Resolution No. 84921
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RESOLUTION NO. 8492
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN EQUIPMENT PURCHASE CONTRACT BY AND BETWEEN THE
CITY OF VERNON AND MYERS POWER PRODUCTS, INC. 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, the City has determined that it needs to purchase
one (1) 15KV N-1 Metalclad Switchgear, including circuit breakers,
transformers and associated equipment (collectively referred to as the
"Equipment"), to upgrade the existing Vernon Substation 7KV Switchgear
and circuits to enable the City to integrate the Malburg Project into
the Vernon electric system; and
WHEREAS, Myers Power Products, Inc. ("Myers") submitted a
proposal dated April 6, 2004, that includes a description of the
proposed Equipment; and
WHEREAS, the City has determined that Myers possesses the
technical knowledge and expertise to furnish the Equipment to
facilitate the Malburg Project; and
WHEREAS, on July 13, 2004, the Finance Committee considered
11the recommendation of Bruce V. Malkenhorst, Director of Finance, dated
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July 8, 2004, to purchase the Equipment from Myers to facilitate the
construction and operation of the 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 Myers.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the Equipment Purchase Contract with Myers Power Products,
Inc., a copy of which is attached hereto as Exhibit A and incorporated
by reference.
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:
Myers Power Products, Inc.
Attn. Diana Grootonk, CEO
725 E. Harrison Street
Corona, CA 92679
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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 4th day of August, 2004.
ATTEST:
BRUCE V. MALKENHORST, City Clerk
LEONIS C. MA BURG, rMayor
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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.
8492, was duly adopted by the City Council of the City of Vernon at a
regular meeting of the City Council duly held on Wednesday, August 4,
2004, and thereafter was duly signed by the Mayor of the City of
Vernon.
(SEAL)
..-$, /ZlIL-
BRUCE V. MALKENHORST, City Clerk
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EXHIBIT
0
EQUIPMENT PURCHASE CONTRACT
THIS 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 day of August, 2004, in the City of Vernon, County of Los Angeles,
State of California
BY AND BETWEEN THE CITY OF VERNON
(hereinafter referred to as "City")
4305 Santa Fe Avenue
Vernon, CA 90058
AND MYERS POWER PRODUCTS, INC.
(hereinafter referred to as "Myers")
725 E. Harrison Street
Corona, CA 92679
RECITALS
WHEREAS, the City is constructing the Malburg Generating Station Combined
Cycle Power Plant at 2715 E. 50t' Street in the City of Vernon (the "Malburg Project") for
purposes of installing additional generating capacity; and
WHEREAS, the City has determined that it is necessary to purchase one (1) 15
KV N-1 Metalclad Switchgear, including circuit breakers, transformers and associated equipment
(collectively, the "Equipment") to upgrade the existing Vernon Substation 7KV Switchgear and
circuits, to enable the City to integrate the Malburg Project into the Vernon electric system; and
WHEREAS, Myers has prepared a proposal dated on or about April 6, 2004 for
the sale and delivery of the Equipment, a copy of which is attached hereto as Exhibit A and
incorporated herein by this reference (the "Proposal"); and
WHEREAS, Myers represents that it is qualified and capable of providing the
Equipment described in Exhibit A on the terms and conditions set forth below; and
WHEREAS, the City desires to enter into an agreement with Myers to provide for
the purchase and delivery of the Equipment on the terms and conditions set forth below;
01910/0001 104708.1
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Purchase and Sale of the Equipment.
1.1 Equipment. Myers shall sell and deliver, and the City shall purchase the
Equipment described in the Proposal. In the event of a conflict between the terms of this
Contract and the Proposal, the terms of this Contract shall control.
1.2 Delivery. Myers shall obtain and sell and deliver the Equipment to the
Pipe yard at 3750 Downey Road (the "Job Site"), Vernon, California, F.O.B. Job Site. Myers is
responsible for all costs of full freight, including insurance, to Job Site. The City shall be
responsible for offloading. Risk of loss shall pass to the City upon delivery F.O.B. Job Site.
2. Time of Performance. Myers shall commence and complete the delivery of the
Equipment as follows:
2.1 Time Schedule. Myers shall begin to obtain the Equipment upon the later
of the full execution of this Contract and the City's issuance of a Purchase Order (the
"Commencement Date"). Myers will submit drawings for approval no later than four (4) weeks
after the Commencement Date, and Myers shall complete delivery of the Equipment no later than
twelve (12) weeks from the Commencement Date (the "Delivery Time"). Unless performance is
excused, as set forth in Paragraph 2.2, Myers' failure to deliver the Equipment within the
Delivery Time shall constitute a material default of this Contract, and, among other remedies
available to it, the City shall have the option of terminating this Contract.
2.2 Force Majeure. Neither party shall be considered to be in default in any of
its obligations under this Contract when a failure of performance shall be due to an
uncontrollable force. The term "uncontrollable force" shall mean any cause beyond the control
of the party affected, including, but not restricted to, flood, earthquake, storm, fire, lightening,
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epidemic, war, riot, civil disturbance or disobedience, federal, state, or municipal action, statute,
ordinance, or regulation, embargoes of the United States Government or any other government,
which by exercise of due diligence such party could not reasonably have been expected to avoid
and by exercise of due diligence has been unable to overcome. Either party rendered unable to
fulfill any of its obligations under this Contract by reason of an uncontrollable force shall give
written notice within five (5) business days of such fact to the other party and shall exercise due
diligence to remove such inability with all reasonable dispatch. The Delivery Time shall be
extended by Change Order by the number of days of delay caused by the uncontrollable force, as
the City may reasonably determine. An extension of the Delivery Time by reason of an
uncontrollable force shall not justify extra compensation for Myers for administrative or other
costs or expenses; provided, however, that if the time for achieving delivery is materially
extended by reason of uncontrollable force through no fault of Myers, Myers shall be entitled to
an increase in the Contract Sum, but only in any amount equal to the increase in Myers' direct
cost resulting from such delay.
3. Contract Sum. The purchase price for the Equipment is Six Hundred Nine
Thousand, Six Hundred Dollars ($609,600), plus sales tax, if a tax exemption certificate is not
furnished by the City (the "Contract Sum").
4. Pavment Terms.
4.1 Pa, ent. One hundred percent (100%) of the Contract Sum shall be paid
within thirty (30) days after (a) the City's receipt, testing, and approval of the Equipment; (b) the
City's receipt of all required documentation (including, without limitation, warranties provided
by the manufacturers, and operating manuals, specifications, and other documentation necessary
and appropriate for the installation, operation, and maintenance, and repair of the Equipment;
collectively, the "Documentation"); (c) the City's receipt of an invoice in a form reasonably
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acceptable to the City from Myers; (d) the City's receipt of fully executed assignments of all
manufacturers' warranties and guarantees in favor of the City in form and substance reasonably
acceptable to the City; and (e) the City's receipt of evidence of Myers' payment of all of its
obligations in connection with this Contract.
4.2 Billings for Change Orders. Any billings for Change Orders, as defined in
Paragraph 7 below, must be billed by separate invoice, with a copy of the applicable Change
Order signed by the City attached to the invoice.
4.3 Payment Holds. Notwithstanding anything to the contrary contained
herein, the City shall not be obligated to make any payment to Myers if Myers is in default of any
of its obligations under this Contract; any portion of the Equipment is defective or not in
accordance with the terms of this Contract (provided, however, that payment shall be made as to
any portion of the Equipment that is acceptable to the City); or the conditions required for
payment as set forth in Paragraph 4.1 above have not been satisfied.
4.4 Payment is Not Acceptance. Neither payment by the City nor use of the
Equipment by the City shall constitute an acceptance of any Equipment not in accordance with
the terms of this Contract.
5. Myers' Representations, Warranties, and Covenants.
5.1 Capability. Myers represents to the City that it is qualified, willing, and
able to obtain, sell, and deliver the Equipment.
5.2 Testing. Myers shall inspect all Equipment as it is received by Myers for
delivery to the City, and will reject any Equipment that is defective, with the cost of repair or
replacement being the responsibility of Myers. The City reserves the right to test any and all
Equipment, regardless of the results of Myers' testing.
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5.3 Assignment of Warranties; Delivery of Documentation. Myers shall
assign to the City at the time of delivery of the Equipment all manufacturers' warranties for the
Equipment and Myers shall assemble and deliver to the City complete copies of all warranties,
guaranties, and operating and maintenance data and all other Documentation (as defined in
Paragraph 4.1) from all manufacturers whose Equipment is delivered to the City pursuant to this
Contract.
5.4 Compliance with Law. Myers shall strictly observe and comply with all
applicable federal, state, and local laws, ordinances, and regulations governing the sale and
delivery of the Equipment, including, but not limited to any permit or license requirements of the
United States Department of Commerce.
5.5 Authorizations. Myers is authorized to do business in California and
properly licensed and registered by all governmental authorities having jurisdiction over it.
5.6 Title to City. Myers warrants that title to all Equipment will pass to the
City either by incorporation in the construction or upon the receipt of payment by Myers,
whichever occurs first, free and clear of all liens, claims, security interests or encumbrances, and
that no seller of any Equipment or any portion thereof will retain an interest therein or an
encumbrance thereon.
5.7 Payments to Third Parties. Myers shall promptly pay all bills for labor and
materials furnished by others in connection with this Contract.
5.8 Warranty.
5.8.1 Myers' Warranties. Myers warrants that all Equipment will be new
and free from defects in materials and workmanship, comply with the specifications provided by
the manufacturers, be of good quality and merchantability, and fit for their intended purposes,
and conform to all applicable governmental regulations, statutes, and ordinances. Any
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Equipment not conforming to these requirements, including substitutions not properly approved
and authorized, may be considered defective. In the event that the test results obtained by either
Myers or the City reveals that any portion of the Equipment does not meet the City's
specifications or the City identifies any defects in or damage to the Equipment, Myers shall
promptly repair or replace any defective Equipment; provided, however, that if, in the City's
reasonable discretion, the quantity or quality of the defects are substantial, the City shall have the
option of rejecting the entire shipment of Equipment from that vendor, and obtaining another
vendor to provide that Equipment. Myers shall be responsible for all direct and indirect costs
that may be incurred by the City in connection with the rejection and/or replacement of damaged
or defective Equipment, including any damage caused to the City's existing equipment and the
Vernon Substation or the Malburg Project by the installation or use of defective Equipment
provided by Myers.
5.8.2 Manufacturers' Warranties. Myers shall obtain for the benefit of
the City, and assign to the City, commercially reasonable manufacturers' warranties for parts and
labor, which shall commence one (1) year from the date of installation of all of the Equipment
being purchased by the City under this Contract and energization or eighteen (18) months from
the date of the City's acceptance of the entirety of all Equipment being purchased hereunder,
whichever occurs first. Myers shall assist the City in the enforcement of all such warranties.
5.8.3 Warranty Period. Myers, at its cost, shall promptly repair or
replace or cause the manufacturer to repair or replace (provided, however, that the City shall
cooperate in working with the manufacturers if the warranties have been assigned to the City) all
Equipment rejected by the City as defective or as failing to conform to this Contract if reported to
Myers within the Warranty Period. The Warranty Period shall be the period of (a) one (1) year
from the date of installation of all Equipment being purchased hereunder and energization or
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eighteen (18) months from the date of the City's acceptance of the entirety of all Equipment
being purchased hereunder, whichever occurs first; or (b) such longer period of time as may be
prescribed by law or by the terms of the applicable manufacturers' warranty. The City shall give
such notice promptly after discovery of a defective condition. A new one year Warranty Period
shall commence for all repaired or replaced Equipment on the date the repair or replacement was
made. Myers' obligations hereunder shall include the obligation to repair any damage to other.
property caused by the defective Equipment or the repair thereof. Myers shall indemnify the City
from and hold the City harmless against any and all claims, liabilities, liens, damages, losses,
costs, and expenses, including reasonable attorneys' fees and all costs of defense, arising out of
or relating (a) to any such Equipment found to be defective or not in accordance with this
Contract, or (b) the correction of any such Equipment.
The foregoing representations, warranties, covenants, and agreements shall survive
any termination of this Contract and final completion of the delivery of the Equipment and are in
addition to, and not in lieu of, any and all other liability imposed upon Myers by law with respect
to Myers' duties, obligations and performance hereunder.
6. Indemnification.
6.1 Myers' Indemnity. To the fullest extent permitted by law, Myers shall
defend, indemnify and hold harmless City and its elected officials, officers, agents and employees
from all claims, suits, actions, demands, damages, liabilities, expenses, judgments, settlements
and penalties, losses, fines, and all costs and expenses incurred in connection therewith,
including reasonable attorneys' fees and all costs of defense, arising out of or attributable to the
negligent or wrongful acts of Myers or its employees or agents in the delivery of Equipment
under this Contract, except to the extent arising from or caused by the sole negligence or willful
misconduct of the City, its officers, agents or employees. The terms of this indemnity shall
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survive the termination of this Contract. The obligations in this Paragraph are in addition to
Myers'duty to provide insurance and shall not be limited by any limitation on the amount or type
of insurance coverage carried by Myers.
6.2 Indemnity Process. The City shall notify Myers in writing of any suits,
claims or demands covered by this indemnity. Promptly after receipt of such notice, Myers shall
assume the defense of such claim with counsel reasonably satisfactory to City. If Myers fails,
within a reasonable time after receipt of such notice, to assume the defense with counsel
reasonably satisfactory to City, or if, in the reasonable judgment of City, a direct or indirect
conflict of interest exists between the parties with respect to the claim, or if in the sole judgment
of City the assumption and conduct of the defense by Myers would materially and adversely
affect City in any manner or prejudice its ability to conduct a successful defense, then the City
shall have the right to undertake the defense, compromise and settlement of such claim for the
account and at the expense of Myers. Notwithstanding the above, if the City in its sole discretion
so elects, City may also participate in the defense of such actions by employing counsel at its
expense, without waiving the City's obligations to indemnify or defend. Myers shall not settle or
compromise any claim or consent to the entry of any judgment without the prior written consent
of the City and without an unconditional release of all liability by each claimant or plaintiff to the
City.
7. Change Orders. The. City reserves the right to make additions to or deletions from
the Equipment being purchased under this Contract. All such changes shall be incorporated in
written change orders executed by the City. The Change Orders shall specify the changes
ordered and the adjustment of prices, delivery schedules and warranties. Any equipment or
services added to this Contract under a Change Order shall be subject to all of the terms and
conditions of this Contract, except as otherwise set forth in the Change Order. No claim for
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additional compensation or extension of time shall be valid or recognized unless contained in a
Change Order signed by the Project Manager, as defined in Paragraph 11.7 below.
8. Termination of the Contract.
8.1 Right of Termination. This Contract may be terminated by the City, with
or without cause, upon at least fifteen (15) calendar days' written notice delivered to Myers.
8.2 Termination by City Without Cause. In the event of termination by the
City without cause, Myers shall be compensated for all Equipment delivered prior to the date of
delivery of the termination notice, plus compensation for (i) necessary work performed during
the notice period and authorized in the termination notice, and (ii) all costs reasonably and
necessarily incurred by Myers directly attributable to termination which could not reasonably
have been avoided and for which Myers is not otherwise compensated that are incurred through
the date of the termination and in effectuating the termination (the "Termination Expenses").
Termination Expenses shall not include lost profits, lost opportunities, consequential damages, or
the like.
8.3 Termination by the City for Cause or by Myers without Cause If Myers
breaches this Contract, the City shall notify Myers in writing of said breach and if Myers has not
cured or begun reasonable efforts to cure within fifteen (15) calendar days of delivery of said
notice, and fails to diligently pursue corrective action, the City shall have the right to cancel this
Contract on the 15m day following delivery of notice to Myers for cause. Myers shall be
responsible for all direct and indirect costs due to the City's re -procurement of the equivalent of
the Equipment cancelled pursuant to this Paragraph 8.3. If this Contract is terminated by the City
with cause, or terminated by Myers without cause, the City shall pay Myers for all Equipment
delivered prior to the date of delivery of the termination notice, subject to the right of the City to
withhold such unpaid amounts pending resolution of damages incurred by the City as a result of
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Myers's default and for any reason described as a justification for a payment hold as set forth in
Paragraph 4.3.
8.4 Actions Subsequent to Termination. Following the termination date,
regardless of whether the Contract is terminated with or without cause, and subject only to the
payments described in Paragraphs 8.2 or 8.3, as applicable, the City shall have no further rights,
duties, liabilities or obligations whatsoever under this Contract. Upon a termination of this
Contract, except for its obligations under Paragraph 12.5 below, Myers shall have no further
rights, duties, liabilities or obligations whatsoever under this Contract. Notwithstanding anything
in this Contract, including the foregoing, to the contrary, Paragraphs 5, 6, 8, 9, 10, 11.2, 11.3,
11.4, and 11.11 shall survive tie termination of this Contract.
8.5 Delivery of Work Product and Documentation..Within three (3) business
days after any termination of this Contract, Myers shall deliver to the City all Work Product (as
defined in Paragraph 9) and all Documentation (as defined in Paragraph 4.1) pertaining to this
Contract and any and all copies thereof, whether in the possession of Myers or a party engaged by
Myers; provided, however, that solely for its internal auditing purposes, Myers may, at its sole
expense, make and retain copies of Work Product materials, subject to the confidentiality
provisions of Paragraph 10. Myers shall also furnish all such information, take all such other
action and shall cooperate with the City as the City shall reasonably require in order to effectuate
an orderly and systematic termination of Myers's duties and activities hereunder.
9. Work Product. All finished or unfinished documents, plans, designs, drawings,
data, databases, studies, surveys, maps, models, photographs, reports and other materials, in
whatever form or medium, prepared by or for Myers, its officers, employees, agents in the course
of performing the obtaining, delivering, and selling to the City the Equipment sold under this
Contract (collectively, the "Work Product"), but excluding working notes and internal .
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documents, shall be the property of City, and City shall have the sole right to use such materials
in its discretion without further compensation to Myers or to any other party_. Work Product
materials shall be delivered to City by Myers as they are generated.
10. Confidential Information.
10.1 Access to Confidential Information. The City may provide Myers or allow
Myers access to certain information not available to the public concerning the City or businesses
located in the City. The information may include information regarding companies located in the
City, tax information, utility usage, and information concerning various company's sales, value
of assets, or other confidential information about companies dealing with the City. All such non-
public information shall be known as "Confidential Information" and may not be by Myers for
any purpose other than to perform its duties hereunder.
10.2 No Disclosure. Except as expressly permitted by prior written consent of
the City, Myers shall not disclose, permit the disclosure of, release, disseminate, or transfer,
whether orally or by any other means, any part of such Confidential Information to any other
person or entity, without the express prior written consent of an authorized representative of the
City. Myers shall return any written Confidential Information and all copies made of such items
to the City upon the City's written request, but in any event not later than the date that Myers has
delivered all Equipment to be delivered pursuant to this Contract. Myers hereby agrees that such
Confidential Information and any documents provided may be used by Myers only as authorized
by the City.
10.3 Court Ordered Disclosure. Myers shall immediately notify the City of any
court order or subpoena requiring disclosure of Confidential Information, and shall cooperate
with the City's legal counsel in responding to any such order or subpoena. Myers may only
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disclose Confidential Information required to be disclosed pursuant to court order or subpoena
after legal counsel has exhausted any lawful and timely appeal or challenge.
10.4 Exceptions to Confidentiality. The foregoing obligations shall not apply to
any Confidential Information lawfully in Myers's possession prior to its acquisition from the
City; received in good faith from a third party not subject to any confidential obligation to the
City; or that now is or later becomes publicly known through no breach of confidential obligation
by Myers.
10.5 Remedies. In addition to any other remedies that it may have at law or in
equity, the City shall be entitled to a temporary and permanent injunction by a court of competent
jurisdiction against any breach. or threatened breach of any of the provisions of this Paragraph 10.
Myers acknowledges that in case of such breach or threatened breach of said provisions, the City
would have no adequate remedy at law, and the City shall not be required to post a bond or other
security or to prove damages.
11. General Provisions.
11.1 Entire Agreement. This Contract, with Exhibits A and B, each of which is
attached hereto and incorporated herein by this reference, represents the entire and integrated
agreement between the parties hereto, and supersedes and replaces all prior and contemporaneous
negotiations, representations, discussions, or agreements between the parties related to the
matters set forth in this Contract. This Contract may be amended or modified only by a written
amendment signed by the parties.
11.2 Forum Selection. Any action brought relating to this Contract shall be
brought and held exclusively in a Court in or serving the County of Los Angeles, California.
11.3 Attorneys' Fees. If either party institutes an action or legal proceeding
arising out of or related to this Contract or the relationship of the parties or their rights or duties
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in connection with the matters set forth in this Contract, whether sounding in tort, contract, or
otherwise, the prevailing party in such action or proceeding shall be entitled to recover from the
other party all costs and expenses, including all costs and reasonable attorneys' fees, in addition
to any other remedy awarded by the court.
11.4 Notices. All notices required or permitted by this Contract shall be in
writing and may be delivered in person (by hand or by messenger or courier service) or may be
sent by certified or registered mail, return receipt requested, or by facsimile transmission during
normal business hours, if delivery is confirmed and provided a copy is also delivered via delivery
or mail, and shall be deemed effective upon delivery or refusal to accept delivery, if served in a
manner specified in this Paragraph 11.4 to the recipient as set forth below. If a notice is
delivered on a Saturday, Sunday, or holiday, it shall be deemed delivered on the next business
day. Notices to the parties shall be sent to the addresses set forth below, or such other address as
is provided by one party to the other in writing.
CITY: THE CITY OF VERNON
Attn: Bruce V. Malkenhorst
City Administrator
4305 Santa Fe Avenue
Vernon, CA 90058-0805
With a copy to:
Manuel G. Garcia
Project Manager
4305 Santa Fe Avenue
Vernon, CA 90058-0805
MYERS: MYERS POWER PRODUCTS, INC.
725 E. Harrison Street
Corona, CA 92679
Attn: Diana Grootonk, CEO
11.5 Status of Myers. At all times during the term of this Contract, Myers shall
be an independent contractor. Except as the City may specify in writing, Myers shall have no
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authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent.
Myers shall have no authority, expressed or implied, pursuant to this Contract to bind the City to
any obligation whatsoever.
11.6 Insurance. Myers agrees to provide insurance in the amounts and forms
specified in Exhibit B, which is attached hereto and made a part hereof by reference. Myers shall
submit to the City documentation indicating compliance with these minimum requirements no
less than one (1) day prior to the beginning of performance under this Contract. Myers shall not
commence performance of its work under this Contract until the above insurance has been
obtained and proof of insurance has been filed with and approved by the City.
11.7 Project Manager. The City's Project Manager shall be Manuel G. Garcia.
The City reserves the right, in the City's sole discretion, to replace Mr. Garcia as the City's
Project Manager upon notice to Myers. The Project Manager shall have the authority to
represent the City in matters involving this Contract.
11.8 Assignment Prohibited. No party to this Contract may assign any right or
obligation except with the express written consent of the other party, provided, however, that
Myers may purchase from other vendors and manufacturers the Equipment to be delivered by
Myers hereunder, and Myers may by written request assign any right to receive monies earned
hereunder.
11.9 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 is held by a court of competent jurisdiction to be
invalid, illegal or unenforceable in any respect, such provision will be limited to the extent
required to make such provision valid and enforceable, and if necessary, severed from this
Contract. All other terms and conditions shall remain in full force and effect.
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11.10 Time of the Essence. Time is of the essence in the performance of this
Contract.
11.11 Rights and Remedies. The City's rights and remedies under the Contract
are cumulative with and in addition to all other legal and equitable rights and remedies which the
City may have under applicable law.
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
LEONIS C. MALBURG, Mayor
ATTEST:
Bruce V. Malkenhorst, City Clerk
APPROVED AS TO FORM
Eric T. Fresch, City Attorney
MYERS POWER PRODUCTS, INC.
By:
Typed Name:
Title:
By:
Typed Name:
Title:
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EXHIBIT
VA&
f '�ox�erProducts, 'INC.
Myers/Pioneer Power Systems • Myers/RYCO • Myers/Power Pedestals • Myers/Abacus . Mye ais
April 6, 2004
City of Vernon
4300 Santa Fe Avenue
Vernon, CA 90058
Attn: Mr. Otis Smith
Subject: Request for Quotation
Specification No. ST-SG 2-2004
Vernon Substation No. 2 Section
Reference. Myers Power Products (Pioneer Power Systems Division) Quotation No. 15716
Dear Mr. Smith,
In response to your request for a quotation dated March 31, 2004, we are pleased to offer the following
proposal for.your evaluation and acceptance.
Terms and Conditions
TAXES:
Our proposal does not include sales or use tax. If a tax exemption certificate is not furnished, al.
applicable taxes will be added to the invoice.
PAYMENT TERMS:
100%, Net 30 days after shipment
(Retention's are not allowed unless pre -approved by Myers Power Products)
PROPOSAL VALIDITY:
Our proposal is valid for 30. days from the quotation date, with prices firm through the quoted delivery
date.
FREIGHT:
F.O.B. Job site — Full freight is allowed to Vernon, CA. Offloading by others.
WARRANTY:
Our equipment is warranted for a period of 12 months after energization or 18 months after the
shipment, whichever occurs first. Neither in -and -out charges nor consequential damages are included
Corporate Headquarters: 725 East Hwison Street, Corona. CA 92679 • Tel: (909) 555.1212 - Fax: (909) 555.1212
vwvw.myempowepDducts.com
City of Vernon
Mr. Otis Smith
April 6, 2004
Page T*o
CANCELLATION CHARGES•
10% - Order received and entered. on factory, work not started, material'not ordered.
30% - Drawings for approval / or record submitted (if applicable).
60946'-. Drawings approved and released for manufacturing
80% - Material accumulated and production started
100%.- Manufacturing completed
DELIVERY SCHEDULE:
Our standard shipping schedule for this type of equipment is as follows:
• Drawings for approval will be submitted 3045 days after receipt of purchase order
• Shipment of the completed electrical equipment will be 14 weeks after receipt of the approved
drawings -
SCOPE OF WORK —and- PRICE SCHEDULE:
Qty (1) l5kV N-1 Metal Clad Switchgear per the attached BOM
TOTAL SELL PRICE: $609,600.001VET
Thank you fqr your continued interest in Myers Power Products (Pioneer Power Systems Division).
Please feel free to contact us for any further information or assistance.
Sincerely,
MYERS POWER PRODUCTS
Satish Patel
VP Esti hating
�- I
L],
L]
Myers Power Products
Quotation No. 15716
Bill of Material
City of Vernon Utilities
Vernon Substation #2 Section
April 6, 2004
Pagel of 2
Qyt (1) 15kV N-1 Metal Clad Switcbgear - consist of the following material:
ITEM 1
Description
1
Malburg Generating Station
24 .
Indoor Section, 11 & 13 ga, 36Lx98Dx95H provision for VCB
LOT
Porcelain Insulators, 15kV, 6 insulators per this adder
LOT
Copper Main Bus, 3000A, Epoxy Coated, per section
LOT
Copper Reserve Bus, 3000A, Epoxy Coated, per section
22
1200A. Cu Line/Load Bus, Epoxy Coated, per section
4
3000A Cu Line/Load Bus, -Epoxy Coated, per section
2
Riser to Bus Run 3000A, Epoxy Coated, per section
21
15kV, 40KA, 1200A VCB Element, Circuit Breaker Element
21
15kV, 1200A, cell only
4
15kV, 40KA, 3000A VCB Element, Circuit Breaker Element
4 .
15kV, 3000A, cell only
25
10A & lOB MOC
25
5A & 5B TOC
1
Portable Lifter
1
Accessories
1
Test Jumper
1 .
Test Cabinet
1
Ramp
69
Current Transformer, 1200:5, #750X110605, Single Ratio, C200 (M #780402)
87
Current Tranaformer, 4000:5, #750X110669, High Ratio, SR, C400(1TI #785402)
11
Ground Current Transformer, Type BYZ
9 Potential
Transformer, Drawer
24 Potential
Transformer, 7200:120V
1 PARTIAL
2-
8
13
1—
DISCHARGE DETECTION PACKAGE with:
InsulGard, Humidity & Temp., Cutler Hammer #CHPD-6022
— Sensor Package, Cutler Hammer #81602R2
— RF CTS, cutler Hammer #CHPD-1008
RS232-RS485 Converter, Cutler Hammer #CHPD-60006
Myers Power Products
Quotation No. 15716
Bill of Material
City of Vernon Utilities
Vernon Substation #2 Section
April 6, 2004
Page 2 of 2
Qh'
Description
ITEM 1
2
Ground Lug, Screw down type, 4/0 —1/0 AWG
66
Strip Heater, 240V, 250W w/ Guard
I
Thermostat
2
GROUND PADS
33
I,/A, 12kV, Distnbution Type #9L23AXX012XHS
EXHIBIT
. ' b w J ' • A
EXHIBIT B
INSURANCE SCHEDULE
Myers 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 Prop= 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
H. Liabili
General Liability
$1,000,000
$2,000,000
$1,000,000
Premises Operations
$1,000,000
$2,000,000
$1,000,000
Independent Contractor
$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
$5 000 000
$5 000 000
$5 000 000
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 Contract.
4. Such other endorsement as may be required by addendum hereto.
16
01910AM 1104708.1
SUPPORTING
DOCUMENTS
EQUIPMENT PURCHASE CONTRACT
THIS 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 thi�_ day of August, 2004, in the City of Vernon, County of Los Angeles,
State of California
BY AND BETWEEN THE CITY OF VERNON
(hereinafter referred to as "City")
4305 Santa Fe Avenue
Vernon, CA 90058
AND MYERS POWER PRODUCTS, INC.
(hereinafter referred to as "Myers")
725 E. Harrison Street
Corona, CA 92679
RECITALS
WHEREAS, the City is constructing the Malburg Generating Station Combined
Cycle Power Plant at 2715 E. 50`h Street in the City of Vernon (the "Malburg Project") for
purposes of installing additional generating capacity; and
WHEREAS, the City has determined that it is necessary to purchase one (1) 15
KV N-1 Metalclad Switchgear, including circuit breakers, transformers and associated equipment
(collectively, the "Equipment") to upgrade the existing Vernon Substation 7KV Switchgear and
circuits, to enable the City to integrate the Malburg Project into the Vernon electric system; and
WHEREAS, Myers has prepared a proposal dated on or about April 6, 2004 for
the sale and delivery of the Equipment, a copy of which is attached hereto as Exhibit A and
incorporated herein by this reference (the "Proposal"); and
WHEREAS, Myers represents that it is qualified and capable of providing the
Equipment described in Exhibit A on the terms and conditions set forth below; and
WHEREAS, the City desires to enter into an agreement with Myers to provide for
the purchase and delivery of the Equipment on the terms and conditions set forth below;
01910/0001 104708.1
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. , Purchase and Sale of the Equipment.
1.1 Equipment. Myers shall sell and deliver, and the City shall purchase the
Equipment described in the Proposal. In the event of a conflict between the terms of this
Contract and the Proposal, the terms of this Contract shall control.
1.2 Delivery. Myers shall obtain and sell and deliver the Equipment to the
Pipe yard at 3750 Downey Road (the "Job Site'), Vernon, California, F.O.B. Job Site. Myers is
responsible for all costs of full freight, including insurance, to Job Site. The City shall be
responsible for offloading. Risk of loss shall pass to the City upon delivery F.O.B. Job Site.
2. Time of Performance. Myers shall commence and complete the delivery of the
Equipment as follows:
2.1 Time Schedule. Myers shall begin to obtain the Equipment upon the later
of the full execution of this Contract and the City's issuance of a Purchase Order (the
"Commencement Date"). Myers will submit drawings for approval no later than four (4) weeks
after the Commencement Date, and Myers shall complete delivery of the Equipment no later than
twelve (12) weeks from the Commencement Date (the "Delivery Time"). Unless performance is
excused, as set forth in Paragraph 2.2, Myers' failure to deliver the Equipment within the
Delivery Time shall constitute a material default of this Contract, and, among other remedies
available to it, the City shall have the option of terminating this Contract.
2.2 Force Majeure. Neither party shall be considered to be in default in any of
its obligations under this Contract when a failure of performance shall be due to an
uncontrollable force.. The term "uncontrollable force" shall mean any cause beyond the control
of the party affected, including, but not restricted to, flood, earthquake, storm, fire, lightening,
2
01910r0001 104708.1
' epidemic, war, riot, civil disturbance or disobedience, federal, state, or municipal action, statute,
ordinance, or regulation, embargoes of the United States Government or any other government,
which by exercise of due diligence such party could not reasonably have been expected to avoid
and by exercise of due diligence has been unable to overcome. Either party rendered unable to
fulfill any of its obligations under this Contract by reason of an uncontrollable force shall give
written notice within five (5) business days of such fact to the other party and shall exercise due
diligence to remove such inability with all reasonable dispatch. The Delivery Time shall be
extended by Change Order by the number of days of delay caused by the uncontrollable force, as
the City may reasonably determine. An extension of the Delivery Time by reason of an
uncontrollable force shall not justify extra compensation for Myers for administrative or other
costs or expenses; provided, however, that if the time for achieving delivery is materially
extended by reason of uncontrollable force through no fault of Myers, Myers shall be entitled to
an increase in the Contract Sum, but only in any amount equal to the increase in Myers' direct
cost resulting from such delay.
3. 'Contract Sum. The purchase price for the Equipment is Six Hundred Nine
Thousand, Six Hundred Dollars ($609,600), plus sales tax, if a tax exemption certificate is not
furnished by the City (the "Contract Sum").
4. Payment Terms.
4.1 Pa ent. One hundred percent (100%) of the Contract Sum shall be paid
within thirty (30) days after (a) the City's receipt, testing, and approval of the Equipment; (b) the
City's receipt of all required documentation (including, without limitation, warranties provided
by the manufacturers, and operating manuals, specifications, and other documentation necessary
and appropriate for the installation, operation, and maintenance, and repair of the Equipment;
collectively, the "Documentation"); (c) the City's receipt of an invoice in a form reasonably
3
01910/0001 104708.1
acceptable to the City from Myers; (d) the City's receipt of fully executed assignments of all
manufacturers' warranties and guarantees in favor of the City in form and substance reasonably
acceptable to the City; and (e) the City's receipt of evidence of Myers' payment of all of its
obligations in connection with this Contract.
4.2 Billings for Change Orders. Any billings for Change Orders, as defined in
Paragraph 7 below, must be billed by separate invoice, with a copy of the applicable Change
Order signed by the City attached to the invoice.
4.3 Payment Holds. Notwithstanding anything to the contrary contained
herein, the City shall not be obligated to make any payment to Myers if Myers is in default of any
of its obligations under this Contract; any portion of the Equipment is defective or not in
accordance with the terms of this Contract (provided, however, that payment shall be made as to
any portion of the Equipment that is acceptable to the City); or the conditions required for
payment as set forth in Paragraph 4.1 above have not been satisfied.
4.4 Payment is Not Acceptance. Neither payment by the City nor use of the
Equipment by the City shall constitute an acceptance of any Equipment not in accordance with
the terms of this Contract.
5. Myers' Representations, Warranties and Covenants
5.1 Viability. Myers represents to the City that it is qualified, willing, and
able to obtain, sell, and deliver the Equipment.
5.2 Testing. Myers shall inspect all Equipment as it is received by Myers for
delivery to the City, and will reject any Equipment that is defective, with the cost of repair or
replacement being the responsibility of Myers. The City reserves the right to test any and all
Equipment, regardless of the results of Myers' testing.
4
01910MOI 104708.1
5.3 Assignment of Warranties; Delivery of Documentation. Myers shall
assign to the City at the time of delivery of the Equipment all manufacturers' warranties for the
Equipment and Myers shall assemble and deliver to the City complete copies of all warranties,
guaranties, and operating and maintenance data and all other Documentation (as defined in
Paragraph 4.1) from all manufacturers whose Equipment is delivered to the City pursuant to this
Contract.
5.4 Compliance with Law. Myers shall strictly observe and comply with all
applicable federal, state, and local laws, ordinances, and regulations governing the sale and
delivery of the Equipment, including, but not limited to any permit or license requirements of the
United States Department of Commerce.
5.5 Authorizations. Myers is authorized to do business in California and
properly licensed and registered by all governmental authorities having jurisdiction over it.
5.6 Title to City. Myers warrants that title to all Equipment will pass to the
City either by incorporation in the construction or upon the receipt of payment by Myers,
whichever occurs first, free and clear of all liens, claims, security interests or encumbrances, and
that no seller of any Equipment or any portion thereof will retain an interest therein or an
encumbrance thereon.
5.7 Payments to Third Parties. Myers shall promptly pay all bills for labor and
materials furnished by others in connection with this Contract.
5.8 Warranty.
5.8.1 Myers' Warranties. Myers warrants that all Equipment will be new
and free from defects in materials and workmanship, comply with the specifications provided by
the manufacturers, be of good quality and merchantability, and fit for their intended purposes,
and conform to all applicable governmental regulations, statutes, and ordinances. Any
5
01910i0001 104708.1
Equipment not conforming to these requirements, including substitutions not properly approved
and authorized, may be considered defective. In the event that the test results obtained by either
Myers or the City reveals that any portion of the Equipment does not meet the City's
specifications or the City identifies any defects in or damage to the Equipment, Myers shall
promptly repair or replace any defective Equipment; provided, however, that if, in the City's
reasonable discretion, the quantity or quality of the defects are substantial, the City shall have the
option of rejecting the entire shipment of Equipment from that vendor, and obtaining another
vendor to provide that Equipment. Myers shall be responsible for all direct and indirect costs
that may be incurred by the City in connection with the rejection and/or replacement of damaged
or defective Equipment, including any damage caused to the City's existing equipment and the
Vernon Substation or the Malburg Project by the installation or use of defective Equipment
provided by Myers.
5.8.2 Manufacturers' Warranties. Myers shall obtain for the benefit of
the City, and assign to the City, commercially reasonable manufacturers' warranties for parts and
labor, which shall commence one (1) year from the date of installation of all of the Equipment
being purchased by the City under this Contract and energization or eighteen (18) months from
the date of the City's acceptance of the entirety of all Equipment being purchased hereunder,
whichever occurs first. Myers shall assist the City in the enforcement of all such warranties.
5.8.3 Warranty Period. Myers, at its cost, shall promptly repair or
replace or cause the manufacturer to repair or replace (provided, however, that the City shall
cooperate in working with the manufacturers if the warranties have been assigned to the City) all
Equipment rejected by the City as defective or as failing to conform to this Contract if reported to
Myers within the Warranty Period. The Warranty Period shall be the period of (a) one (1) year
from the date of installation of all Equipment being purchased hereunder and energization or
6
01910/0001 104708.1
eighteen (18) months from the date of the City's acceptance of the entirety of all Equipment
being purchased hereunder, whichever occurs first; or (b) such longer period of time as may be
prescribed by law or by the terms of the applicable manufacturers' warranty. The City shall give
such notice promptly after discovery of a defective condition. A new one year Warranty Period
shall commence for all repaired or replaced Equipment on the date the repair or replacement was
made. Myers' obligations hereunder shall include the obligation to repair any damage to other
property caused by the defective Equipment or the repair thereof. Myers shall indemnify the City
from and hold the City harmless against any and all claims, liabilities, liens, damages, losses,
costs, and expenses, including reasonable attorneys' fees and all costs of defense, arising out of
or relating (a) to any such Equipment found to be defective or not in accordance with this
Contract, or (b) the correction of any such Equipment.
The foregoing representations, warranties, covenants, and agreements shall survive
any termination of this Contract and final completion of the delivery of the Equipment and are in
addition to, and not in lieu of, any and all other liability imposed upon Myers by law with respect
to Myers' duties, obligations and performance hereunder.
6. Indemnification.
6.1 Myers' Indemnity. To the fullest extent permitted by law, Myers shall
defend, indemnify and hold harmless City and its elected officials, officers, agents and employees
from all claims, suits, actions, demands, damages, liabilities, expenses, judgments, settlements
and penalties, losses, fines, and all costs and expenses incurred in connection therewith,
including reasonable attorneys' fees and all costs of defense, arising out of or attributable to the
negligent or wrongful acts of Myers or its employees or agents in the delivery of Equipment
under this Contract, except to the extent arising from or caused by the sole negligence or willful
misconduct of the City, its officers, agents or employees. The terms of this indemnity shall
7
01910/0001 104708.1
survive the termination of this Contract. The obligations in this Paragraph are in addition to
Myers'duty to provide insurance and shall not be limited by any limitation on the amount or type
of insurance coverage carried by Myers.
6.2 Indemnity Process. The City shall notify Myers in writing of any suits,
claims or demands covered by this indemnity. Promptly after receipt of such notice, Myers shall
assume the defense of such claim with counsel reasonably satisfactory to City. If Myers fails,
within a reasonable time after receipt of such notice, to assume the defense with counsel
reasonably satisfactory to City, or if, in the reasonable judgment of City, a direct or indirect
conflict of interest exists between the parties with respect to the claim, or if in the sole judgment
of City the assumption and conduct of the defense by Myers would materially and adversely
affect City in any manner or prejudice its ability to conduct a successful defense, then the City
shall have the right to undertake the defense, compromise and settlement of such claim for the
account and at the expense of Myers. Notwithstanding the above, if the City in its sole discretion
so elects, City may also participate in the defense of such actions by employing counsel at its
expense, without waiving the City's obligations to indemnify or defend. Myers shall not settle or
compromise any claim or consent to the entry of any judgment without the prior written consent
of the City and without an unconditional release of all liability by each claimant or plaintiff to the
City.
7. Change Orders. The City reserves the right to make additions to or deletions from
the Equipment being purchased under this Contract. All such changes shall be incorporated in
written change orders executed by the City. The Change Orders shall specify the changes
ordered and the adjustment of prices, delivery schedules and warranties. Any equipment or
services added to this Contract under a Change Order shall be subject to all of the terms and
conditions of this Contract, except as otherwise set forth in the Change Order. No claim for
8
01910/0001 104708.1
additional compensation or extension of time shall be valid or recognized unless contained in a
Change Order signed by the Project Manager, as defined in Paragraph 11.7 below.
8. Termination of the Contract.
8.1 Right of Termination. This Contract may be terminated by the City, with
or without cause, upon at least fifteen (15) calendar days' written notice delivered to Myers.
8.2 Termination by City Without Cause In the event of termination by the
City without cause, Myers shall be compensated for all Equipment delivered prior to the date of
delivery of the termination notice, plus compensation for (i) necessary work performed during
the notice period and authorized in the termination notice, and (ii) all costs reasonably and
necessarily incurred by Myers directly attributable to termination which could not reasonably
have been avoided and for which Myers is not otherwise compensated that are incurred through
the date of the termination and in effectuating the termination (the "Termination Expenses").
Termination Expenses shall not include lost profits, lost opportunities, consequential damages, or
the like.
8.3 Termination by the City for Cause or by Myers without Cause If Myers
breaches this Contract, the City shall notify Myers in writing of said breach and if Myers has not
cured or begun reasonable efforts to cure within fifteen (15) calendar days of delivery of said
notice, and fails to diligently pursue corrective action, the City shall have the right to cancel this
Contract on the 15`h day following delivery of notice to Myers for cause. Myers shall be
responsible for all direct and indirect costs due to the City's re -procurement of the equivalent of
the Equipment cancelled pursuant to this Paragraph 8.3. If this Contract is terminated by the City
with cause, or terminated by Myers without cause, the City shall pay Myers for all Equipment
delivered prior to the date of delivery of the termination notice, subject to the right of the City to
withhold such unpaid amounts pending resolution of damages incurred by the City as a result of
9
01910/0001 104708.1
Myers's default and for any reason described as a justification for a payment hold as set forth in
Paragraph 4.3.
8.4 Actions Subsequent to Termination Following the termination date,
regardless of whether the Contract is terminated with or without cause, and subject only to the
payments described in Paragraphs 8.2 or 8.3, as applicable, the City shall have no further rights,
duties, liabilities or obligations whatsoever under this Contract. Upon a termination of this
Contract, except for its obligations under Paragraph 12.5 below, Myers shall have no further
rights, duties, liabilities or obligations whatsoever under this Contract. Notwithstanding anything
in this Contract, including the foregoing, to the contrary, Paragraphs 5, 6, 8, 9, 10, 11.2, 11.3,
11.4, and 11.11 shall survive the termination of this Contract.
8.5 Delivery of Work Product and Documentation Within three (3) business
days after any termination of this Contract, Myers shall deliver to the City all Work Product (as
defined in Paragraph 9) and all Documentation (as defined in Paragraph 4.1) pertaining to this
Contract and any and all copies thereof, whether in the possession of Myers or a party engaged by
Myers; provided, however, that solely for its internal auditing purposes, Myers may, at its sole
expense, make and retain copies of Work Product materials, subject to the confidentiality
provisions of Paragraph 10. Myers shall also furnish all such information, take all such other
action and shall cooperate with the City as the City shall reasonably require in order to effectuate
an orderly and systematic termination of Myers's duties and activities hereunder.
9. Work Product. All finished or unfinished documents, plans, designs, drawings,
data, databases, studies, surveys, maps, models, photographs, reports and other materials, in
whatever form or medium, prepared by or for Myers, its officers, employees, agents in the course
of performing the obtaining, delivering, and selling to the City the Equipment sold under this
Contract (collectively, the "Work Product"), but excluding working notes and internal .
10
01910A001 104708.1
documents, shall be the property of City, and City shall have the sole right to use such materials
in its discretion without further compensation to Myers or to any other party. Work Product
materials shall be delivered to City by Myers as they are generated.
10. Confidential Information.
10.1 Access to Confidential Information. The City may provide Myers or allow
Myers access to certain information not available to the public concerning the City or businesses
located in the City. The information may include information regarding companies located in the
City, tax information, utility usage, and information concerning various company's sales, value
of assets, or other confidential information about companies dealing with the City. All such non-
public information shall be known as "Confidential Information" and may not be by Myers for
any purpose other than to perform its duties hereunder.
10.2 No Disclosure. Except as expressly permitted by prior written consent of
the City, Myers shall not disclose, permit the disclosure of, release, disseminate, or transfer,
whether orally or by any other means, any part of such Confidential Information to any other
person or entity, without the express prior written consent of an authorized representative of the
City. Myers shall return any written Confidential Information and all copies made of such items
to the City upon the City's written request, but in any event not later than the date that Myers has
delivered all Equipment to be delivered pursuant to this Contract. Myers hereby agrees that such
Confidential Information and any documents provided may be used by Myers only as authorized
by the City.
10.3 Court Ordered Disclosure. Myers shall immediately notify the City of any
court order or subpoena requiring disclosure of Confidential Information, and shall cooperate
with the City's legal counsel in responding to any such order or subpoena. Myers may only
11
01910/000.1 104709.1
disclose Confidential Information required to be disclosed pursuant to court order or subpoena
after legal counsel has exhausted any lawful and timely appeal or challenge.
10.4 Exceptions to Confidentiality The foregoing obligations shall not apply to
any Confidential Information lawfully in Myers's possession prior to its acquisition from the
City; received in good faith from a third party not subject to any confidential obligation to the.
City; or that now is or later becomes publicly known through no -breach of confidential obligation
by Myers.
10.5 Remedies. In addition to any other remedies that it may have at law or in
equity, the City shall be entitled to a temporary and permanent injunction by a court of competent
jurisdiction against any breach, or threatened breach of any of the provisions of this Paragraph 10.
Myers acknowledges that in case of such breach or threatened breach of said provisions, the City
would have no adequate remedy at law, and the City shall not be required to post a bond or other
security or to prove damages.
1 L General Provisions.
11.1 Entire Agreement. This Contract, with Exhibits A and B, each of which is
attached hereto and incorporated herein by this reference, represents the entire and integrated
agreement between the parties hereto, and supersedes and replaces all prior and contemporaneous
negotiations, representations, discussions, or agreements between the parties related to the
matters set forth in this Contract. This Contract may be amended or modified only by a written
amendment signed by the parties.
11.2 Forum Selection. Any action brought relating to this Contract shall be
brought and held exclusively in a Court in or serving the County of Los Angeles, California.
11.3 Attorneys' Fees. If either party institutes an action or legal proceeding
arising out of or related to this Contract or the relationship of the parties or their rights or duties
12
01910/0001 104708.1
in connection with the matters set forth in this Contract, whether sounding in tort, contract, or
otherwise, the prevailing party in such action or proceeding shall be entitled to recover from the
other party all costs and expenses, including all costs and reasonable attorneys' fees, in addition
to any other remedy awarded by the court.
11.4 Notices. All notices required or permitted by this Contract shall be in
writing and may be delivered in person (by hand or by messenger or courier service) or may be
sent by certified or registered mail, return receipt requested, or by facsimile transmission during
normal business hours, if delivery is confirmed and provided a copy is also delivered via delivery
or mail, and shall be deemed effective upon delivery or refusal to accept delivery, if served in a
manner specified in this Paragraph 11.4 to the recipient as set forth below. If a notice is
delivered on a Saturday, Sunday, or holiday, it shall be deemed delivered on the next business
day. Notices to the parties shall be sent to the addresses set forth below, or such other address as
is provided by one party to the other in writing.
CITY: THE CITY OF VERNON
Attn: Bruce V. Malkenhorst
City Administrator
4305 Santa Fe Avenue
Vernon, CA 90058-0805
With a copy to:
Manuel G. Garcia
Project Manager
4305 Santa Fe Avenue
Vernon, CA 90058-0805
MYERS: MYERS POWER PRODUCTS, INC.
725 E. Harrison Street
Corona, CA 92679
Attn: Diana Grootonk, CEO
11.5 Status of Myers. At all times during the term of this Contract, Myers shall
be an independent contractor. Except as the City may specify in writing, Myers shall have no
13
01910/0001 104708.1
authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent.
Myers shall have no authority, expressed or implied, pursuant to this Contract to bind the City to
any obligation whatsoever.
11.6 Insurance. Myers agrees to provide insurance in the amounts and forms
specified in Exhibit B, which is attached hereto and made a part hereof by reference. Myers shall
submit to the City documentation indicating compliance with these minimum requirements no
less than one (1) day prior to the beginning of performance under this Contract. Myers shall not
commence performance of its work under this Contract until the above insurance has been
obtained and proof of insurance has been filed with and approved by the City.
11.7 Project Manager. The City's Project Manager shall be Manuel G. Garcia.
The City reserves the right, in the City's sole discretion, to replace Mr. Garcia as the City's
Project Manager upon notice to Myers. The Project Manager shall have the authority to
represent the City in matters involving this Contract.
11.8 Assignment Prohibited. No party to this Contract may assign any right or
obligation except with the express written consent of the other party; provided, however, that
Myers may purchase from other vendors and manufacturers the Equipment to be delivered by
Myers hereunder, and Myers may by written request assign any right to receive monies earned
hereunder.
11.9 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 is held by a court of competent jurisdiction to be
invalid, illegal or unenforceable in any respect, such provision will be limited to the extent
required to make such provision valid and enforceable, and if necessary, severed from this
Contract. All other terms and conditions shall remain in full force and effect.
14
01910/0001 104708.1
Contract.
11.10 Time of the Essence. Time is of the essence in the performance of this
11.11 Ri"hts and Remedies. The City's rights and remedies under the Contract
are cumulative with and in addition to all other legal and equitable rights and remedies which the
City may have under applicable law.
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. MALIJURG, Mayor
ATTEST:
Bruce V. Malkenhorst, City Clerk
APPROVED A TO ORM
Eric T. Fresc , City Att rney
MYERS POWER PRODUCTS, INC.
By: 6aJ C1k --
Typed Name: a.,nc,
Title: 3h J c g g a j �pfT.,ca,�_
By: cl✓�
Typed Name: Rlea' U Gw,j A
Title: �7jeailfZ-
155
01910MOI 104708.1
�• Pv erPruducts, loc.
MyerrJPioneer Power ems M ersIRYCO Myers/power Pedestals itAyerslAbaws
April 6, 2004
City of Vernon '
4300 Santa Fe Avenue
Vernon, CA 90058
Attn: Mr. Otis Smith
Subject: Request for Quotation
Specification No. ST-SG 2-2004
Vernon Substation No. 2 Section
Reference: Myers Power Products (Pioneer Power Systems Division) Quotation No. 15716
Dear Mr. Smith,
In response to your request for a quotation dated March 31, 2004, we are pleased to offer the following
proposal for.your.evaluation and acceptance.
Terms and Conditions
TAXES:
Our proposal does not include sales or use tax If a tax exemption certificate is not finmshed, all
applicable taxes will be added to the invoice.
PAYMMW TERMS:
100%, Net 30 days after shipment
(Retention's are not allowed unless pre -approved by Myers Power Products)
PROPOSAL VALIDITY:
Our proposal is valid for 30.days from the quotation date, with prices firm through the quoted delivery
date.
FRE---IGHT:
F.O.B. Job site — Full freight is allowed to Vernon, CA. Offloading by others.
WARRANTY:
Our equipment is warranted for a period of 12 months after energization or 18 months after the
shipment, whichever occurs first. Neither in -and -out charges nor consequential damages are included
corporate Headquarters: 725 East Harrison Street Corona. CA 92679 • Tet (909) 555-1212 • Fax: (909) 555-1212
www.myerspoweqxoducts.com oducts.com
® City of Vernon
Mr. Otis Smith
April 6, 2004
Page Two
CANCELLATION CHARGES:
10% - Order received and entered. on factory, work not started, material'not ordered
30% - Drawings for approval / or record submitted (if applicable).
601/o'-. Drawings approved and released for manufacturing
80% - Material accumulated and production started
100%.- Manufacturing completed
DELIVERY SCHEDULE:
Our standard shipping schedule for this type of equipment is as follows:
• Drawings for approval will be submitted 30-45 days after receipt ofpurchase order
• Shipment of the completed electrical equipment will be 14 weeks after receipt of the approved
drawings.
SCOPE OF WORK —and- PRICE SCHEDULE:
Qty (1) 15kV N 1 Metal Clad Switchgear per the attached BOM
TOTAL SELL PRICE: a609.600. 00 NET
Thank you fqr your continued interest in -Myers Power Products (Pioneer Power Systems Division).
Please feel free to contact us for any further information or assistance.
Sincerely,
MYERS POWER PRODUCTS
Satish Patel
VP Esthnatmg
�-1
Myers Power -Products
Quotation No. 15716
Bill of Material
City of Vernon Utilities
Vernon Substation #2 Section
April 6, 2004
Page.1 of 2
(1) JAY N 1 Metal Clad Switcbeear - consist of the following material:
Description
Mrorcelain
Malburg Generating Station
ndoor Section, 11 & 13 ga, 36Lx98Dx95H provision for VCB
Insulators, 15kV, 6 insulators per this adder
LOT
Copper Main Bus, 3000A, Epoxy Coated, per section
LOT
Copper Reserve Bus, 3000A, Epoxy Coated, per section
22
1200A. Cu Line/Load Bus, Epoxy Coated, per section
4
3000A Cu Line/Load Bus, -Epoxy Coated, per section
2
Riser to Bus Run 3000A, Epoxy Coated, per section
21
15kV, 40KA, 1200A VCB Element, Circuit Breaker Element
21
15kV, 1200A, cell only
4
15kV, 40KA, 3000A VCB Element, Circuit Breaker Element
4--
15kV, 3000A, cell only
25.
10A & 1OB MOC
25
SA & 5B TOC
1
Portable Lifter
1
Accessories
1
Test Jumper,
1
Test Cabinet
1
Ramp
69
Current Transformer,1200:5, #75OX110605, Single Ratio, C200 (M #780402)
87
Current Transformer, 4000:5, #750XI 10669, High Ratio, SR, C400(M #785402)
11
Ground Current Transformer, Type BYZ
9
Potential Transformer, Drawer
24
Potential Transformer, 7200:120V
1
PARTIAL DISCHARGE DETECTION PACKAGE with:
2- InsulGard, Humidity & Temp., Cutler Hammer #CHPD-6022
8 — Sensor Package, Cutler Hammer #81602R2
13 — RF CTS, cutler Hammer #CHPD-1008
1 — RS232-RS485 Converter, Cutler Hammer ##CHPD-60006
Myers Power Products
Quotation No. 15716
Bill of Material
City of Vernon Utilities
Vernon Substation #2 Section
April 6, 2004
Page 2 of 2
QtY
Description
ITEM 1
2
Ground Lug, Screw down type, 4/0 —1/0 AWG
.66
Strip Heater, 240V, 250W w/ Guard
11
Thermostat
2
GROUND PADS .
33
LA, 12kV, Distribution Type #9L23AXX012XHS
EXHIBIT B
INSURANCE SCHEDULE
Myers 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
If. Liabili
General Liability
$1,000,000
$2,000,000
$1,000,000
Premises Operations
$1,000,000
$2,000,000
$1,000,000
Independent Contractor
$1,000,000
$2,000,000
$1,000,000
Products - Completed Operations
$1,000,000
$2,000,000
$1,000,000
Contractual Liabilitv
$1,000,000
$2,000,000
$1,000,000
Umbrella Liability
$5 000 000
$5 000 000
$5 000 000
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 Contract.
4. Such other endorsement as may be required by addendum hereto.
16
01910/0001 104708.1