed as requested or required. 2. Services available, Signatory Inside Wireman Electricians, Maintenance Electricians and Substation Electricians, as indicated on the following Matrix. 3. Laborers and General Contracting Services can be provided, rates to be determined if requested. 4. Straight time: 8 hour work, Monday through Friday between the hours of 6:00 am and 6:00 pm with 'h hour lunch period between 10:00 am and 1:30 pm, all work performed outside of the stated hours will be paid at the overtime rate. 5. Overtime on all types of construction shall be paid at time and one-half the regular straight time rate for hours worked. The overtime rate shall be double the straight time rate of pay on Sunday, the following holidays and after twelve hours on any day. (Memorial Day, 4th of July, Labor Day, Veterans Day Nov. 11, Thanksgiving Day, Day after Thanksgiving, Christmas Day and New Years Day). If any of these days falls on Sunday, the following Monday shall be considered the holiday, if Christmas or New Years falls on Saturday, the preceding Friday will be considered the Holiday. 6. All overtime prior to normal shift will be paid at double the straight time rate of pay. 7. Any employee working non-scheduled overtime and or call out shall be paid double the straight time rate of pay with a two hour minimum. 8. Any employee working shall be paid 4 hour minimum for 1st through 4th hour worked and 8 hours minimum for 5th through the 8th hour worked. Straight Time Rates Overtime Rates Double Time Rates future raise future raise Inside Wireman 7/26/2004 1/31/2005 General Foreman $70.00 per hour $96.00 per hour $122.00 per hour increase $ 1.04 increase $1.10 Foreman $65.00 per hour $88.00 per hour $112.00 per hour increase $ 0.96 increase $ 1.00 Journeyman $60.00 per hour $82.00 per hour $102.00 per hour increase $ 0.85 increase $ 0.90 1 st step Apprentice $40.00 per hour $50.00 per hour $60.00 per hour increase $ 0.85 increase $ 0.90 2nd step Apprentice $50.00 per hour $65.00 per hour $80.00 per hour increase $ 0.85 increase $ 0.90 9. Service Truck $20.00 per hour, Foreman Pick -Up Truck $15 per hour. 10. All material will be billed + tax and 15% mark up. r In i i S • ++ i } v e Rr xT. Y w 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 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' Comaensation $ Statutory Employers' Liability $1,000,000 per employer 11. 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"