Resolution No. 85891
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RESOLUTION NO. 8589
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AN AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND
HILL BROTHERS CHEMICAL CO. 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 the services
of a vendor to provide Aqua Ammonia for the Malburg Project emissions
control system (hereinafter referred to as the "Aqua Ammonia"); and
WHEREAS, Hill Brothers Chemical Company ("Hill Brothers"),
submitted a proposal dated October 26, 2004, tQ provide the Aqua
Ammonia; and
WHEREAS, the City has determined that Hill Brothers possesses
the technical knowledge and expertise to furnish the Aqua Ammonia for
the Malburg Project; and
WHEREAS, on November 3, 2004, the Finance Committee
considered the recommendation of Bruce V. Malkenhorst, Director of
Finance, dated October 28, 2004, that an agreement with Hill Brothers
be approved and executed; and
WHEREAS, the City Council of the City of Vernon has
I determined that, pursuant to the provisions of subsection (a) of
3 Section 2.2-7 of the Vernon City Code, it is in the public interest and
necessity to enter into an agreement with Hill Brothers.
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
I finds and determines that the recitals contained hereinabove are true
i and correct.
11 SECTION 2: The City Council of the City of Vernon hereby
approves the Ammonia Delivery Purchase Contract with Hill Brothers
12 Chemical Company, in substantially the same form as the copy which is
13 attached hereto as Exhibit A and incorporated by reference.
13 SECTION 3: The City Council of the City of Vernon hereby
13 authorizes the Mayor and the City Clerk to execute said Contract for,
14 and on behalf of, the City of Vernon.
17 SECTION 4: The City Council of the City of Vernon hereby
1t directs the City Clerk, or his designee, to send one fully executed
li Contract to:
29 Hill Brothers Chemical Company
21 Attn. Chief Executive Officer
1675 N. Main St.
22 Orange, CA 92867
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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 3Id day of November, 2004.
ATTEST:
BRUCE V. MALKENHORST, City Clerk
LEONIS C. MA URG, Nayor
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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.
8589, was duly adopted by the City Council of the City of Vernon at a
regular meeting of the City Council duly held on Wednesday, November 3,
2004, and thereafter was duly signed by the Mayor of the City of
Vernon.
(SEAL)
BRUCE V. MALKENHORST, City Clerk
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EXHIBIT
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DRAFT
AMMONIA DELIVERY PURCHASE CONTRACT
THIS AMMONIA DELIVERY PURCHASE 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 3`d day of November, 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 HILL BROTHERS CHEMICAL COMPANY
(hereinafter referred to as "Hill Brothers")
1675 N. Main St.
Orange, CA 92867
RECITALS
WHEREAS, 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 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 firm to deliver Aqua Ammonia for the emissions control system at the Malburg Project site
(hereinafter referred to as the "Ammonia Delivery") for the Malburg Project; and
WHEREAS, Hill Brothers prepared a proposal dated October 26, 2004
(hereinafter referred to as the "Proposal"), a copy of which is attached hereto as Exhibit A and
incorporated by reference, for the Ammonia Delivery; and
WHEREAS, Hill Brothers represents that it is qualified and capable of furnishing
the labor, materials and expertise necessary to furnish the Ammonia Delivery and perform the
services that the City requires, as set forth in the Proposal and is willing to do so on the terms and
conditions set forth below; and
WHEREAS, the City desires to enter into an agreement with Hill Brothers to
provide for the labor and materials necessary for the Ammonia Delivery.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Purchase and Sale of the Aaua Ammonia.
1.1 Aqua Ammonia. Hill Brothers shall sell and deliver, and the City shall
purchase the Ammonia 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. Hill Brothers shall obtain, sell and deliver the Ammonia at the
City of Vernon, F.O.B. Job Site. Hill Brothers is responsible for all costs of full freight,
including insurance, to Job Site. Risk of loss shall pass to the City upon delivery F.O.B. Job Site.
2. Time of Performance. Hill Brothers shall commence and complete the Ammonia
Delivery as follows: .
2.1 Time Schedule. The term of this Agreement shall commence no later than
thirty (30) days after the City's issuance of a Purchase Order (the "Commencement Date") to
begin performance under this Agreement and shall continue through June 30, 2005, with an
option to continue said Agreement from July 1, 2005 through June 30, 2006 on the same terms
and conditions as prescribed in this Agreement, subject to any change in the rate of compensation
to be paid Hill Brothers as provided in subsection (b). Hill Brothers shall complete delivery of
the Ammonia Delivery no later than forty-eight (48) hours from receipt of order (the "Delivery
Time"). Unless performance is excused, as set forth in Paragraph 2.2, Hill Brothers' failure to
make the Ammonia Delivery 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.
(a) If City desires, at its sole discretion, to exercise its renewal option, City
shall advise Hill Brothers in writing of its intent to extend the Agreement by not later than 30
days prior to the term expiring. The City Administrator, or his designee, is authorized to exercise
said option on behalf of City. If Hill Brothers desires to adjust the rates as set forth herein, Hill
Brothers shall give City written notice of such adjustment 60 days prior to the term expiring.
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(b) If City gives notice of its intention to extend the Agreement from July 1,
2005 through June 30, 2006 as provided for above, Hill Brothers guarantees a maximum $25.00
per ton cap.
2.2 Force Mai eure. 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,
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 Hill Brothers 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 Hill Brothers, Hill Brothers shall
be entitled to an increase in the Contract Sum, but only in any amount equal to the increase in
Hill Brothers ' direct cost resulting from such delay.
3. Contract Sum. The purchase price for the Ammonia Delivery is the sum of Five
Hundred Fifty Dollars and No Cents ($550.00) per ton plus Two Hundred Dollars and No Cents
($200.00) for freight per delivery, for a not to exceed cost of Forty -Four Thousand Dollars and
No Cents ($44,000.00) per month plus freight, under full operation mode (the "Contract Sum").
Such rates shall be guaranteed until June 30, 2005. Freight includes two (2) hours of offloading
time. For after hours delivery, City shall pay overtime of Forty Dollars and No Cents ($40.00)
per hour, portal to portal, with a four (4) hour minimum. Normal delivery hours shall be Monday
through Friday from 7:00 a.m. to 3:30 p.m.
If City exercises its option to continue the Agreement from July 1, 2005 through
June 30, 2006, the purchase price for the Ammonia Delivery shall not exceed the sum of Five
Hundred Seventy -Five Dollars and No Cents ($575.00) per ton plus Two Hundred Dollars and
No Cents ($200.00) for freight per delivery.
4. Payment Terms.
4.1 Payment. One hundred percent (100%) of the Contract Sum shall be paid
within thirty (30) days after (a) the City's receipt and approval of the Ammonia Delivery and (b)
the City's receipt ,
provided by the manufaetur-er-s, and operating manuals, speeifieations, and ether- deetifnentatie
neeessar-y and appropriate fer- the installation, epemfien, and maintenanee, and repair- ef the
Ammenia Delivery; eelleefive!54, the " ' ; of an invoice in a
form reasonably acceptable to the City from Hill Brothers;City's
� �sxurxiazits of all fvow va.� .,tio...,n guarantees in favor- ,.fthe Gity i r ..�...n
a-
substa„ o b ept blthe City; ..n (e) the City. _ pt --r -yidenee -f rr.ii
vat uvvti e to
Rrwth « ' payment _ s __r_ _ .
nt of al ,. of its ,..hga with thisraInvoices shall
contain an itemization of services rendered and other directly related job expenses and
subcontract charges incurred by Hills Brothers and for which compensation is due. Hills
Brothers shall be responsible for paying any subcontractors used in the performance of this
Agreement. Subcontractors shall not bill the City directly. Payment of the invoice shall be made
after acceptance and approval by the City within thirty (30) days of receipt. The City's approval
of the invoice shall not be unreasonably withheld.
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 Hill Brothers if Hill Brothers is in
default of any of its obligations under this Contract; any portion of the Ammonia Delivery is
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defective or not in accordance with the terms of this Contract (provided, however, that payment
shall be made as to any portion of the Ammonia Delivery 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
Ammonia Delivery by the City shall constitute an acceptance of any Ammonia Delivery not in
accordance with the terms of this Contract.
5. Hill Brothers' Representations Warranties and Covenants
5.1 Capability. Hill Brothers represents to the City that it is qualified, willing,
and able to obtain, sell, and deliver the Ammonia.
5.2 tip Hill BFethers shall inspeet the Ammonia Delivery .+
IMM Him
5.3 AssiQnment of Warranties; Delivery of Documentation. Hill Brothers
shall assign to the City at the time of the Ammonia Delivery all manufacturers' warranties and
Hill Brothers shall assemble and deliver to the City complete copies of all warranties, guaranties,
and operating and maintenance data and all other documentation (as define i Pamgr p ^ , �
from all manufacturers pursuant to this Contractll
5.4 Compliance with Law. Hill Brothers shall strictly observe and comply
with all applicable federal, state, and local laws, ordinances, and regulations governing the sale
and delivery of the Ammonia Delivery, including, but not limited to any permit or license
requirements of the United States Department of Commerce.
5.5 Authorizations. Hill Brothers 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. Hill Brothers warrants that title to Ammonia Delivery will
pass to the City either by incorporation in the construction or upon the receipt of payment by Hill
Brothers, whichever occurs first, free and clear of all liens, claims, security interests or
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encumbrances, and that no seller of any Ammonia Delivery or any portion thereof will retain an
interest therein or an encumbrance thereon.
5.7 Pavments to Third Parties. Hill Brothers shall promptly pay all bills for
labor and materials furnished by others in connection with this Contract.
5.8 Warran .
5.8.1 Hill Brothers' Warranties. Hill Brothers warrants that all
Ammonia Delivery 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 Ammonia Delivery 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 Hill Brothers or the City reveals that any portion
of the Ammonia Delivery does not meet the City's specifications or the City identifies any
defects in or damage to the Ammonia Delivery, Hill Brothers shall promptly repair or replace any
defective Ammonia Delivery; 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 Ammonia from that vendor, and obtaining another vendor to provide that
Ammonia. Hill Brothers 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
Ammonia Delivery, including any damage caused to the City's existing Ammonia Delivery and
the Vernon Substation or the Malburg Project by the use of defective Ammonia provided by Hill
Brothers
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5.8.2 Manufacturers' Warranties. Hill Brothers shall obtain for the
benefit of the City, and assign to the City, commercially reasonable manufacturers' warranties €er
partsand laber, which shall commence one (1) year from the date of ifistallatie of the Ammonia
Delivery being purchased by the City under this Contract or the City's acceptance of the
Ammonia Delivery being purchased hereunder, whichever occurs first. Hill Brothers shall assist
the City in the enforcement of all such warranties.
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5.8.3 Warranty Period. Hill Brothers, 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)
Ammonia Delivery rejected by the City as defective or as failing to conform to this Contract if
reported to Hill Brothers within the Warranty Period. The Warranty Period shall be the period of
(a) one (1) year from the date of Ammonia Delivery being purchased hereunder or from the date
of the City's acceptance of the Ammonia Delivery 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 repaired or replaced
Ammonia Delivery on the date the repair or replacement was made. Hill Brothers' obligations
hereunder shall include the obligation to repair any damage to other property caused by the
defective Ammonia Delivery or the repair thereof. Hill Brothers 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 Ammonia Delivery found to be defective or not in accordance with this
Contract, or (b) the correction of any such Ammonia Delivery.
The foregoing representations, warranties, covenants, and agreements shall survive
any termination of this Contract and final completion of the delivery of the Ammonia Delivery
and are in addition to, and not in lieu of, any and all other liability imposed upon Hill Brothers by
law with respect to Hill Brothers' duties, obligations and performance hereunder.
6. Indemnification.
6.1 Hill Brothers' Indemnity. To the fullest extent permitted by law, Hill
Brothers 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 Hill Brothers or its employees or agents in the
delivery of Ammonia Delivery under this Contract, except to the extent arising from or caused by
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f
e sole negligence or willful misconduct of the City, its officers, agents or employees. The
tams of this indemnity shall survive the termination of this Contract. The obligations in this
Pardgraph are in addition to Hill Brothers' duty to provide insurance and shall not be limited by
any limitation on the amount or type of insurance coverage carried by Hill Brothers.
6.2 Indemnity Process. The City shall notify Hill Brothers in writing of any
snits, claims or demands covered by this indemnity. Promptly after receipt of such notice, Hill
+Others shall assume the defense of such claim with counsel reasonably satisfactory to City. If
E511 Brothers fails, within a reasonable time after receipt of such notice, to assume the defense
wiffi 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
jedgment of City the assumption and conduct of the defense by Hill Brothers would materially
and adversely affect City in any manner or prejudice its ability to conduct a successful defense,
Oren the City shall have the right to undertake the defense, compromise and settlement of such
claim for the account and at the expense of Hill Brothers . Notwithstanding the above, if the City
in its sole discretion so elects, City may also participate in the defense of such actions by
ma ploying counsel at its expense, without waiving the City's obligations to indemnify or defend.
gill Brothers shall not settle or compromise any claim or consent to the entry of any judgment
wAout the prior written consent of the City and without an unconditional release of all liability
byeach claimant or plaintiff to the City.
7. Change Orders. The City reserves the right to make additions to or deletions from
ie Ammonia Delivery being purchased under this Contract. All such changes shall be
i Worporated in written change orders executed by the City. The Change Orders shall specify the
clranges ordered and the adjustment of prices, delivery schedules and warranties. Any Ammonia
Delivery or services added to this Contract under a Change Order shall be subject to all of the
#rams and conditions of this Contract, except as otherwise set forth in the Change Order. No
claim for 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 Hill
Brothers.
8.2 Termination by City Without Cause In the event of termination by the
City without cause, Hill Brothers shall be compensated for all Ammonia Delivery 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 Hill Brothers directly attributable to termination which
could not reasonably have been avoided and for which Hill Brothers 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 Hill Brothers without Cause If
Hill Brothers breaches this Contract, the City shall notify Hill Brothers in writing of said breach
and if Hill Brothers 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 15fl' day following delivery of notice to Hill Brothers for
cause. Hill Brothers shall be responsible for all direct and indirect costs due to the City's re -
procurement of the equivalent of the Ammonia Delivery cancelled pursuant to this Paragraph 8.3.
If this Contract is terminated by the City with cause, or terminated by Hill Brothers without
cause, the City shall pay Hill Brothers for all Ammonia Delivery 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 Hill Brothers '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, Hill Brothers shall have no
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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, Hill Brothers 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 Hill
Brothers or a party engaged by Hill Brothers; provided, however, that solely for its internal
auditing purposes, Hill Brothers may, at its sole expense, make and retain copies of Work
Product materials, subject to the confidentiality provisions of Paragraph 10. Hill Brothers 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
Hill Brothers '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 Hill Brothers, its officers, employees, agents in the
course of performing the obtaining, delivering, and selling to the City the Ammonia Delivery
sold under this Contract (collectively, the "Work Product"), but excluding working notes and
internal 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 Hill Brothers or to any other party.
Work Product materials shall be delivered to City by Hill Brothers as they are generated.
10. Confidential Information.
10.1 Access to Confidential Information. The City may provide Hill Brothers
or allow Hill Brothers 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 Hill Brothers for any purpose other than to perform its duties hereunder.
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10.2 No Disclosure. Except as expressly permitted by prior written consent of
the City, Hill Brothers 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. Hill Brothers 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 Hill Brothers has delivered all Ammonia Delivery to be delivered pursuant to this Contract.
Hill Brothers hereby agrees that such Confidential Information and any documents provided may
be used by Hill Brothers only as authorized by the City.
10.3 Court Ordered Disclosure. Hill Brothers 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. Hill
Brothers may only disclose Confidential Information required to be disclosed pursuant to court
order or subpoena after legal counsel has exhausted any lawful and timely appeal or challenge.
10.4 Exceptions to Confidentiality. The foregoing obligations shall not apply to
any Confidential Information lawfully in Hill Brothers '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 Hill Brothers.
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.
Hill Brothers 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
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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
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
HILL BROTHERS: HILL BROTHERS CHEMICAL COMPANY
1675 N. Main Street
Orange, CA 92867
Attn: Chief Executive Officer
11.5 Status of Hill Brothers. At all times during the term of this Contract, Hill
Brothers shall be an independent contractor. Except as the City may specify in writing, Hill
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Brothers shall have no authority, express or implied, to act on behalf of the City in any capacity
whatsoever as an agent. Hill Brothers shall have no authority, expressed or implied, pursuant to
this Contract to bind the City to any obligation whatsoever.
11.6 Insurance. Hill Brothers agrees to provide insurance in the amounts and
forms specified in Exhibit B, which is attached hereto and incorporated by reference. Hill
Brothers 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.
Hill Brothers 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 annroved by the Citv.
11.7 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 Hill
Brothers may purchase from other vendors and manufacturers the Ammonia Delivery to be
delivered by Hill Brothers hereunder, and Hill Brothers may by written request assign any right
to receive monies earned hereunder. OR
11.8 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
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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.
11.9 Time of the Essence. Time is of the essence in the performance of this
Contract.
11.10 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.
[ADD TRANS-8 LANGUAGE]
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.
ATTEST:
Bruce V. Malkenhorst, City Clerk
APPROVED AS TO FORM
Eric T. Fresch, City Attorney
14
LIN
CITY OF VERNON
LEONIS C. MALBURG, Mayor
HILL BROTHERS CHEMICAL COMPANY
By:
Typed Name:
Title:
By:
Typed Name:
Title:
AMMONIA DELIVERY PURCHASE CONTRACT
THIS AMMONIA DELIVERY PURCHASE 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 December, 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 HILL BROTHERS CHEMICAL COMPANY
(hereinafter referred to as "Hill Brothers")
1675 N. Main St.
Orange, CA 92867
RECITALS
WHEREAS, City is constructing the Malburg Generating Station Combined Cycle
Power Plant at 2715 E. 50"' 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 firm to deliver Aqua Ammonia for the emissions control system at the Malburg Project site
(hereinafter referred to as the "Ammonia Delivery") for the Malburg Project; and
WHEREAS, Hill Brothers prepared a proposal dated October 26, 2004
(hereinafter referred to as the "Proposal"), a copy of which is attached hereto as Exhibit A and
incorporated by reference, for the Ammonia Delivery; and
WHEREAS, Hill Brothers represents that it is qualified and capable of furnishing
the labor, materials and expertise necessary to furnish the Ammonia Delivery and perform the
services that the City requires, as set forth in the Proposal and is willing to do so on the terms and
conditions set forth below; and
WHEREAS, the City desires to enter into an agreement with Hill Brothers to
provide for the labor and materials necessary for the Ammonia Delivery.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Purchase and Sale of the Aqua Ammonia.
1.1 Aqua Ammonia. Hill Brothers shall sell and deliver, and the City shall
purchase the Ammonia 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. Hill Brothers shall obtain, sell and deliver the Ammonia at the
City of Vernon, F.O.B. Job Site. Hill Brothers is responsible for all costs of full freight,
including insurance, to Job Site. Risk of loss shall pass to the City upon delivery F.O.B. Job Site.
1.3 TRANS-8 DelivM Provision. Hill Brothers shall use only the following
"preferred" truck travel routes for deliveries of the Ammonia to the Malburg Project site. If Hill
Brothers notifies the Operations Manager that conditions are such that the preferred route is not
the safest route, then the "alternate" route shall be used upon approval by the Operations
Manager:
Preferred --From Interstate 710, exiting at Bandini Boulevard, Trucks will
then travel west along Bandini Boulevard, south on Soto Avenue, and finally west on 5001 Street
to the Malburg Project site.
Alternate --Delivery trucks traveling northbound on Interstate 5 shall exit at
Garfield Avenue. Trucks will then travel west along Telegraph Road, south on Garfield Avenue,
west on Bandini Boulevard, south on Soto Avenue and finally west on 50th Street to the Malburg
Project site.
The City may re-route deliveries from the alternate route to another
alternate route only after obtaining the necessary compliance approval and written notification to
Hill Brothers of new alternate route.
2. Time of Performance. Hill Brothers shall commence and complete the Ammonia
Delivery as follows:
2.1 Time Schedule. The term of this Agreement shall commence no later than
thirty (30) days after the City's issuance of a Purchase Order (the "Commencement Date") to
2
begin performance under this Agreement and shall continue through June 30, 2005, with an
option to continue said Agreement from July 1, 2005 through June 30, 2006 on the same terms
and conditions as prescribed in this Agreement, subject to any change in the rate of compensation
to be paid Hill Brothers as provided in subsection (b). Hill Brothers shall complete delivery of
the Ammonia Delivery no later than forty-eight (48) hours from receipt of order (the "Delivery
Time"). Unless performance is excused, as set forth in Paragraph 2.2, Hill Brothers' failure to
make the Ammonia Delivery 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.
(a) If City desires, at its sole discretion, to exercise its renewal option, City
shall advise Hill Brothers in writing of its intent to extend the Agreement by not later than 30
days prior to the term expiring. The City Administrator, or his designee, is authorized to exercise
said option on behalf of City. If Hill Brothers desires to adjust the rates as set forth herein, Hill
Brothers shall give City written notice of such adjustment 60 days prior to the term expiring.
(b) If City gives notice of its intention to extend the Agreement from July 1,
2005 through June 30, 2006 as provided for above, Hill Brothers guarantees a maximum $25.00
per ton cap.
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,
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
3
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 Hill Brothers 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 Hill Brothers, Hill Brothers shall
be entitled to an increase in the Contract Sum, but only in any amount equal to the increase in
Hill Brothers ' direct cost resulting from such delay.
3. Contract Sum. The purchase price for the Ammonia Delivery is the sum of Five
Hundred Fifty Dollars and No Cents ($550.00) per ton plus Two Hundred Dollars and No Cents
($200.00) for freight per delivery, for a not to exceed cost of Forty -Four Thousand Dollars and
No Cents ($44,000.00) per month plus freight, under full operation mode (the "Contract Sum").
Such rates shall be guaranteed until June 30, 2005. Freight includes two (2) hours of offloading
time. For after hours delivery, City shall pay overtime of Forty Dollars and No Cents ($40.00)
per hour, portal to portal, with a four (4) hour minimum. Normal delivery hours shall be Monday
through Friday from 7:00 a.m. to 3:30 p.m.
If City exercises its option to continue the Agreement from July 1, 2005 through
June 30, 2006, the purchase price for the Ammonia Delivery shall not exceed the sum of Five
Hundred Seventy -Five Dollars and No Cents ($575.00) per ton plus Two Hundred Dollars and
No Cents ($200.00) for freight per delivery.
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 and approval of the Ammonia Delivery and (b)
the City's receipt of an invoice in a form reasonably acceptable to the City from Hill Brothers.
Invoices shall contain an itemization of services rendered and other directly related job expenses
and subcontract charges incurred by Hill Brothers and for which compensation is due. Hill
Brothers shall be responsible for paying any subcontractors used in the performance of this
Agreement. Subcontractors shall not bill the City directly. Payment of the invoice shall be made
after acceptance and approval by the City within thirty (30) days of receipt. The City's approval
of the invoice shall not be unreasonably withheld.
El
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 Hill Brothers if Hill Brothers is in
default of any of its obligations under this Contract; any portion of the Ammonia Delivery 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 Ammonia Delivery 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
Ammonia Delivery by the City shall constitute an acceptance of any Ammonia Delivery not in
accordance with the terms of this Contract.
5. Hill Brothers' Representations, Warranties, and Covenants.
5.1 Capability_ Hill Brothers represents to the City that it is qualified, willing,
and able to obtain, sell, and deliver the Ammonia.
5.2 Assitmment of Warranties; Delivery of Documentation. Hill Brothers
shall assign to the City at the time of the Ammonia Delivery all manufacturers' warranties and
Hill Brothers shall assemble and deliver to the City complete copies of all warranties, guaranties,
and operating and maintenance data and all other documentation from all manufacturers pursuant
to this Contract.
5.3 Compliance with Law. Hill Brothers shall strictly observe and comply
with all applicable federal, state, and local laws, ordinances, and regulations governing the sale
and delivery of the Ammonia Delivery, including, but not limited to any permit or license
requirements of the United States Department of Commerce.
5.4 Authorizations. Hill Brothers is authorized to do business in California
and properly licensed and registered by all governmental authorities having jurisdiction over it.
5.5 Title to City. Hill Brothers warrants that title to Ammonia Delivery will
pass to the City either by incorporation in the construction or upon the receipt of payment by Hill
Brothers, whichever occurs first, free and clear of all liens, claims, security interests or
5
. encumbrances, and that no seller of any Ammonia Delivery or any portion thereof will retain an
interest therein or an encumbrance thereon.
5.6 Payments to Third Parties. Hill Brothers shall promptly pay all bills for
labor and materials furnished by others in connection with this Contract.
5.7 Warran .
5.7.1 Hill Brothers' Warranties. Hill Brothers warrants that all
Ammonia Delivery 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 Ammonia Delivery 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 Hill Brothers or the City reveals that any portion
of the Ammonia Delivery does not meet the City's specifications or the City identifies any
defects in or damage to the Ammonia Delivery, Hill Brothers shall promptly repair or replace any
defective Ammonia Delivery; 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 Ammonia from that vendor, and obtaining another vendor to provide that
Ammonia. Hill Brothers 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
Ammonia, including any and all damages caused to the City's existing Ammonia storage and/or
Delivery system and the Vernon Substation or the Malburg Project by the use of defective
Ammonia provided by Hill Brothers.
5.7.2 Manufacturers' Warranties. Hill Brothers shall obtain for the
benefit of the City, and assign to the City, commercially reasonable manufacturers' warranties,
which shall commence one (1) year from the date of the Ammonia Delivery being purchased by
the City under this Contract or the City's acceptance of the Ammonia Delivery being purchased
hereunder, whichever occurs first. Hill Brothers shall assist the City in the enforcement of all
such warranties.
0
5.7.3 Warranty Period. Hill Brothers, 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)
Ammonia Delivery rejected by the City as defective or as failing to conform to this Contract if
reported to Hill Brothers within the Warranty Period. The Warranty Period shall be the period of
(a) one (1) year from the date of Ammonia Delivery being purchased hereunder or from the date
of the City's acceptance of the Ammonia Delivery 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 replaced Ammonia
on the date the replacement was made. Hill Brothers' obligations hereunder shall include the
obligation to repair any damage to other property caused by the defective Ammonia Delivery or
the repair thereof. Hill Brothers 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 Ammonia
Delivery found to be defective or not in accordance with this Contract, or (b) the correction of
any such Ammonia Delivery.
The foregoing representations, warranties, covenants, and agreements shall survive
any termination of this Contract and final completion of the delivery of the Ammonia Delivery
and are in addition to, and not in lieu of, any and all other liability imposed upon Hill Brothers by
law with respect to Hill Brothers' duties, obligations and performance hereunder.
6. Indemnification.
6.1 Hill Brothers' Indemnity. To the fullest extent permitted by law, Hill
Brothers 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 Hill Brothers or its employees or agents in the
delivery of Ammonia Delivery under this Contract, except to the extent arising from or caused by
VA
. the sole negligence or willful misconduct of the City, its officers, agents or employees. The
terms of this indemnity shall survive the termination of this Contract. The obligations in this
Paragraph are in addition to Hill Brothers' duty to provide insurance and shall not be limited by
any limitation on the amount or type of insurance coverage carried by Hill Brothers.
6.2 Indemnity Process. The City shall notify Hill Brothers in writing of any
suits, claims or demands covered by this indemnity. Promptly after receipt of such notice, Hill
Brothers shall assume the defense of such claim with counsel reasonably satisfactory to City. If
Hill Brothers 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 Hill Brothers 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 Hill Brothers . 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.
Hill Brothers 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 Ammonia Delivery 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 Ammonia
Delivery 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 additional compensation or extension of time shall be valid or recognized unless
contained in a Change Order signed by the Chief Executive Officer of the Light & Power
Department.
8
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 Hill
Brothers.
8.2 Termination by City Without Cause. In the event of termination by the
City without cause, Hill Brothers shall be compensated for all Ammonia Delivery 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 Hill Brothers directly attributable to termination which
could not reasonably have been avoided and for which Hill Brothers 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 Hill Brothers without Cause. If
Hill Brothers breaches this Contract, the City shall notify Hill Brothers in writing of said breach
and if Hill Brothers 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 Hill Brothers for
cause. Hill Brothers shall be responsible for all direct and indirect costs due to the City's re -
procurement of the equivalent of the Ammonia Delivery cancelled pursuant to this Paragraph 8.3.
If this Contract is terminated by the City with cause, or terminated by Hill Brothers without
cause, the City shall pay Hill Brothers for all Ammonia Delivery 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 Hill Brothers '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
9
Contract, except for its obligations under Paragraph 12.5 below, Hill Brothers 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, Hill Brothers 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 Hill
Brothers or a party engaged by Hill Brothers; provided, however, that solely for its internal
auditing purposes, Hill Brothers may, at its sole expense, make and retain copies of Work
Product materials, subject to the confidentiality provisions of Paragraph 10. Hill Brothers 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
Hill Brothers' 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 Hill Brothers, its officers, employees, agents in the
course of performing the obtaining, delivering, and selling to the City the Ammonia Delivery
sold under this Contract (collectively, the "Work Product"), but excluding working notes and
internal 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 Hill Brothers or to any other party.
Work Product materials shall be delivered to City by Hill Brothers as they are generated.
10. Confidential Information.
10.1 Access to Confidential Information. The City may provide Hill Brothers
or allow Hill Brothers 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
10
the City. All such non-public information shall be known as "Confidential Information" and may
not be by Hill Brothers 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, Hill Brothers 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. Hill Brothers 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 Hill Brothers has delivered all Ammonia Delivery to be delivered pursuant to this Contract.
Hill Brothers hereby agrees that such Confidential Information and any documents provided may
be used by Hill Brothers only as authorized by the City.
10.3 Court Ordered Disclosure. Hill Brothers 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. Hill
Brothers may only disclose Confidential Information required to be disclosed pursuant to court
order or subpoena after legal counsel has exhausted any lawful and timely appeal or challenge.
10.4 Exceptions to Confidentiality. The foregoing obligations shall not apply to
any Confidential Information lawfully in Hill Brothers '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 Hill Brothers.
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.
Hill Brothers 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
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
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
12
HILL BROTHERS: HILL BROTHERS CHEMICAL COMPANY
1675 N. Main Street
Orange, CA 92867
Attn: Chief Executive Officer
11.5 Status of Hill Brothers. At all times during the term of this Contract, Hill
Brothers shall be an independent contractor. Except as the City may specify in writing, Hill
Brothers shall have no authority, express or implied, to act on behalf of the City in any capacity
whatsoever as an agent. Hill Brothers shall have no authority, expressed or implied, pursuant to
this Contract to bind the City to any obligation whatsoever.
11.6 Insurance. Hill Brothers agrees to provide insurance in the amounts and
forms specified in Exhibit B, which is attached hereto and incorporated by reference. Hill
Brothers 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.
Hill Brothers 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.
Hill Brothers shall not permit a subcontractor or vendor to perform work on City premises unless
and until a certificate of insurance is obtained showing that such subcontractor or vendor has
worker's compensation coverage. Hill Brothers employs subcontractors as part of the services
rendered, Hill Brothers' protective coverage is required. Hill Brothers may include all
subcontractors as insureds under its own policy or shall furnish separate insurance for each
subcontractor, meeting the requirements set forth herein.
11.7 Operations Manager. The City's Operation Manager is Manuel G. Garcia.
The City reserves the right, in the City's sole discretion, to replace Mr. Garcia as the City's
Operations Manager upon notice to Hill Brothers.
11.8 Assignment and Subcontracting Prohibited. No party to this Agreement
may assign or subcontract any right or obligation pursuant to this Agreement except with the
express written consent of the other party. Any other attempted or purported assignment of any
right or obligation pursuant to this Agreement shall be void and of no effect.
13
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.
Contract.
11.10 Time of the Essence. Time is of the essence in the performance of this
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 havecaused this Contract to be executed
by and through their authorized officers on the date, month and year first written above.
CITY OF VERNON
By:
LEONIS C. MALBUR , Mayor
ATTEST:
Bruce V. Malkenhorst, City Clerk
APPROVED AS TO RM
Eric T. Fresch, City Attorney
HILL BROTHS S C YMICL COMPANY
Matt Thorne
Executive Vice President
By:
Tom James
Chief Financial Officer
14
EXHIBIT A
Oct, H.• 2004.10:50AM
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1 h,t
3 Since
1923,�a
SAFO
No•4354 P. 2
MILL BROTH ERrl,.,.,Ie,,
SOUTHERN CALIFORNIA REGIONAL SALES OFFICE
3000 EAST BIRCH STREET - SUITE 108 • BREA. CALIFORNIA 92821-6261
(714) 57"333 • FAX (714) 579,13M ORDER DESK (000) 322.4119
City of Vunou http://hitlbrothers.com
2715 E. 50"' Strw;t
Attn: Carlos It Vandino Jr.
Donald Quiroz.
October 26, 2004
Subject: 19% Aqua Ammoaia
!'ntegrity, Quably, Satiety And Scrvoce are the core values of Hill Brothers Chemical Company. 1''(r more Ulan
eighty,yeatrs Ilill Brothers has Iwovided a variety of chemical products to both the industrial and construction
markets. As a Western I Inited States based company, we operate seven sales divisions and tun litciliticq covering
the Weston) atatee.
Your H111 Brathlrs Representative:
Luis Cc vantus with 9 years of ammonia cxpraioux will bu ready to service all of your nttunonia nwis.
With 23 sales puuplu in thu Weston LI.S. uauh rules person Ins it vc V mtmageable territory euaNiog them to be
accessible and ruspunsivu to your spoci6c nods. Our local oaks office is at 3000 E. Pirch St, Suite 108 Brea,.
CA 92821 and our haul rrmrndauturing &&hies are located in City of Industry and Los Angeles, CA. C(nitact
tuluphunu numbas urn;
a Teleplione 714-579.3333
• Fax 714-579-3399
• Cell/ M 714-323-4526
• Order Desk 800.322-4119
Hill Brothers' Ammonia 1'nxluut Mangler IhT the wustcm U.S. is Byron Gundumm He has btxm in the
ammraiia industry ibr over 30 years. Hyrun is available for training and technical support.
• CuIUVM 602-321-5999
lRcst reh, Development, and QuIlty Controb `
A well slatted standalone theility for R&D, Tech Services and QC is located in City of industry, CA to
continually address the ever -changing issues of the chemical industry and customer requirements.
• Tony Gurcia — Diruu(ur of RAD with 104• ,yours dusip ing and managing; annaunin products for IJnosal
and 1-fill Drolluaa. Pa►jeuts include sturag;u, rail tnmns-loading, tupw ornvurl z insiallatious and many
uanu.
• Carl Thompson — Chief Chemist with 35+years experience in industrial chemistry
• Pudru Lozano Lab'fuuhniuian with 20+years uxpuritnce with Hill Broth#=
Qualify Assurance:
All of lull Brothers A(pm Ammonia is `virgin" manufactured product using high parity wat4r and
Industrial parade Anhydrous Ammonia. All our Aqua Ammonia transport vehicles are solely dedicated tr) single
product use.
"Nall ByPraduct Aqua Ammonia Assurance:
Hill Bro(huxs C:luanical Company prides ilsulf on quality products since 1923. At last itulustry-wide
uhouk wu arc; ouua of thu few Aqua Ammonia Mauufaulururs that does not handlu arty by-lmxluut Aqua Ammonia.
We Nel that aU aspects ol'the manufacturing prMess should he under our control.
CiTY OF INDUSTRY o LOS ANGELES 0 SAN DIEGO a PHOENIX • TUCSON • SAN JOSE 9 NORTH SALT LAKE
Oct.•2.6.• M04-10:50AM
No-4354 P. 3,
Safety and Environmental Compliance,
hail I Brothers Chemical Company so truly believes in safely and environmental compliance that we "put
our money where our mouth ix." We maintain a tour man, full time, Safety and Compliance Division in Orange,
California. ?his Division is fully equipped to pertirrrn all required ammenis safety training and is always
included tree ot'oharge.
• Bob Roth — Director of Corp, Safety and Compliance with over 20 years at the Unocal Anhydrous
Ammonia pmductior► facility in Kenai, Alaska. With his oertifteate in Environmental I Iealth and Safety
L�tw;�c+b-is-I�tnat-and-I�.ire,�lCht�Ol�ra�IlOd-a#lEl-�1tnR5eRRGS-11-�rt�t;-in=i�ur�►_Iiesottrcea.�Ie tnanagea a ----.
ourivitt staff of three safety techs to support. both in-house and customer related safety issues.
Hillbnothers.enm is an. excellent place to obtain MSDS sheets for over 120 products, Our Safety and Compliance
Division works closely with our Corporate Sale & Marketing Division to maintain a helpful and responsive site.
Driver Trainlhg:
Hill Brothers professional drivers are highly trained with all die nocessm HAZMA'1' endorson=ty and
credentials. Our drivers are pert of Hill Drothers' PSM compliant Facility in LA and City of Industry.
Dellveriea;
• (N%W Desk and After I•Iome Contact.: 1-800-322-4119
Deliveries are made within 24-48 hours from receipt of order. hill Drothers odt'ers 24 hours, 7 days per week
emergency deliveries. I:IIJCC will make all deliveries as required by paragraph "TRANS-8" as supplied by City
of Vemon.
Termn:
Paymtmt terms are nut 30 days.
llhyght includes (2) hours of unloading time, avx)mph *d in one hour normally.
L'No tirru; for aftur hours dclivuty is $40.00 per hour, portal to portal with a 4 hour minimum.
Propoeah Delivery point — Vernon, CA
Hill Brothers Chemical Company would like to submit for your favorable consideration the following proposal:
19%/Aqua Ammonia Price; $550.00 per contained Gin
Freight: $200.00 Per delivery
Minimum Aqua Ammonia delivery ix 5,000 p,411nne
This price is firm through June 30, 2005. A maximum $25.00 pet• ton cap will apply to this price f3+nm July 1,
2005 to Jura. 30, 2006.
Sincuruly,
HILL BRU'1HERS Cf l HM1CAT. COMPANY
4ek.-�
John Padilla, Jr.
Regional Sales Manager
JP.1/p..
Teresa Torres
seOct-_76 _2104-10_5]AM
A OV) n
HILL BROTHER", /
Over 75 ywre v1 C'u.tua wr l'ununiuuen�
714-99e—eiNo_4354 - g 4- �. t
Corporate Safety & Compliance Division
1.$75 North Main Street
Orange, CA 9 2 8 B 7
To: bonald Quiroz
cc;: Cariav R. randino Jr,
Fr: Robert Roth (714) 998-8800 — fax (7 14•) 998-8t 06
Date: September 1+, 2004, Pagea:3 rde: Vernma
Regarding: Trailer Specifications
Dear Mr. Quirox
The lbllowing information is presented as evidenm that our trailers art certified raider
DOT MC 307 standards. dill Brothers has two trailers capable ofdelive.ring Ary118
Ammonia to your facility in Vernon California. The trailer specifications are in the form
of attacluricvits. Our trailers are tested in accordance to regulatory standards and
maintained to the highest quality and estate of readiness. We take pride in our
equipment and will work with your organization to ensure that quality and safety is
always at the top ol'otlr list.
Sincerely,
Robcrt Koth
Directur of 5afety and Compliance
GM837SI26 S. T. L INC.
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EXHIBIT B
` EXHIBIT B
INSURANCE SCHEDULE
Hill Brothers 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 P=pM 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 $ StatutorX
Employers' Liability $1,000,000 per employ
II. Liabilitv
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 Agreement.
4. Such other endorsement as may be required by City.
b. In addition to the above, the Consultant shall provide such further proof of insurance
documentation as the City deems necessary.
15
CITY OF VERNON
LIGHT & POWER DEPARTMENT
CONTRACT CHANGE ORDER NO. 01 SUPPLEY NT NO. SHEET 9 OF 1 SHEETS
Ammonia
Delivery
PROJECT: Malburg Generating Station Combined Cycle Power Plant 12/3104 Purchase
Contract
TO: Hi11 Brothers Chemical Company _ VENDOR
REQUESTED BY: City of Vernon
You are hereby directed to make the herein. described changes, or do the following described work not included in the Agreement
em amanriad
CONFRA,CT E TENSfON- ADJUSTMENT IN COMPENSATION aN ACCORDANCE WfTD
S.EgTJON 3 CAP CONTRAC 1
1) Initial aqua ammonia order to be at same pricing structure of $550 per ton, $200 per
delivery with a maximum $25 per ton cap on additional orders; initiali need for
64.706 tons for commissioning in August and September 2005 No Change
1) City exercises optionto continue agreement at a sum of $575.00 per ton
plus $200.00 per delivery for freight for monthly operation costs No Change
Except as specifically modified herein, all terns and conditions of the Contract are unmodifiied and remain in full force and effect;
and apply to the extended time of performance, the additional work and additional costs as if those term;:, services and costs were
originally included in the Contract.
Basc Amount of Contract .....NOT TO EXCEED MONTHLY AMOUNT ... $ 44,000.00
Amount of this Chan a Order $ NO CHANGE
Amount of Previous Change
Orders 0.00
Modified Contract Amount $ 44, 000.00
Byrewonofthis orderthe time or Time of Performance extended from July 1, 2005 until June 30, 2006
completion will be adjusted as fo11 u uant to thisThange Order No. 1
Sept. 21, 2005
Approved: Date: �igir�xxx
Director of Li g & cr Department
ZLM
We, the undmigned Vcndor, have given easeful consideration to t an proposed and hereby agree, if this proposal is approved ghat we will provide all
equipmeM furnish all materials;`except as may otherwise be noted abovC and perform all suviecA newmaq for the work above sim ified, and will acowt as full
payment tbcmfor the pricce shdivn aheve,
Accepted: Date: August t CJ 2005 Vendor_ Hill Brothers Chemical Company.
By' u Title:
xc: VIM=
EXHIBIT
FAW
0.0.26. 2004 10:50AM
No-4354 P`. 2
e �
z h 1��
3� since Iry
1923,�o11
SAFE" l
HILL, BROTH
ERr/,.,../,
yj
SOUTHERN CALIFORNIA REGIONAL SALES OFFICE
3000 EAST BIRCH STREET • SUITE 108 • BREA. CALIFORNIA 92821-6261
(714) 579-3333 FAX (714) 579-339A ORDER DESK (800) 322.4119
City of Vtanon http://hillbrothers.com
2715 B. 5e Sawt
Attn: Carlos It Tnndino Jr.
Donald Quiroz
October 26, 2004
Subject: 19% Aqua Amamoaia
inicV,rity, QUAIW, Safety sand Service Are the axe values of Hill Rmthers Chemical Company. For nxxc Ulan
eighty years I Jill DrM.hefc has Iwovided a variety of chemical products to both the industrial and construction
markets. As a Western I Inited States based company, we operate seven sales divisions and ten liwilitic s covering
the western ntatas.
Year R.IAI Brothirs Representative:
Luis Ceavante with ) ymus of ammonia Cxpuicakr will be ready to service all of your Ammonia neMis.
With 23 sales people in the Weston U.S. each rule persen has it very manageable terfitory enahling. them to be
accesible and respunsivu to your spcwi&- rnxda. Chu lMxtl Saks office is at 3000 R Dirch. St, Suite 108 Brea,
CA 92821 and our kwul nunuufactur4 facilities an located in City of Industry and Los Angeles, CA.. Contact
tuluphonc utun6as are:
• Teleplxxx 714.579.3333
• Fax 714-579-3399
• Ceil/VM 714-3234526
• Order Desk 800-322-4119
Hill Rmthers' Ammonia pnxiuct Manager liar the western U.S. is Byron (tundmon. 1-k hay btxm in the
amnx„iia industry Aix over 30 years. Hymn is available for training and technical support.
• CCWVM 602-321-5999
Rest*rek Development, and Qttsdlty Conlish
A well staffed stand alone facility for R&T), Tech Services and QC is located in City of Industry, CA to
continually address the ever -changing issues orthe chemical industry and customer requirements.
• Tony Gurvia - llinx:tur of R&ll with 101- yoxas dcsigninb and managing ammonia prujucts for tlnocal
and !dill lirotlxay. Projuc:ts include storage, rail tnins-loading. aytar oxmvex(ca installations and many
uxay.
• Carl Thompson - Chief C'hemict with 35+years experience in industrial chemistry
• Poxlru Lozano - Lab Technician with 20+ years CxpCrience with Hill BfOdu rs
Quality Assurance:
All of 1Till Brothers Aqua Ammonia is "virgin" manufactured prMuct Using high inrrity water and
Tndustrial grade Anhydroaa Ammonia. All our Aqua Ammonia transport vehicles are solely dedicated U) single
product use.
"N•" By -Product Aqua Amwwmis Assurance -
All l3roth rs C:luanical Company pride itself on quality products since% 1923. Al last industry -wide
Chock we un: u u; of thu few Aqua Arnun(mia Mauufamirurs that does not handle ariy by prvduut Aqua Ammonia.
We feel that all aspevLs of the manufacturing process should he under our control.
CITY OF INDUSTRY • LOS ANGELES 6 SAN DIEGO • PHOENIX 0 TUCSON 0 SAN JOSE 9 NORTH SALT LAKE
Oct-26. 2004 10:50AM N o - 4 3 5 4 r 3
Safety and Envitvnmental Compliance.,
Hill Brothers Chemical Company so truly believes in Safety and environmental compliance that we "put
our money where our mouth is." We maintain a four man, full time, Safely and Compliance Division in Orange,
Califcxnia. TIus l.. ivision is fully equipped to perlimn all required ammonia lately training and is always
included tree of charge.
• Bob Roth — Director of Corp. Safety and Compliance with over 20 yeas at the Unocal Anhydrous
Ammonia production facility in Kenai, Alaska. With his certificate in Envirownental I Iealth and Safety
Lew; Be+b is l4a�net rtiut Firs fieheol4rnined and possestces a3'tr l lurnon-Resources die manages a
current staff of three safety techs to support both in-house and ctwonier related safety issues.
Hillbmthers.00m is an. excellent place to obtain MSDS sheets for over 120 products. Our Safety and Compliance
Division works closely with our Corporate Sales & Marketing Division to maintain a helpful and responsive site.
Driver Training:
Hill Brothers professional drivers are highly trained with all the noxessaty I•IAZMAX endursewnts and
credentials. Chrr drivers are port of Hill Brotters' PSM compliant Facility in LA and City of ludu5try.
Veliveiriea:
• Order Desk and After Home Contact: 1-800-322-4119
Deliveries are mode within 2448 hour from receipt of order. Hill Drothers offers 24 hours, 7 days per week
emergency deliveries. I:IltC:C will ntakt all deliverie,-% as required dry pargpph "TRANS-8" as supplied by City
of Vernon.
Terms:
Payment terms are not 30 days.
Fmi& includes (2) hours of uftloading Iimu, aLc mrplislwd in one hour normally.
ChnYt me for aftLr hours &livuty is $40.00 pot hour, portal to portal with a 4 hour minimum.
Proposal; Delivery Point — Vernon, CA
Hill Brothers Chemical Company would like to submit for your favorable ethusideration the following proposal:
19% Aqua Ammonia Price: $550.00 per contained ton
Freight: $200.00 per delivery
Minimum Aqua Ammonia delivery iR 5,0W gallnns
This price is firm through June 30, 2005. A maximum $25.00 pet• tan cap will apply to dais price firm July 1,
2005 to June 30, 2006.
Sirimmly,
HILL BROTHERS C:H1 M1CAi. COMPANY
John Padilla, Jr.
Regimial Salsa Manager
JPJ/ps
00. 26. 2004 10:50AM No-4354 P 3
Safety and Environmental Compliance:
Hill Brothers Chemical Company so truly believes in safety and environmental compliance that we "put
our money where our mouth is." We maintain a four man, full time, Safety and Compliance Division in Orange,
California. This Dvision is fully equipped to perfkrrn all requiw d ammonia safety training and is always
included lice of charge.
• Bob Roth — Director of Corp. Safety and Compliance with over NI years at the Unocal Anhydrous
Ammonia pmductioti facility in Kenai, Ala". With his certificate in Environmendtl I Iealth and Safety
— --- Lsiv e+b is i4a�ttiot siui Fire Scheol4rnined and possesses a iii iTurx t: Resources k manages a
current staff of duce safety techs to support bot).t in-house and cuatoper related safety issues.
Hillbrothers.00m is an. excellent place to obtain M`SDS sheets for over 120 products. Our Safety and Compliance
Division works closely with nor Corporate Sales & Marketing Division to maintain a helpful and responsive site.
Driver Training:
hill Brothers professional drivers are highly trained with all the necessary HAZMA'1' endorstmwrils and
credentials. Chu drivers are pert of hill Brothers' PSM cornplinnt Facility in LA and City of Industry.
Delivctriearo
• Order Desk and After 1•loura Contact: 1-800-3224119
Deliveries are made within 2448 hour, frotn receipt of order. hill Brothers offers 24 hours, 7 days per week
emergency deliveries. 1-.M(:C will nuke all delivetiea as required try paragraph "TRANS-8" as supplied by City
of Yemon.
Tetremn:
Paymimt teams arc not 30 days.
Freight include (2) hours of of fading firms, am*mphAvd in One hour normally.
Clvertirix for aftea hours delivury is $40.00 pox hour, portal to portal with a 4 hour minimum.
1Proposol: Delivery Point — Vernan, CA
iJill Brothers Chemical Company would like to submit for your favorable consideration thu following proposal:
19% Aqua Ammonia Price: $550.00 per contained ton
Freight: $200.00 per delivery
Minimum Aqua Ammonia delivery is 50)0 gallons
This price is firm through June 30, 2005. A maximum S25.0o pet' tan cap will apply to this price fmrn July 1,
2005 to Junu 30, 2006.
Sinctauly,
111LL BRU'I'HERS CHEMICAL COMPANY
John Padilla, Jr.
Regional gales Manager
JP-T/p.
Oct.26•_2004 10:51AM
c°I -Iv
•:Sc�1�n^4 ���•111��
Teresa Tories 714-998-81N_o4354 P.-4 P• 1
HILL BROTHEKgr
r (Nrs 75 Ywrs vi ('u►tu.ua•r l'unupiuu.•ri�
C o r p o r a t e S a f e t y 6 C o m p l i a n c e D i v i s i o n
1 6 7 5 N o r t h M a i n S t r e e t
O r a n g e, C A 8 2 8 6 7
T0: Dumald Quiroz
cc: Carlow R. Faadino Jr.
Fr; Robert Roth (7 14) 996-8800 — fax (714) 998-8106
Date: September 14, 2004 Pages: 3 fie: vernnn
Regarding: Trailer Specifications
Dear Mr. Quiroz:
The following information is presented as evidence that mu trailers are certified under
DOT MC. 507 staudard4. Ilill Brothers has two tr.jilert rapahle ofdelivering A(lua
Ammonia to ,your facility in Vernon California. The trailer specifications arr in the form
of attaclunolu. our trailers are tested in accordance to regulatory standards and
maintained to the highest. quality and state of readiness. We uke pride in our
equiplilent stud will work with your organization to ensure that quality and.:safety is
always at the top of* otu`list.
Sincerely,
P
i�
Robert Roth
Director of Safety and Compliance
GODO 45126 S. T. E. INC.
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SUPPORTING
DOCUMENTS
AMMONIA DELIVERY PURCHASE CONTRACT
THIS AMMONIA DELIVERY PURCHASE 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 :3 day of December, 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 HILL BROTHERS CHEMICAL COMPANY
(hereinafter referred to as "Hill Brothers")
1675 N. Main St.
Orange, CA 92867
RECITALS
WHEREAS, 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 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 firm to deliver Aqua Ammonia for the emissions control system at the Malburg Project site
(hereinafter referred to as the "Ammonia Delivery") for the Malburg Project; and
WHEREAS, Hill Brothers prepared a proposal dated October 26, 2004
(hereinafter referred to as the "Proposal"), a copy of which is attached hereto as Exhibit A and
incorporated by reference, for the Ammonia Delivery; and
WHEREAS, Hill Brothers represents that it is qualified and capable of furnishing
the labor, materials and expertise necessary to furnish the Ammonia Delivery and perform the
services that the City requires, as set forth in the Proposal and is willing to do so on the terms and
conditions set forth below; and
WHEREAS, the City desires to enter into an agreement with Hill Brothers to
provide for the labor and materials necessary for the Ammonia Delivery.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
l . Purchase and Sale of the Aqua Ammonia.
1.1 Aqua Ammonia. Hill Brothers shall sell and deliver, and the City shall
purchase the Ammonia 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. Hill Brothers shall obtain, sell and deliver the Ammonia at the
City of Vernon, F.O.B. Job Site. Hill Brothers is responsible for all costs of full freight,
including insurance, to Job Site. Risk of loss shall pass to the City upon delivery F.O.B. Job Site.
1.3 TRANS-8 Delivery Provision. Hill Brothers shall use only the following
"Preferred" truck travel routes for deliveries of the Ammonia to the Malburg Project site. If Hill
Brothers notifies the Operations Manager that conditions are such that the preferred route is not
the safest route, then the "alternate" route shall be used upon approval by the Operations
Manager:
Preferred --From Interstate 710, exiting at Bandini Boulevard, Trucks will
then travel west along Bandini Boulevard, south on Soto Avenue, and finally west on 506' Street
to the Malburg Project site.
Alternate --Delivery trucks traveling northbound on Interstate 5 shall exit at
Garfield Avenue. Trucks will then travel west along Telegraph Road, south on Garfield Avenue,
west on Bandini Boulevard, south on Soto Avenue and finally west on 50`h Street to the Malburg
Project site.
The City may re-route deliveries from the alternate route to another
alternate route only after obtaining the necessary compliance approval and written notification to
Hill Brothers of new alternate route.
2. Time of Performance. Hill Brothers shall commence and complete the Ammonia
Delivery as follows:
2.1 Time Schedule. The term of this Agreement shall commence no later than
thirty (30) days after the City's issuance of a Purchase Order (the "Commencement Date") to
2
begin performance under this Agreement and shall continue through June 30, 2005, with an
option to continue said Agreement from July 1, 2005 through June 30, 2006 on the same terms
and conditions as prescribed in this Agreement, subject to any change in the rate of compensation
to be paid Hill Brothers as provided in subsection (b). Hill Brothers shall complete delivery of
the Ammonia Delivery no later than forty-eight (48) hours from receipt of order (the "Delivery
Time"). Unless performance is excused, as set forth in Paragraph 2.2, Hill Brothers' failure to
make the Ammonia Delivery 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.
(a) If City desires, at its sole discretion, to exercise its renewal option, City
shall advise Hill Brothers in writing of its intent to extend the Agreement by not later than 30
days prior to the term expiring. The City Administrator, or his designee, is authorized to exercise
said option on behalf of City. If Hill Brothers desires to adjust the rates as set forth herein, Hill
Brothers shall give City written notice of such adjustment 60 days prior to the term expiring.
(b) If City gives notice of its intention to extend the Agreement from July 1,
2005 through June 30, 2006 as provided for above, Hill Brothers guarantees a maximum $25.00
per ton cap.
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,
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
3
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 Hill Brothers 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 Hill Brothers, Hill Brothers shall
be entitled to an increase in the Contract Sum, but only in any amount equal to the increase in
Hill Brothers ' direct cost resulting from such delay.
3. Contract Sum. The purchase price for the Ammonia Delivery is the sum of Five
Hundred Fifty Dollars and No Cents ($550.00) per ton plus Two Hundred Dollars and No Cents
($200.00) for freight per delivery, for a not to exceed cost of Forty -Four Thousand Dollars and
No Cents ($44,000.00) per month plus freight, under full operation mode (the. "Contract Sum").
Such rates shall be guaranteed until June 30, 2005. Freight includes two (2) hours of offloading
time. For after hours delivery, City shall pay overtime of Forty Dollars and No Cents ($40.00)
per hour, portal to portal, with a four (4) hour minimum. Normal delivery hours shall be Monday
through Friday from 7:00 a.m. to 3:30 p.m.
If City exercises its option to continue the Agreement from July 1, 2005 through
June 30, 2006, the purchase price for the Ammonia Delivery shall not exceed the sum of Five
Hundred Seventy -Five Dollars and No Cents ($575.00) per ton plus Two Hundred Dollars and
No Cents ($200.00) for freight per delivery.
4. Payment Terms.
4.1 Payment. One hundred percent (100%) of the Contract Sum shall be paid
within thirty (30) days after (a) the City's receipt and approval of the Ammonia Delivery and (b)
the City's receipt of an invoice in a form reasonably acceptable to the City from Hill Brothers.
Invoices shall contain an itemization of services rendered and other directly related job expenses
and subcontract charges incurred by Hill Brothers and for which compensation is due. Hill
Brothers shall be responsible for paying any subcontractors used in the performance of this
Agreement. Subcontractors shall not bill the City directly. Payment of the invoice shall be made
after acceptance and approval by the City within thirty (30) days of receipt. The City's approval
of the invoice shall not be unreasonably withheld.
4
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 Hill Brothers if Hill Brothers is in
default of any of its obligations under this Contract; any portion of the Ammonia Delivery 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 Ammonia Delivery 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
Ammonia Delivery by the City shall constitute an acceptance of any Ammonia Delivery not in
accordance with the terms of this Contract.
5. Hill Brothers' Representations, Warranties, and Covenants.
5.1 Capability. Hill Brothers represents to the City that it is qualified, willing,
and able to obtain, sell, and deliver the Ammonia.
5.2 Assignment of Warranties; DeliveKy of Documentation. Hill Brothers
shall assign to the City at the time of the Ammonia Delivery all manufacturers' warranties and
Hill Brothers shall assemble and deliver to the City complete copies of all warranties, guaranties,
and operating and maintenance data and all other documentation from all manufacturers pursuant
to this Contract.
5.3 Compliance with Law. Hill Brothers shall strictly observe and comply
with all applicable federal, state, and local laws, ordinances, and regulations governing the sale
and delivery of the Ammonia Delivery, including, but not limited to any permit or license
requirements of the United States Department of Commerce.
5.4 Authorizations. Hill Brothers is authorized to do business in California
and properly licensed and registered by all governmental authorities having jurisdiction over it.
5.5 Title to City. Hill Brothers warrants that title to Ammonia Delivery will
pass to the City either by incorporation in the construction or upon the receipt of payment by Hill
Brothers, whichever occurs first, free and clear of all liens, claims, security interests or
encumbrances, and that no seller of any Ammonia Delivery or any portion thereof will retain an
interest therein or an encumbrance thereon.
5.6 PMents to Third Parties. Hill Brothers shall promptly pay all bills for
labor and materials furnished by others in connection with this Contract.
5.7 Warran
5.7.1 Hill Brothers' Warranties. Hill Brothers warrants that all
Ammonia Delivery 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 Ammonia Delivery 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 Hill Brothers or the City reveals that any portion
of the Ammonia Delivery does not meet the City's specifications or the City identifies any
defects in or damage to the Ammonia Delivery, Hill Brothers shall promptly repair or replace any
defective Ammonia Delivery; 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 Ammonia from that vendor, and obtaining another vendor to provide that
Ammonia. Hill Brothers 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
Ammonia, including any and all damages caused to the City's existing Ammonia storage and/or
Delivery system and the Vernon Substation or the Malburg Project by the use of defective
Ammonia provided by Hill Brothers.
5.7.2 Manufacturers' Warranties. Hill Brothers shall obtain for the
benefit of the City, and assign to the City, commercially reasonable manufacturers' warranties,
which shall commence one (1) year from the date of the Ammonia Delivery being purchased by
the City under this Contract or the City's acceptance of the Ammonia Delivery being purchased
hereunder, whichever occurs first. Hill Brothers shall assist the City in the enforcement of all
such warranties.
r
5.7.3 Warran1y Period. Hill Brothers, 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)
Ammonia Delivery rejected by the City as defective or as failing to conform to this Contract if
reported to Hill Brothers within the Warranty Period. The Warranty Period shall be the period of
(a) one (1) year from the date of Ammonia Delivery being purchased hereunder or from the date
of the City's acceptance of the Ammonia Delivery 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 replaced Ammonia
on the date the replacement was made. Hill Brothers' obligations hereunder shall include the
obligation to repair any damage to other property caused by the defective Ammonia Delivery or
the repair thereof. Hill Brothers 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 Ammonia
Delivery found to be defective or not in accordance with this Contract, or (b) the correction of
any such Ammonia Delivery.
The foregoing representations, warranties, covenants, and agreements shall survive
any termination of this Contract and final completion of the delivery of the Ammonia Delivery
and are in addition to, and not in lieu of, any and all other liability imposed upon Hill Brothers by
law with respect to Hill Brothers' duties, obligations and performance hereunder.
6. Indemnification.
6.1 Hill Brothers' Indemnity. To the fullest extent permitted by law, Hill
Brothers 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 Hill Brothers or its employees or agents in the
delivery of Ammonia Delivery under this Contract, except to the extent arising from or caused by
7
the sole negligence or willful misconduct of the City, its officers, agents or employees. The
terms of this indemnity shall survive the termination of this Contract. The obligations in this
Paragraph are in addition to Hill Brothers' duty to provide insurance and shall not be limited by
any limitation on the amount or type of insurance coverage carried by Hill Brothers.
6.2 Indemnity Process. The City shall notify Hill Brothers in writing of any
suits, claims or demands covered by this indemnity. Promptly after receipt of such notice, Hill
Brothers shall assume the defense of such claim with counsel reasonably satisfactory to City. If
Hill Brothers 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 Hill Brothers 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 Hill Brothers . 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.
Hill Brothers 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 Ammonia Delivery 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 Ammonia
Delivery 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 additional compensation or extension of time shall be valid or recognized unless
contained in a Change Order signed by the Chief Executive Officer of the Light & Power
Department.
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 Hill
Brothers.
8.2 Termination b�City Without Cause. In the event of termination by the
City without cause, Hill Brothers shall be compensated for all Ammonia Delivery 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 Hill Brothers directly attributable to termination which
could not reasonably have been avoided and for which Hill Brothers 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 Hill Brothers without Cause. If
Hill Brothers breaches this Contract, the City shall notify Hill Brothers in writing of said breach
and if Hill Brothers 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 Hill Brothers for
cause. Hill Brothers shall be responsible for all direct and indirect costs due to the City's re -
procurement of the equivalent of the Ammonia Delivery cancelled pursuant to this Paragraph 8.3.
If this Contract is terminated by the City with cause, or terminated by Hill Brothers without
cause, the City shall pay Hill Brothers for all Ammonia Delivery 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 Hill Brothers '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
6
Contract, except for its obligations under Paragraph 12.5 below, Hill Brothers 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, Hill Brothers 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 Hill
Brothers or a party engaged by Hill Brothers; provided, however, that solely for its internal
auditing purposes, Hill Brothers may, at its sole expense, make and retain copies of Work
Product materials, subject to the confidentiality provisions of Paragraph 10. Hill Brothers 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
Hill Brothers' 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 Hill Brothers, its officers, employees, agents in the
course of performing the obtaining, delivering, and selling to the City the Ammonia Delivery
sold under this Contract (collectively, the "Work Product"), but excluding working notes and
internal 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 Hill Brothers or to any other party.
Work Product materials shall be delivered to City by Hill Brothers as they are generated.
10. Confidential Information.
10.1 Access to Confidential Information. The City may provide Hill Brothers
or allow Hill Brothers 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
10
the City. All such non-public information shall be known as "Confidential Information" and may
not be by Hill Brothers 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, Hill Brothers 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. Hill Brothers 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 Hill Brothers has delivered all Ammonia Delivery to be delivered pursuant to this Contract.
Hill Brothers hereby agrees that such Confidential Information and any documents provided may
be used by Hill Brothers only as authorized by the City.
10.3 Court Ordered Disclosure. Hill Brothers 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. Hill
Brothers may only disclose Confidential Information required to be disclosed pursuant to court
order or subpoena after legal counsel has exhausted any lawful and timely appeal or challenge.
10.4 Exceptions to Confidentiality. The foregoing obligations shall not apply to
any Confidential Information lawfully in Hill Brothers '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 Hill Brothers.
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.
Hill Brothers 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
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
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
12
HILL BROTHERS: HILL BROTHERS CHEMICAL COMPANY
1675 N. Main Street
Orange, CA 92867
Attn: Chief Executive Officer
11.5 Status of Hill Brothers. At all times during the term of this Contract, Hill
Brothers shall be an independent contractor. Except as the City may specify in writing, Hill
Brothers shall have no authority, express or implied, to act on behalf of the City in any capacity
whatsoever as an agent. Hill Brothers shall have no authority, expressed or implied, pursuant to
this Contract to bind the City to any obligation whatsoever.
11.6 Insurance. Hill Brothers agrees to provide insurance in the amounts and
forms specified in Exhibit B, which is attached hereto and incorporated by reference. Hill
Brothers 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.
Hill Brothers 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.
Hill Brothers shall not permit a subcontractor or vendor to perform work on City premises unless
and until a certificate of insurance is obtained showing that such subcontractor or vendor has
worker's compensation coverage. Hill Brothers employs subcontractors as part of the services
rendered, Hill Brothers' protective coverage is required. Hill Brothers may include all
subcontractors as insureds under its own policy or shall furnish separate insurance for each
subcontractor, meeting the requirements set forth herein.
11.7 Operations Manager. The City's Operation Manager is Manuel G. Garcia.
The City reserves the right, in the City's sole discretion, to replace Mr. Garcia as the City's
Operations Manager upon notice to Hill Brothers.
11.8 Assignment and Subcontracting Prohibited. No party to this Agreement
may assign or subcontract any right or obligation pursuant to this Agreement except with the
express written consent of the other party. Any other attempted or purported assignment of any
right or obligation pursuant to this Agreement shall be void and of no effect.
13
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.
Contract.
11.10 Time of the Essence. Time is of the essence in the performance of this
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. MALBt4 , Mayor gr
ATTEST: "
Bruce V. Malkenhorst, City Clerk
APPROVED AS TO RM
Eric T. Fresch, City Attorney
HILL BROTVCEMIC L COMPANY
i CBy:
Matt Thorne
Executive Vice President
By:
Tom James
Chief Financial Officer
14
Oct-M. 2004 10:50AM No-4354 P. 2
0101ts t*fyU7
e
hi . �" HILL BROTHER
a� Since P .
1923"'-$�
Pb SAM0 SOUTHERN CALIFORNIA REGIONAL SALES OFFICE
3000 EAST BIRCH STREET - SUITE 108 • BREA. CALIFORNIA 92821.6261
(714) 579-3333 FAX (714) 579.3399 • ORDER DESK (800) 322A119
City of Vtanou http://hillbrothers.com
2715 E. 5e Sawt
Attn: Carlos It Fandino Jr.
Donald Quirm.
October 26, 2004
Subject. 19% Aqua Ammonia
JWog lfy, Quality, Sakly ar W Service are the core values of Hill Brothers Chemical Company. For mere than
eighty years I Iill Brothers ltas provided a variety of chemical prnducts to both the industrL41 and wnstruction
markets. As a Western I Inited States hased company, we operate seven sales divisions and tun facilities covering
the western Mates.
Vow Hill Brothers Representative:
Luis Ctavanuts with 9 yours of ammunia cxptaitatctr will bt: rwdy to service all of your ammonia necxis.
With 23 sales pcoplc in d►u W esltau U.S. each lulus person has a very matIa eaMe ten itocy enahl ing them to be
accessible and ruspunsivu to your spouifiu nods. Our lard sales office is at 3000 T.1.iirch. 8t, Suite 108 Brea,
CA 92821 and our ltwul manufawuring facilities are located in City of laclot y and Los Angeles, CA. Contact
tolephunu nu uLms arc:
• Telephone 714-579-3333
• Fax 714-579-3399
• CelVVM 714-323-4520
• Order Desk 800-322-4119
Hill Brothers' Ammtmis Product Manal,ax fix aw wcsu m U.S. is Bynm Cturulmsun. Mu has bust in the
amnumia industry lix ovLT 30 years. Hymn is available for training and technical support.
• CcWVM 602-321-5999
Rtw*reh, Development, surd Qtwllty Control.,
A well staffed stand alone facility for R&D, Tech Services and QC is located in City of industry, CA to
continually address the ever -changing issues of the chemical industry and customer requirements.
• Tony Uumia - Dine lur of RAll with 1(H- ,ytxus designing and managing anununia prujtx is lie 1Jntx a1
and I- ill 13rodwru. Fmjests include stunegu, rail turns -loading, aycua mmvtatta inslallalious oral many
MOO.
• Carl Thompson - Chief Chemist with 35+years experience in intiustrial chemistry
• 1'exlro Lucano - Lob'1'tx:hnic:ian with 20+ yexrrs cxperimcc with Hill lirothtas
Quality Assurance:
All of Hill Brothers A(pta Ammonia is "virgin" nlanufactmed prMtact lasing high parity water and
industrial grade Anhydrous Ammonia. All our Aqua Ammonia transport vehicles are solely dedicated to single
product use.
"N•" By -Product Aqua Ammonia Assurance:
Hill Hrodm L:tuanical Company pridc,-s itself tan duality pro duds since 1923. At last industry -wide;
chtwk wu arc onu of thu few Aqua Ammonia Manufaultrrurs that dews not handle arr_y by prudutx Aqua Ammonia.
We li:el that aU nspe-uts of the: manufacturing process shtmld he under our control.
CITY OF INDUSTRY 9 LOS ANGELES 0 SAN DIEGO is PHOENIX • TUCSON • SAN JOSE 9 NORTH SALT LAKE
Oct-26. 2004 10:50AM N o - 4 3 5 4 P. 3 _
Safety and Envinmumntal Cumpliams.,
Hill Brothers Chemical Company so truly believes in safety and environmental compliance that we "put
our money where our mouth is." We maintain a Pour man, full time, Safety and Compliance Division in Orange,
Cali(rnia. This Divisiou is fully equipped to perfitrm all Tequinxl ammonia safely training and is always
included tree of charge.
• Bob Roth — Director of Corp, Safety and Compliance with over 20 years at the Unocal Anhydrous
Ammonia production facility in Kenai, Alaska, With his certificate in Environmental I lealth and Safety
__ -aw; HE+b-is 1 }a�tnet aNd 1yr+e :School trained endOsse�ses
current staff of three safety techs to support both in-house and cusstotna related safety issues.
Hillbrothers.00m is an. excellent place to obtain MSDS sheets for over 120 products. Our Safety and Comph4im
Division works closely with our Corporate Sara & Marketing Division to maintain a helpful and responsive site.
Driver Training:
hill Brothers professional drivers no highly trained with all the neearstay HAZMA'1' endursem mIs and
ero&nUals. Our,drivers are pnrt of hill Broilm' PSM compliant Facility in LA and City of Industry.
Deliveries:
Order Desk and After llottra Contact: 1-800-322-4119
Deliveries are made within 2448 hour from receipt of order. Hill Brothers offers 24 hours, 7 days per week
emergency deliveries. I:l[1C:C will make all deliveries as required by paragraph "TRANS-8" as supplied by City
of Vernon.
Term x:
Payment temns are net 30 days.
Freight includes (2) hours of uIDoadirtg firm, acwtoplishud in one hour normally.
Overlirrta for nftca hours oklivWy is $40.00 per hour, portal lu portal with a 4 hour minimum.
1Propaeale Delivery Point — Vemm, CA
Hill Brothers Chemical Cmpany+ would like to submit for your favorable consideration the following pruprsel:
19% Aqua Ammonia Pries $550.00 per contained ton
Freight: $200.00 per delivery
Minimum Aqua Ammonia delivery is 5,000 gallons
This price is firm through June 30, 2005. A, maximun) $25.00 per ton cap will apply to this price from July 1,
2005 to June 30, 2006.
Sinccavly,
HILL BRUTVERS CfW.MICAT. COMPANY
John Padilla, Jr.
Regiotwl Sales Manager
JPJIp.
Oct _26 •_700 11_0_ 51AM Teresa Torres 714-998-81N0_ 4354 P • 4 P. 1
h
MILL BROTHER,
Uw-r 77 Yvovoi v>i Owtua wr Cunulaitmant
Corporate Safety & Compliance D i v i s i o n
1 675 No r t h Main Street
Orange, CA 92867
To'
bonald Quiroz
cc:
Culcw R. Fandino Jr.
Fr.
Robert Roth
Date:
September 14, `t004
Regarding: 1'railer Sliecifications
Dear Mr. Quiroz:
(7 14) 998-AAoo — fax (711) 9ya=d t rJ6
Pages: 3 file: Y«nnr%
The following information is presented as evidence that our trailers are certified under
i)OT MC 307 standard?. Ili]] Brothers has two trailers capable of'd.elivering Aqua
Ammonia to your facility in Vernon California. The trailer specifications arr in the form
of attaclun nts. Our trailers are tested in accordance to regulatory standards and
maintained to the highest quality and state of readiness. We take pride in our
equipment and will work with your organization to ensure that quality and safety is
always at the top of our list.
Sincerely,
Robert Roth
Directur of Safety and Compliance
GODM?S126 S. T. E, INC.
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EXHIBIT B
INSURANCE SCHEDULE
Hill Brothers 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
BodilyIInjury 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 employ
11. Liabilitv
General Liability
$1,000,000
$2,000,000
$1,000,000
Premises Operations
$100,000
$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 Agreement.
4. Such other endorsement as may be required by City.
b. In addition to the above, the Consultant shall provide such further proof of insurance
documentation as the City deems necessary.
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