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Resolution No. 9118
x 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 9118 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A SERVICES AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND NALCO COMPANY FOR THE MALBURG GENERATING STATION WHEREAS, the City of Vernon ("City") constructed the Malburg Generating Station within the City limits for the purpose of producing additional generating capacity; and WHEREAS, on January 19, 2005, the City Council of the City of Vernon adopted Resolution No. 8647 approving an agreement with Nalco Company ("Nalco) to provide water treatment services and equipment through June 30, 2006 for the Malburg Generating Station; and WHEREAS, the Light & Power Department continues to need the services of a contractor to provide the necessary chemicals and equipment to operate the Malburg Generation Station properly and in accordance with all applicable laws, regulations or policies of all governmental authorities having jurisdiction; and WHEREAS, the Light & Power Department has recommended the continued use of Nalco based upon their past performance and expertise in furnishing the water treatment services and equipment for the Malburg Generating Station; and WHEREAS, Nalco has submitted a proposed proposal presented on July 27, 2006, to provide the water treatment services and equipment; land WHEREAS, the City Council of the City of Vernon has determined that, pursuant to the provisions of subsection (a) of Section 2.27 of the Vernon City Code, it is in the public interest and �a A f 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19' 20 21 22 23 24 25 26 27 28 necessity to enter into an agreement with Nalco. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Services Agreement with Nalco, in substantially the same form as the copy which is attached hereto as Exhibit A and incorporated by reference. SECTION 3: The City Council of the City of Vernon hereby authorizes the Mayor to execute said Agreement for, and on behalf of, the City of Vernon and the Acting City Clerk is hereby authorized to attest thereto. SECTION 4: The City Council of the City of Vernon hereby directs the Acting City Clerk, or his designee, to send one fully executed Agreement to: Nalco Company Attn. Contract Manager 1601 W. Diehl Road Naperville, IL 60563-1198 SECTION 5: The Acting City Clerk of the City of Vernon shall certify to the passage of this resolution, and thereupon and thereafter the same shall be in full force and effect. APPROVED AND ADOPTED this 5th day of September, 2006. EONIS C.MA BURG,'Mayor ATTES t BRUCE V. MALKENHORST, JR. Acting City Clerk - 2 - J � � a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, BRUCE V. MALKENHORST, JR., Acting City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 9118, was duly adopted by the City'Council of the City of Vernon at an adjourned regular meeting of the City Council duly held on Tuesday, September 5, 2006, and thereafter was duly signed by the Mayor of the City of Vernon. (SEAL) BRUCE V. MALKENHORST, JR. Acting City Clerk - 3 - SERVICES AGREEMENT THIS AGREEMENT (this "Agreement") 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 m day of August, 2006, in the City of Vernon, County of Los Angeles, State of California BY AND BETWEEN THE CITY OF VERNON, a Municipal Corporation, hereinafter referred to as "City," 4305 Santa Fe Avenue Vernon, CA 90058 AND NALCO COMPANY, a Delaware Corporation, hereinafter referred to as "Contractor" 1601 W. Diehl Road Naperville, IL 60563-1198 RECITALS WHEREAS, the City constructed the Malburg Generating Station Combined Cycle Power Plant located at 4963 Soto Street in the City of Vernon (the "Malburg Station") for purposes of providing additional generating capacity; and WIIEREAS, it is in the best interest of the City and the Malburg Generating Station that a firm be retained to provide the necessary equipment and materials to perform water treatment system services (the "Services"); and WHEREAS, Contractor has been providing said Services to the City since May 2005, and the City wishes to continue utilizing said Services for the period beginning August 1, 2006 through June 30, 2007; and WHEREAS, Contractor represents that it is qualified, and capable of providing said Services as necessary and is willing to do so in accordance with the proposal presented on July 27, 2006, and attached hereto as "Exhibit A" and incorporated herein by reference; and WHEREAS, the City desires to enter into an agreement with Contractor to provide the necessary Services as identified in the attached "Exhibit A." Page 1 of 27 NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. Services. 1.1 Certain Definitions. The following terms shall have the following meanings for purposes of this Agreement: 1.1.1 Agreement Documents. The term "Agreement Documents" as used herein shall mean and refer to and include this Agreement, the Proposal, and all other exhibits and attachments hereto, as well as amendments and modifications hereto that are approved in writing by the parties, and authorized Change Orders (as defined below) that are signed by the parties. All of these documents form the Agreement, and all are as fully a part of the Agreement as if attached to this Agreement or repeated herein. In the event of a conflict between the Proposal and this Agreement, the terms of this Agreement shall prevail. 1.1.2 Scope. The Scope of work shall include, but is not limited to, the supply of water treatment chemicals and services to the Malburg Station, including the supply of any equipment necessary to perform this Scope in accordance with the attached "Exhibit A". 1.1.3 Site. The Site shall be the Malburg Generating Station at 4963 Soto Street in the City of Vernon, California. 1.1.4 Services. Contractor shall deliver or cause to be delivered all the supplies and equipment, pursuant to "Exhibit A". 1.2 Contractor's Obligations. Contractor has represented to the City that it is qualified, willing, and able to perform the Services. Notwithstanding anything to the contrary contained in this Agreement, the City and Contractor agree and acknowledge that the City is entering into this Agreement in reliance on Contractor's abilities with respect to performing the Page 2 of 27 Services. Contractor accepts the relationship of trust and confidence established between it and the City by this Agreement. In that connection, Contractor represents, covenants and agrees as follows: 1.2.1 Compliance with Law, Defects. All Services performed, and Equipment (if any) provided by Contractor will conform to all applicable governmental regulations, statutes, and ordinances, and will be accurate and free from defects. If any of the Services or equipment are not acceptable to the City, Contractor shall promptly re -perform such Services or repair or replace such supplies and/or equipment without cost or expense to the City. 1.2.2 Skill and Experience. The Services shall be performed using the degree of skill and judgment and shall be of the standard and quality which prevail among recognized professionals who provide similar services for similar projects throughout the United States. 1.2.3 No Release. Contractor's duties shall not be diminished by reason of any approval by the City, nor shall Contractor be released from any liability by reason of such approval by the City, it being understood that the City at all times is relying upon Contractor's skills and knowledge. 1.2.4 Authorizations. Contractor advised that it is authorized to do business in California and properly licensed and registered by all governmental authorities having jurisdiction over it. All persons performing Services shall, at all times during which Services are being performed, have all necessary technical expertise, permits, professional or business licenses, certificates, training, and other qualifications required to perform such Services in a professional manner and in accordance with all applicable laws. Each subcontractor shall be licensed as a subcontractor under California law. Page 3 of 27 1.2.5 Due Diligence. Contractor is familiar with the local and special conditions under which the Services are to be performed, (b) has thorough knowledge of the Agreement Documents including "Exhibit A," (c) agrees that the Agreement Sum is adequate and reasonable compensation for all the Services to be performed 1.2.6 Capability. Contractor and all subcontractors are financially solvent and possessed of sufficient working capital to complete the Services and perform all obligations hereunder. Contractor is able to furnish the tools, equipment, labor, and supplies required to complete the Services and perform its obligations hereunder. The foregoing representations, covenants, and agreements shall survive any termination of this Agreement and final completion of the Services and are in addition to, and not in lieu of any and all other liability imposed upon Contractor by law with respect to Contractor's duties, obligations and performance hereunder. 1.3 Force Ma�eure. Neither party shall be considered to be in default in any of its obligations under this Agreement 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, lightning, 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 Agreement 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. Page 4 of 27 2. Areement Sum. 2.1 Agreement Sum. As full and complete compensation for all Services (including Equipment, if any) provided by Contractor and its agents and subcontractors, if any, the City shall pay to Contractor, subject to additions and deductions by Change Order as provided in the this Agreement, an amount not to exceed Two Hundred Seventy Five Thousand Dollars and No Cents ($275,000.00) (the "Agreement Sum'), which for the sake of clarity, is not intended to include any taxes. Except for authorized Change Orders signed by the City, the City is under no obligation to compensate Contractor for Equipment, Services, or fees incurred under this Agreement in excess of the Agreement Sum, and no reference to time and materials charges in the Proposal shall mean that there is any obligation by the City to pay any amount in excess of the Agreement Sum for any Services described in, or reasonably inferable from, the Agreement Documents. 2.2 Costs in Excess of Agreement Sum. If the actual cost of the Services exceeds the Agreement Sum, as adjusted for changes in the Services provided which have been approved in writing by City, Contractor shall pay such excess from its own funds, and the City shall have no liability for the payment of all or any part of the excess. 3. Payment Terms. 3.1 Payment terms are net forty-five (45) days from the date of the invoice for all goods and services which is set forth below in this section. 3.2 A plication for PaMent. On or before the W day of each month following the month in which Services were provided Contractor shall submit to the City, an itemized invoice in a format acceptable to the City, supported by appropriate documentation Page 5 of 27 substantiating Contractor's right to payment as the City may require. Such invoice shall cover all Services performed during the previous calendar month. 3.2.1 PPUment by City. Not later than forty-five (45) days following City's receipt of the invoice, the City shall complete its review of said invoices and pay to Contractor the amount determined to be accurate and due for the Services provided in accordance with the invoice 3.2.2 Payment Holds. City may decline to certify payment and may withhold approval of said invoice, in whole or in part, to the extent necessary to protect the City, if in its opinion the Services were not provided or were deemed defective, deficient, or undeliverable in accordance with the Agreement Documents. Project Manager may also decline to certify payment because of (a) third party claims filed or reasonable evidence indicating probable filing of such claims; (b) failure of Contractor to make payments properly to Subcontractors or for labor, materials or equipment; (c) damage to City or another Contractor; or (d) Contractor's default hereunder or other failure to carry out the Services in accordance with the Agreement Documents. 3.3 Terms re Payments. 3.3.1 Payments to Subcontractors. Contractor shall be solely responsible for paying all sums due to subcontractors used in the performance of the Services. Except in the event that the City has failed to make payments to Contractor under the terms set forth in this Agreement, Contractor shall indemnify, defend, protect, and hold harmless the City and its elected Page 6 of 27 officials, officers, and employees from and against any claims made by any of its subcontractors, employees, or agents of Contractor alleging that such parties have not been paid for any equipment provided or Services performed. Such indemnity shall include all costs and expenses of defense, including, without limitation, reasonable attorneys' fees and costs, and court costs. Invoices for payment may not include requests for payment of amounts Contractor does not intend to pay to a subcontractor or material supplier because of a dispute or other reason. 3.3.2 Payment is Not Acceptance. No Payment, nor any progress payment, nor any use of the Project by City, shall constitute an acceptance of any Services not in accordance with the Agreement Documents. 4. Accounting Records. Contractor shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Agreement, and shall maintain such books and records for a period of three (3) years after final payment, or for such longer period as may be required by law. 5. The CAY's Rights and Obligations.� 5.1 Securi . The City shall be responsible for security at the Site during the term of this Agreement at no cost to Contractor. 5.2 City's Right to Stop the Work. If Contractor is otherwise in default under the Agreement Documents, the City, by written notice to Contractor, may order Contractor to cease providing Services pursuant to this Agreement, until Contractor has corrected or cured such default. The City's right to stop the Services shall not impose any duty on City to exercise such right for the benefit of Contractor or any other person or entity. 5.3 City's Right to Carry Out the Work. If Contractor defaults or neglects to carry out the Services in accordance with the Agreement Documents and fails within seven (7) Page 7 of 27 days after receipt of written notice from City to commence and continue correction of such default or neglect with diligence and promptness, City may, without prejudice to any other remedy it may have, make good such deficiencies and deduct from the payments then or thereafter due Contractor the cost of correcting such deficiencies. 6. Contractor's Rights and Obligations. 6.1 Review of Agreement Documents, 6.1.1 Consistency. Contractor shall compare the Agreement Documents and shall at once report to the City any error, inconsistency or omission Contractor may discover. Provided that Contractor timely reports any such error, inconsistency or omission, Contractor shall not be liable to the City for any damage resulting from any such errors, inconsistencies or omissions in the Agreement Documents, except for such damage arising from Contractor's negligence or willful misconduct. If Contractor performs any activity involving a recognized error, inconsistency, or omission in the Agreement Documents without such notice to the City, Contractor shall assume appropriate responsibility for such performance and shall bear an appropriate amount of the attributable costs for correction. represents to City that: 6.1.2 Representations. By executing the Agreement, Contractor (a) The Agreement Documents are sufficiently complete and detailed for Contractor to: (1) provide the Services required to produce the results intended by the Agreement Documents, and (2) comply with all of the requirements of the Agreement Documents. Page 8 of 27 (b) The Services required by the Agreement Documents, including all details, means, methods, procedures, sequences, and techniques necessary to perform the Services is consistent with: (1) good and sound practices within the Contractor's industry; (2) requirements of all laws, regulations or policies of all governmental authorities having jurisdiction; and (3) requirements of any permit or authorization required for the Services. 6.1.3 Responsibilitx for Conduct. Contractor shall be responsible to City for the acts and omissions of itself; its agents, its employees, and subcontractors and their respective agents and employees, and other persons performing any services under an Agreement with Contractor. 6.1.4 No Release. Contractor shall not be relieved from its obligations to perform the Services in accordance with the Agreement Documents either by the activities or duties of administration of the Agreement, or by inspections, tests, or approvals required or performed by persons other than Contractor. 6.1.5 Coordination Whenever the work of Contractor or a subcontractor is dependent upon the work of other subcontractors, then Contractor shall require the subcontractor to coordinate his work with the others. 6.1.6 Delivery and Storage. All materials and equipment, if any, shall be delivered, handled, stored, installed, and protected in accordance with the best current practices in the industry, in accordance with manufacturer's specifications and recommendations. The term "delivery" in reference to any item specified or indicated, means the unloading and delivery of such Page 9 of 27 items to the Site. Risk of loss or damage shall pass to the City upon completion of delivery and receipt by the City. 6.2 Labor and Materials. 6.2.1 Contractor's Payment for Services. Unless otherwise provided in the Agreement Documents, Contractor shall provide and pay for all labor, materials, equipment, and transportation, and other services necessary for the proper execution and completion of the Services whether temporary or permanent and whether or not incorporated or to be incorporated in the Services. 6.3 Warranties And Limitation On Liability: 6.3.1 Contractor warrants that each chemical product supplied hereunder shall conform to Contractor's standard product specifications in effect at the time of shipment and the specifications set forth in this Agreement. Contractor's liability under this warranty is limited to return of nonconforming product to Contractor for, at Contractor's option, a refund of or invoice credit equal to the product price, including freight costs if paid by City, or replacement with conforming product at no charge to City. No chemical product warranty claims may be made more than 90 days after delivery of product to City. City shall obtain Contractor's prior approval for any product returns and permit inspection of any nonconforming product. 6.3.2 Contractor warrants that equipment manufactured by Contractor and supplied hereunder, if any, shall be free from material defects in workmanship and materials for a period equal to the lesser of 15 months from the date of shipment or 12 months from the date of installation. Contractor's liability under this warranty is limited to return of any nonconforming equipment to Contractor, within the warranty period and with all freight costs prepaid, for, at Contractor's option, repair or replacement of items proven to be defective. Equipment, which is Page 10 of 27 not manufactured by Contractor, is subject to the original manufacturer's warranty, which Contractor will pass through. 6.3.3 Contractor warrants that work provided as part of the Services will be performed in a good and workmanlike manner. Contractor will perform such Services in accordance with sound generally accepted practices in effect at the time of performance. 6.3.4 Contractor warrants that the products do not infringe on any patent of the United States. City shall give Contractor prompt written notice of any patent infringement suit or claim. Contractor shall control the defense or settlement of same, and City shall cooperate in such defense. Contractor's liability under this warranty is limited to such defense, and, if sale or use of the product is enjoined, refund of the price paid by City for such product (less a reasonable charge for use, damage and obsolescence). Contractor makes no warranty against patent infringement arising out of City's particular use of the product, alone or in combination with other materials; any product resulting from such use; any product manufactured for City according to City's specifications; or any equipment or chemical (including components and ingredients) manufactured by other than Contractor. 6.3.5 Because many factors affect product application and performance, Contractor will be relying on information provided by City concerning its facility, operations and systems to in order to continue to provide a Water Treatment Program suitable for the City's needs. City shall be responsible for the accuracy of the information provided to Contractor, and Contractor assumes no liability or obligation for any technical advice, Services, or products provided by Contractor based on incorrect information from City. City is responsible for designating appropriate places in its facilities and processes for feeding and storing chemical Page 11 of 27 products, installing equipment products, if any, and conducting related sampling and testing activities. 6.3.6 Contractor shall not be liable for any incidenta4 consequential, indirect or special damages, including, but not limited to, loss of profits and lost production. 6.3.7 THE FOREGOING WARRANTIES ARE EXCLUSIVE AND CONTRACTOR MAKES NO OTHER WRITTEN, ORAL, EXPRESS OR IMPLIED WARRANTIES CONTRACTOR SPECIFICALLYDISCLAIMS THE WARRANTIES OF MERCHANTABILITYAND FITNESS FOR A PARTICULAR PURPOSE; HOWEVER, THIS DISCLAIMER IS INNO WAYINTENDED TO LIMIT THE WARRANTIES GIVEN UNDER SECTIONS (31, 63.2, 6.3.3 AND 6.3.4. CITY'S REMEDIES FOR BREACH OF ANY WARRANTY SHALL BE LIMITED TO THOSE REMEDIES DESCRIBED ABOVF- 6.4 Taxes. City shall pay all sales, consumer, use, and other similar taxes for the Services or portions thereof provided by Contractor 6.5 Permits, Fees and Notices. 6.5.1 Permits. Contractor shall secure all permits, authorizations, consents, and licenses necessary for the proper execution and completion of the Services, including, without limitation, any such permits or authorizations required by the Environmental Protection Agency (EPA) or the Air Quality Management District (AQMD); provided, however, that the City shall be liable for the actual costs of any permits or fees imposed by any such governmental or quasi -governmental agency. 6.5.2 Notices. Contractor shall give all notices and comply with all laws, ordinances, rules, regulations and lawful orders of any public authority bearing on the performance of the Services to be provided. if Contractor provides any Services knowing it to be contrary to Page 12 of 27 such laws, ordinances, rules and regulations, and without notice to the Director of Light & Power and City, Contractor shall assume full responsibility therefore and bear all costs attributable thereto. 6.6 Indemnification. 6.6.1 Contractor's Indemnity. To the fullest extent permitted by law, Contractor 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 Contractor or its subcontractors, employees or agents in the performance of Services, and/or installation of equipment, if any, under this Agreement, except to the extent arising from or caused by the sole negligence or willful misconduct of the City, its officers, agents or employees. The terms of this indemnity shall survive the termination of this Agreement. The obligations in this Paragraph are in addition to Contractor's duty to provide insurance and shall not be limited by any limitation on the amount or type of insurance coverage carried by Contractor. 6.6.2 Indemnity Process. The City shall notify Contractor in writing of any suits, claims or demands covered by this indemnity. Promptly after receipt of such notice, Contractor shall assume the defense of such claim with counsel reasonably satisfactory to City. If Contractor 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 Contractor would materially and Page 13 of 27 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 Contractor. 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. Contractor 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. Additional Services/Change Orders. 7.1 Change Orders. The City reserves the right to request changes in the Services with such changes being referred to as "Additional Services." Additional Services may be authorized only by a Change Order signed by both the Director of Light & Power on behalf of the City, and Contractor. Such request for additional services by the City, shall require Contractor to prepare and submit a proposal specifying (1) a fixed fee adjustment to the Agreement Sum, and (2) Services to be provided. If City and Contractor determine that the Additional Services are appropriate and necessary, such changes and/or modifications to the agreement shall be submitted in the form of a Change Order by the Director of Light & Power to the City of Vernon City Clerk's Office specifying the Additional Services to be provided as well as the additional costs that would be incurred by the City before proceeding with any Additional Services. The fee shall be negotiated in good faith and agreed to by the parties prior to the authorization of the Additional Services; provided, however, that if the parties are not able to reach agreement on the fee, Contractor shall provide the Additional Services pursuant to the City's written request, and payment shall be governed by the terms of Paragraph 7.2 of this Agreement. Change Orders shall Page 14 of 27 be effective only upon authorization by the City Council and execution of same by both Contractor and City's designated representative, the Director of Light & Power. A Change Order shall set forth all changes to the initial Agreement (fees, scope of work, and time frame, if applicable). 7.2 The QV's Directive/Notice of Intent to File Claim. If the parties cannot agree whether, or to what extent, the modification justifies adjustments to compensation or schedule, Contractor shall nonetheless timely perform the Additional Services, on the written direction of the City (the "City's Directive"), and Contractor shall submit a written "Notice of Intent to File Claim." The written Notice of Intent to File Claim shall reasonably detail the amount of, and basis for, the adjustment to the Agreement Sum and Agreement Term and shall be submitted to the City (if at 0) prior to commencing performance of the Additional Services. If the notice is timely given, Contractor shall keep and submit to the City on a daily basis a complete breakdown of all costs incurred for the Additional Services, including a labor breakdown by name of person, hours worked, and task performed, as well as a similar breakdown for all equipment used and copies of all invoices and delivery tickets for materials used. Contractor's failure to timely deliver a "Notice of Intent to File a Claim," or maintain and deliver an accurate cost breakdown and supporting documentation, shall constitute conclusive and non -rebuttable evidence that no adjustment to compensation or schedule is due for the Additional Services. If the cost breakdown and supporting documentation is delivered by Contractor, the parties shall endeavor, in good faith, to reach agreement on the increased cost of the Additional Services and the term adjustment, if any, to the Agreement Time. If the parties are not able to reach an agreement, the City shall pay to Contractor the undisputed portion of the charges. The basis for establishing the cost of Additional Services, if not otherwise agreed to by the parties, shall be the increased costs (taking into account any offset based on the change) of the following costs that are directly Page 15 of 27 attributable to the change: costs of labor, costs of materials, supplies, and equipment, costs of premiums for all increases in bonds and insurance, and additional costs of supervision and field office personnel. 7.3 Validity of Claim for Changes. No claim for additional compensation or extension of time shall be valid or recognized unless contained in an approved and authorized Change Order or City's Directive. Accordingly, no course of conduct or dealings between the parties, nor express or implied acceptance of alterations or additions to the Services, and no claim that City has been unjustly enriched by any alteration or addition to the Services, shall be the basis of any claim to an increase in any amounts due under the Agreement Documents or a change in any time period for the Services in the Agreement Documents. 7.4 Compliance with Agency Requirements and Law. Contractor's obligation to repair any defective Services shall include the obligation to make any repairs or replacements required to comply with applicable laws and any requirements, permits, or authorizations imposed by any governmental or quasi -governmental agency such as EPA or AQMD. 8. Protection of Persons and Property. 8.1 Safety of Persons and Property. Contractor shall take all reasonable precautions and conform to all safety provisions and practices for the safety of, and shall provide all reasonable protection to prevent damage, injury or loss to all employees while providing Services and all other persons who may be affected thereby. 8.2 Fire Precautions and Protection. Contractor shall take necessary precautions to guard against and eliminate possible fire hazards and prevent damage to equipment, temporary field offices, and public and private property. 8.3 Environmental Control. Page 16 of 27 8.3.1 Compliance with Law. All materials and work procedures used while providing said Services shall comply with all environmental and air pollution control regulations in effect at the Site. Contractor shall be responsible for obtaining all necessary approvals and certification as to compliance of the materials and work procedures. 9. Subcontractors. 9.1 Selection of Subcontractors. Services not provided by the Contractor's own personnel shall be performed under subcontract or by other appropriate agreements with Contractor (the "Subcontract"). If the City has a reasonable objection to any subcontractor, Contractor shall submit a substitute to whom the City has no reasonable objection, and the City and Contractor will negotiate in good faith to increase or decrease the Agreement Sum in order to reflect any change to the cost of Services resulting from the substitution of a new subcontractor. 9.2 ftment to Subcontractors. Contractor shall pay subcontractors based only on Services actually provided, shall make all payments due under each Subcontract at the time those payments become due, and shall hold the City harmless from any loss on account of Contractor's failure to do so. The City shall not have any obligation to pay or to see to the payment of any sums so due to any subcontractor. 9.3 Subcontractor Relations. In each Subcontract, Contractor shall require each subcontractor, to the extent of the Services to be provided by the subcontractor, to be bound to Contractor and by the terms of the Agreement Documents, and to assume toward Contractor all the obligations and responsibilities which Contractor, by the Agreement Documents, assumes toward the City. Each Subcontract shall (a) preserve and protect the rights of the City under the Agreement Documents with respect to the Services to be performed by the subcontractor so that the subcontract thereof will not prejudice such rights, (b) allow the City the benefit of Contractor's Page 17 of 27 rights, remedies and redress against the subcontractor, (c) be assignable to the City in the event that the City takes over the Services or terminates the Agreement as provided hereunder and the City specifically accepts such assignment by notifying the subcontractor in writing, (d) entitle the City to at least fifteen (15) days' written notice from the subcontractor of any default by Contractor under the Subcontract and provide the City with the right to cure any such default within said fifteen (15) day period (or, if default is not susceptible of being cured within fifteen days, to commence curing the same and to continue to take action to do so with diligence until the same is cured), and (e) specifically provide that the City is an intended third party beneficiary of such Subcontract. Contractor shall require each subcontractor to enter into similar agreements with its sub -subcontractors. Contractor shall make available to each proposed subcontractor, prior to the execution of the Subcontract, copies of the Agreement Documents to which the Subcontractor will be bound by this Paragraph 9.3 and identify to the subcontractor any terms and conditions of the proposed Subcontract which may be at variance with the Agreement Documents. Each subcontractor shall similarly make copies of such Agreement Documents available to its sub - subcontractors. 10. Termination of the Agreement. 10.1 Right of Termination. This Agreement maybe terminated by the City or Contractor, with or without cause, upon at least thirty (30) days written notice to the other party. 10.2 Termination by City Without Cause. In the event of termination by the City without cause, Contractor shall be compensated for all Services provided prior to the date of delivery of the termination notice, plus compensation for necessary Services performed during the notice period and authorized in the termination notice. Page 18 of 27 10.3 Termination by the City for Cause Cause. In the event that Contractor commits a breach of a material condition of this Agreement, the City shall notify Contractor in writing of said breach and if Contractor has not cured or begun reasonable efforts to cure after fifteen (15) calendar days of receipt of said notice, and fails to diligently pursue corrective action, the City shall have the right to cancel this Agreement for cause based on Contractor's default. Contractor shall be responsible for all direct and indirect costs due to the City's re -procurement of the equivalent of the Equipment or Services cancelled from Contractor. If this Agreement is terminated by the City with cause, or terminated by Contractor without cause, the City shall pay Contractor for all Services performed 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 Contractor's default. 10.4 Actions Subsequent to Termination. Following the termination date, regardless of whether the Agreement is terminated with or without cause, and subject only to the payments described in Paragraphs 10.2 or 10.3, as applicable, the City shall have no further rights, duties, liabilities or obligations whatsoever under this Agreement. Notwithstanding anything in this Agreement, including the foregoing, to the contrary, Paragraphs 1.2, 6.4, 6.6, 10.5, 11, 12.2, 12.3, 12.4, and 12.12 shall survive the termination of this Agreement. 11. Confidential Information. 11.1 Access to Confidential Information. The City may provide Contractor and/or its subcontractors with, or allow Contractor 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, and information concerning various companies' sales, value of assets, or other confidential information about companies Page 19 of 27 dealing with the City. All such non-public information shall be known as "Confidential Information" and may not be used by Contractor for any purpose other than to perform its duties hereunder. 11.2 No Disclosure. Except as expressly permitted by prior written consent of the City, Contractor and/or its subcontractors 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 the City. Contractor and/or its subcontractors 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 Contractor has performed all Services to be performed pursuant to this Agreement. Contractor hereby agrees that such Confidential Information and any documents provided may be used by Contractor and/or its subcontractors only as authorized by the City. Contractor shall include a provision in its agreements with subcontractors that binds the subcontractors to this non -disclosure requirement. 11.3 Court Ordered Disclosure. Contractor 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. Contractor 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. 11.4 Exceptions to Confidentiality. The foregoing obligations shall not apply to any Confidential Information lawfully in Contractor'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; that now is, or later becomes, publicly known through no breach of confidential obligation by Page 20 of 27 Contractor or its subcontractors; or, that is required to be disclosed pursuant to any law, ordinance, or regulations. 11.5 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 11. Contractor 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. 11.6 Reciprocal. City will owe Contractor the same reciprocal duties of confidentiality as Contractor owes City under this section. 12. General Provisions. 12.1 The Agreement Documents. The Agreement Documents represent the entire and integrated Agreement between the parties hereto, and supersede and replace all prior and contemporaneous negotiations, representations, discussions, or agreements between the parties related to the matters set forth in the Agreement Documents. Notwithstanding anything to the contrary in the Agreement Documents, any reference in the Proposal to "misc. clarifications and attachments by Contractor and its other subcontractors" shall refer only to documents that are specifically identified as exhibits to the Proposal or to this Agreement, and are attached to the Proposal or this Agreement. Any reference in the Proposal to any clarifications, agreements, drawings, or documents that are not attached to the Proposal or this Agreement shall not be part of the Agreement Documents. The Agreement may be amended or modified only by a written amendment and/or Change Order signed by the parties. Nothing contained in the Agreement Page 21 of 27 Documents shall create any contractual relationship between the City and any other party, including any contractor or subcontractor of Contractor. 12.2 Forum Selection. Any action brought relating to this Agreement shall be brought and held exclusively in a Court in or serving the County of Los Angeles, California. 12.3 Attomeys' Fees. If either party institutes an action or legal proceeding arising out of or related to the Agreement Documents or the relationship of the parties or their rights or duties in connection with the matters set forth in the Agreement Documents, 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. 12.4 Notices. All notices required or permitted by this Agreement shall be in writing and are to be sent in any one of the following manners: 1) certified or registered mail, return receipt requested, 2) express mail, 3) courier service or express mail delivery, or 3) facsimile transmission during normal business hours, if delivery is confirmed, and provided a copy of the transmission receipt is also delivered via U.S. Mail. Notices shall be deemed effective upon delivery or refusal to accept delivery, if served in a manner specified in this Paragraph 12.4 to the recipient addressed as set forth below. Since the City's business hours are Monday through Thursday from 7:00 a.m. to 5:30 p.m. if a notice is delivered on a Friday, 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: VERNON CITY HALL Attn: Bruce V. Malkenhorst, Jr., Acting City Clerk 4305 Santa Fe Avenue Vernon, CA 90058 Page 22 of 27 AND VERNON CITY HALL 4305 Santa Fe Avenue Vernon, CA 90058 Att: Mr, Donal O'Callaghan, Director of Light & Power CONTRACTOR: NALCO, a Delaware Corporation 1601 W. Diehl Road Naperville, IL 60563-1198 12.5 Invoices- All invoices shall mailed via U. S. Postal Service to the following address: Vernon City Hall Att: Treasurer's Dept/Light & Power 4305 Santa Fe Avenue Vernon, CA 90058 All notices from Contractor with regard to chemical deliveries in conjunction with the daily operations of the "Malburg Generating Station" shall be addressed to: Malburg Generating Station Mr. Ervin Patterson, Plant Manager 2715 E. 50' Street Vernon, CA 90058 12.6 Status of Contractor. At all times during the term of this Agreement, Contractor shall be an independent contractor. Except as the City may specify in writing, Contractor shall have no authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent. Contractor shall have no authority, expressed or implied, pursuant to this Agreement to bind the City to any obligation whatsoever. 12.7 Insurance. Contractor agrees to provide insurance in the amounts and forms specified in Exhibit B, which is attached hereto and made a part hereof by reference. Comparable coverage shall be provided for each subcontractor used in the performance of this Agreement. Contractor 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 Agreement. Contractor shall not commence performance of the Services under this Agreement Page 23 of 27 Agreement. Contractor shall not commence performance of the Services under this Agreement until the above insurance has been obtained and proof of insurance has been filed with and approved by the City. 12.8 Assignment Prohibited. No party to this Agreement may assign any right or obligation except with the express written consent of the other parry; provided, however, that Contractor may enter subcontracts to perform portions of the Services under the terms and conditions of this Agreement and Contractor may by written request assign any right to receive monies earned hereunder. 12.9 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 Agreement. All other terms and conditions shall remain in full force and effect. 12.10 Waiver. No action or failure to act by the City or Contractor shall constitute a waiver of any right or duty afforded any of them under the Agreement Documents, nor shall any such action or failure to act constitute an approval of any breach thereunder, except as may be specifically agreed in writing. 12.11 Rights and Remedies. The City's rights and remedies under the Agreement Documents are cumulative with and in addition to all other legal and equitable rights and remedies which the City may have under applicable law. 12.12 Arbitration. The parties agree that any and all disputes arising out of or in relation to this Agreement, including without limitation any action in tort, shall be resolved Page 24 of 27 auspices of and pursuant to the rules of the Judicial Arbitration & Mediation Services Inc. (JAMS). Each party will select an arbitrator. Those two arbitrators will then select a third. The three member panel will make the final decision. All decisions of the arbitrators shall be in writing, and the arbitrators shall provide written reasons for their decision. The arbitration decision shall be final and binding on the parties. Notwithstanding the foregoing, the parties shall be permitted to access the court system to enforce any arbitration award or to obtain injunctive relief. The exclusive jurisdiction and venue for any such action shall be the Superior Court of California, Los Angeles County. Any and all contracts between Contractor and any subcontractor shall include the same arbitration clause. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by and through their authorized officers on the date, month, and year first written above. CITY OF VERNON AT By: Date: Date I L nis C. Maibu , Mayor Bruce V. alkenhorst, Jr., Acting C ty Clerk APP�RO'"VED AS TO FORM: Date: 11-1-06 Eric T. Fresch, City Attorney CONTRACTOR COMPANY, a Dela a Corporation , By:5'ti. By: Typed Name: S~t-��,r,, i\ns o ry Typed Name: i i V 1 arm Qom Title: Title: cmANrAi c'er 0-od I ion Pt^es►c�en , �n� �4.� �- Page 25 of 27 EXHIBIT "A" (Proposal to be Supplied by Contractor) Page 27 of 27 INSURANCE SCHEDULE (CONTRACTOR) Contractor shall provide proof of insurance, including but not limited to, a standard original certificate of insurance, in at least the following amounts and coverage (combined single limit permitted): I. Coverage and Limits Bodily Injury Pronertv Damage Hazards Each Person Each Accident E&ch Accident Automobile Liability 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' Liabilitt $1,000,000 per employer H. Lim General Liability $1,000,000 $2,000,000 $1,000,000 Premises Operations $1,000,000 $2,000,000 $1,000,000 Elevators (If Applicable) $1,000,000 $2,000,000 $1,000,000 Independent Contractors $1,000,000 $2,000,000 $1,000,000 Products - Completed Operations $1,000,000 $2,000,000 $1,000,000 Contractual Liability $1,000,000 $2,000,000 $1,000,000 Umbrella Liability $2,000,000 $2,000,000 $2.000.000 a. The general liability policy shall contain the following special endorsements which shall be noted on or attached to the standard certificate of insurance: 1. An original 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 and specifying the activities covered. 4. Such other endorsement as may be required by City. 5. A copy of your general and umbrella insurance policy declarations page. 6. A copy of schedule of forms of endorsement. b. In addition to the above, the Contractor shall provide such further proof of insurance documentation as the City deems necessary. Page 26 of 27 August 2006 through June 2007 COV Operating Budget Estimate for Boiler and Cooling Water Chemicals Cooling Tower Estimates Based on 335 days operation Material Usage Rates Package Annual Use Annual Cost Sulfuric Acid 50-90 GPD Small Bulk Delivery 23725 gallons $85,410.00 Hypochlorite 25-80 GPD Small Bulk Delivery 15000 gallons $73,800.00 total $159,210.00 3DT-195 5-8 GPD Med Bulk Delivery 2880 gallons $40,900.00 7330 as required Transfer Sery 220 gallons $7,900.00 7348 1.5 GPD Transfer Sery 600 gallons $26,478.28 total $75,278.28 Sulfuric acid and sodium hypohchlorite usage rates vary significantly with season Acid and Sodium hypochlorite also vary with plant load. These two factors Account for the wide usage range on these materials. 0 L" / Boiler Chemical Estimates for Aug 2006 - June 2007 Based on`,days operation Material Usage Rates Package Annual Use Annual Cost BT-3000 1.6 GPD 55 gallon transfer 550 gallons $11,905.92 Nalco 352 0.3 GPD 55 gallon transfer 110 gallons $2,400.00 Eliminox 0.2 GPD 55 gallon transfer 72 gallons $1,200.00 total $15,505.92 * Actual Boiler costs are expected to be lower as daily usage of phosphate materials are reduced. RO Chemical Estimates for 2006 based onjWdays Material Usage Rates Package Annual Use Annual Cost BL-409 0.13 GPD 5-gallon pails 50 gallons $2,000 7408 0.59 GPD 55 gallon or 15 gallon 225 gallons $5,094.99 7341 0.23 GPD 15 gallon pails 120 gallons $1,500 PC-191 0.3 GPD 55 gallon drums 110 gallons $3,800 8103 0.02 GPD 5-gallon pails 10 gallons $400 +-4.1 c4,j 7nr. * These RO chemical estimates are based on current operation. Cleaning chemicals are not included Laboratory and Testing Budget should remain at approx $8,000 year This includes Testing Reagents Analytical testing Legionella Testing as part of COVs agreement with the CEC Total Budget for August 2006 to June 2007 $270,789.19 EXHIBIT "A" page 27 of 27 EXHIBIT B ACORD,N CERTIFICATE OF LIABILITY INSURANCE Page l of 3 DATE 1 02/18/2005 PRODUCER 877-945-7378 Willis North America, Inc. - Regional Cert Center 26 Century Blvd. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIL# P. O. Box 305191 Nashville, TN 372305191 INSURED Nalco Company & Nalco Energy Services, L.P. INSURERA: American Home Assurance Company 19380-701 INSURERB:American Home Assurance Compare 19380-101 Corp. Ins. & Risk Mgmt. 1601 West Diehl Road Naperville, IL 60563 INSURERC:Insurance Compare of the State of PA 19429-701 INSURER D: INSURER E GUVtKAGtJ THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ILT R LTR DD' NSR TYPE OF INSURANCE POLICY NUMBER POLICY DA EYMMF/DEDN PDATE MM/DD TION LIMBS A GENERAL LIABILITY $ COMMERCIAL GENERAL LIABILITY CLAIMS MADE 5XI OCCUR 6051470 3/1/2005 3/1/2008 EACH OCCURRENCE $ 3,000,000 DAMAGE TO RENTED PREMISES Ea occurence $ 50,000 MEDEXP Anyone person) $ 5 000 PERSONAL& ADV INJURY $ 3,000,000 GENERAL AGGREGATE $ 6 000 000 PRODUCTS - COMP/OP AGG $ 6,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: $ POLICY JECOT- LOC A B AUTOMOBILE g LIABILITY ANYAUTO (ALL) 2053310 (MA) 2053311 3/1/2005 3/1/2005 3/1/2008 3/1/2008 COMBINED SINGLE LIMIT (Ea accident) $ 2,000,000 A A ALLOWNEDAUTOS SCHEDULEDAUTOS (TX) 2053312 (VA) 2053313 3/1/2005 3/1/2005 3/1/2008 3/1/2008 BODILY INJURY (Per person) $ HIRED AUTOS BODILY INJURY (Per accident). $ NON -OWNED AUTOS PROPERTYDAMAGE (Per accident) $ GARAGE LIABILITY AUTO ONLY -EA ACCIDENT $ OTHERTHAN EAACC AUTO ONLY: AGG $ ANY AUTO $ EXCESS LIABILITY OCCUR CLAIMSMADE EACH OCCURRENCE $ AGGREGATE $ $ DEDUCTIBLE WCSTATIT OTH- X TORYLIMITS ER C A A A A RETENTION $ WORKERS COMPENSATION AND WORKSEMPLOSCOM\BNSA ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBEREXCLUDED? It yes, describe under SPECIAL PROVISIONS below OTHER Commercial General Liab. 5899508 5899509 5899510 5899511 6051470 3/1/2005 3/1/2005 3/1/2005 3 1 2 05 3 1 2005 3/1/2008 3/1/2008 3/1/2008 3 1 2008 3/1/2008 E.L. EACH ACCIDENT $ 2,000,000 E.L. DISEASE - EA EMPLOYEE $ 2,000 000 E.L. DISEASE -POLICY LIMIT $ 2,000,00 General Liability Policy Limits are in Excess of a $2,000,000. Self -Insured Retention Per Occurrence DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/EXCLUSIONS ADDED BY ENDORSEMENTISPECIAL PROVISIONS SEE ATTACHED CK SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 1 v ��-.0 n Aenon rn0Dn0ATInN 19AR ACORD 25 (2001/08) C011:1ZLL4Z0 '1'p1:jgVUVV DATE Willis CERTIFICATE OF LIABILITY INSURANCE Page 2 of 3 02/18/2005 PRODUCER 877-945-7378 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Willie North America, Inc. - Regional Cert Center HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 26 Century Blvd. ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. P. O. Box 305191 Nashville, TN 372305191 INSURERS AFFORDING COVERAGE NAIC# INSURED Nalco Company & Nalco Energy Services, L.P. INSURERA:American Home Assurance Company 19380-701 Corp. Ins. & Risk Mgmt. INSURERB:Amer'Can Home Assurance Company 19380-101 1601 West Diehl Road Naperville, IL 60563 INSURERC:Insurance Company of the State of PA 19429-701 INSURER D: DESCRIPTION OF OPERATIONSILOCATIONSNEHICLESIEXCLUSIONS ADDED BY ENDORSEMeN 11s .... rnvv.awna Worker's Compensation: Policy #5899512, Illinois National Insurance Company Policy dates: 03/01/05 to 03/01/08 Limits: EL Each Accident $2,000,000. EL Disease -Ea. Employee $2,000,000. EL Disease -Policy Limit $2,000,000. Workers Compensation Policies By State: Policy No.: 5899508 - All Other States Policy No.: 5899509 - CA Policy No.: 5899510 - FL, OR Policy No.: 5899511 - IL, PA, ND, OH, WA, WI, WV Policy No.: 5899512 - MA, NY Workers Compensation Coverage: THE PROPRIETOR/ PARTNERS/EXECUTIVE ARE: INCLUDED City of Vernon, its officers, and employees are named as Additional Insureds, except under Worker's Compensation, with respect to liability arising out of the negligence of the Named Insured performing operations for the Certificate Holder within the contract period. C011:12ZL4ZO Tp1:34Cvu7 va. «i vv vV . as rAA 10006 Fax Server 9/29/2006 8:26:26 AM PAGE 6/006 Fax Server ENDORSEMENT This endorsement, effective 12:01 A.M. 3/1/2005 forms a part of policy No. 6051470 issued to Nalco Company & Nalco Energy Services, L.P. by American Home Assurance Company THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED — WHERE REQUIRED UNDER CONTRACT OR AGREEMENT This endorsement modifies insurance provided under the following. - COMMERCIAL GENERAL LIABILITY COVERAGE FORM Section 11— Who is an Insured,.1., is amended to add: f) Any person or organization to whom you become obligated to include as an additional insured under this policy, as a result of any contract or agreement you enter into which requires you to furnish insurance to that person or organization of the type provided by this policy, but only with respect to liability arising out of your operations or premises owned by or rented to you. However, the insurance provided will not exceed the lesser of: 1. The coverage and/or limits of this policy, or 2. The coverage and/or limits required by said contract or agreement. Authorized Representative or Countersignature (in States Where Applicable) 61712 (9/01) Uyi cai vo UU: as VAA 10005 Fax Server 9/29/2006 8:26:26 AM PAGE 5/006 Fax Server THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ENDORSEMENT # This endorsement, effective 12:01 A.M. 3/1/2005 forms a part of Policy No. 2053310(AOS), 2053391(MA), 2053312(TX), 2053313(VA) issued to Nalco Company & Nalco Energy Services, L.P. by American Home Assurance Company ADDITIONAL INSURED - WHERE REQUIRED UNDER CONTRACT OR AGREEMENT (PROFESSIONAL SERVICES EXCLUSION) This endorsement rnodfies insurance provided under the fo/%winq BUSINESS AUTO COVERAGE FORM Section II - Liability Coverage, A. - Coverage, 1. - Who Is An Insured, is amended to add: d. Any person or organization to whom you become obligated to include as an additional insured under this policy, as a result of any contract or agreement you enter into, excluding contracts or agreements for professional services, which requires you to furnish insurance to that person or organization of the type provided by this policy, but only with respect to liability arising out of your operations or premises owned by or rented to you. However, the insurance provided will not exceed the lesser of: 1, The coverage and/or limits of this policy, or 2. The coverage and/or limits required by said contractor agreement. AUTHORIZED REPRESENTATIVE 61710 (12/94) i ah oci vci 1U/ Ltb/ LUUE7 10: bL AM PAGE L/ UU2 Fax Server 10/18/2006 14:17 FAX 323 826 1439 LEGAL DEFT VERNON IM002 CITY COUNCL LBONlS C MALBURG Mayor THOMAS A YBARRA. Ma7ar PZD-ew WM "$ILL" DAVIS Councilman H. "LARRY" GONZALES Comadlman W. IMC -1 A EL MCCORWCK Councilmen TO AGENT: 4305 Santa Be Avenue, Vernon, California 90058 telephone (323) 583-8811 AGENCY: @Finis North AWwka, be. FAX NO: TEL NO: FROM: Milard Yamamehi,Chid Denali Giti'o rgeg�Aeting Risk Manager Re Insured: Nalco Com-pany Date;10118106 The City of Vemon Mquhm that insurance agents for all of its vendors provide a signed statement that the failowing policies are is farce• at this iirue: SQL BENUDIZ Police Chief MARK C WHITWORTH Acting111re Cbief LEWIS j POZZBBON Director of Environmental Heal'f S KEVLN WILSON Director of Commurdty Services SHARCN L. DUCKWORTH Acting City lreasurrr Type of coverage Insurance Policy No. Effective Bate and Aggregate Co iration Date Limits COMMemial General ��, r o� I.iab" e9ss rD/�7v o Gov, cam+ BusinessAnto Fi/tia�.•�� ���� �; Liability N ° .Je & I Workers' ,�,�✓ 3f. �.� �'Dnl etlS2tiD7] N sriiv3R.A S �©x ®$ 2. rvw Excess/Umbrella or ok a est-00A0- 3 ! / c. c ta,.rs i✓ Professional liabilityrt s "44,� (pVQ6 7 a _T eg, List any major exclusloos: Agents flame (Please Print) Date Gents signature Acceptance of Facsimile Signatures. The parties agree that this Release will be considered signed when the signature of a party is delivered by facsimile transmission. Such facsimile signature shall be treated in. all respects as having the samD effect as an original signature. Original docrnnents to follow. d uAve(y UIX'Stdal Best's Rating Center - Company Information for American Home Assurance Company Page 1 of 2 Search Best's Ratsts Press Releases Related Products t Industry S Regioncl Country Risk Flowto Get Rated Contact an Analyst is: Financial -Strength issuer_Credit Securities Advanced Search .............,% Home Assurance Company (a member of American I_ntem_a__ Tonal Group_Inc) A.M.Best #: 02034 NAIC #: 19380 FEIN #: 135124990 Address: 70 Pine Street Phone: 212-770-7000 New York, NY 10270 web: www.aia.com Best's Ratings Financial Strength Ratings view Definitions Rating: A+ (Superior) Affiliation Code: p (Pooled) Financial Size Category: XV ($2 billion or more) Outlook: Stable Action: Affirmed Effective Date: June 13, 2006 * Denotes Under Review Best's Ratin—ass Other Web Centei Assigned to companies that have, in our opinion, a superior ability to meet their ongoing obligations to policyholders. L Issuer Credit Ratings view Definitio Long-Term:aa- Outlook: Stable Action: Affirmed Date: June 13, 2006 Reports and News Visit our NewsRoom for the latest news and press releases for this company and its A.M. Best Grou f -u SesC Comaanv Report - includes Best's Financial Strength Rating and rationale along witl ;17 analytical commentary, detailed business overview and key financial data. Report Revision Date: 07/21/2006 (represents the latest significant change). Historical Reports are available in Best's Company Report Archive. Best's Executive Summary Reports (Financial Overview) -available in three versions, the style reports feature balance sheet, income statement, key financial performance tests inclu( liquidity and reserve analysis. Data Status: 2006 Best's Statement File - P/C, US. Contains data compiled as of 829/2006 Checked). • Single Company - five years of financial data specifically on this company. • Comparison - side -by -side financial analysis of this company with a peer group of up to companies you select. • Composite - evaluate this company's financials against a peer group composite. Report average and total composite of your selected peer group. Note: Adobe Reader is required to view the reports listed above. This software is available h Stems Inc. An Excel export option is also available once the report has been opened usinc Best's Key Rating Guide Presentation Report - includes Best's Financial Strength Rating i. as provided in Best's Key Rating Guide products. Data Status: 2005 Financial Data (Quality Cross Checked). Financial and Analytical Products Best's Property/Casualty Center _Premium Data &_ Reports Best's Key Rating Guide - P/C, US & Canada Best's_Statement _File _- P/C,_US_ Best's Statement File - Global http://www3.ambest.com/ratings/FullProfile.asp?B1=0&AMBNUM=2034&AItSrc=1 &Alt... 10/2/2006 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 January 2, 2008 NALCO Company 1601 W. Diehl Road Naperville, IL 60563-1198 Re: Consent to Assignment of Services Agreement Gentlemen: The City of Vernon ("Vernon") has entered into a binding contract to sell its interests in the Malburg Generating Station and certain assets related thereto to Bicent (California) Power LLC ("Purchaser"). Pursuant to Section 12.8 of that certain Services Agreement, dated as of November 1, 2006, by and between Vernon and NALCO Company ("NALCO"), as amended by that certain Contract Change Order No. One to the Services Agreement, dated as of September 11, 2007 (together, the "NALGO Contract"), Vernon hereby provides NALGO with formal notice of, and requests NALCO's written consent to, the assignment of the NALGO Contract to Purchaser. Section 12.8 of the NALGO Contract provides that no party may assign any right or obligation without the express written consent of the other party. Vernon hereby respectfully requests that within 15 business days of the date of this request, NALGO consent to the assignment of the NALCO Contract to Purchaser by executing the consent to assignment set forth on the second page of this letter. NALGO Company January 2, 2008 Page 2 Please evidence your consent to the assignment by faxing a signed copy of the consent to Vernon in care of its outside counsel, Christopher E.J. Yang of Latham & Watkins LLP, at (213) 891-8763. If there are any questions concerning this request, please contact Mr. Yang at (213) 891-8965. CITY OF VERNON By: Eric T. Fresch Title: City Administrator ETF:j1 cc: Christopher Yang, Latham & Watkins NALGO Company, 2111 E. Dominguez St. Long Beach, CA 90810-1007 CONSENT TO ASSIGNMENT Delivered by Facsimile as Requested Pursuant to Section 12.8 of the NALGO Contract, NALGO Company hereby consents to the assignment by Vernon of the NALGO Contract to Purchaser, as requested and described above, which consent shall be effective immediately upon delivery to Vernon. NALGO COMPANY By. Title. Date: bcc: Nelly Giron, City Clerk (one original signed by City) CITY OF VERNON Light & Power Department Contract Change Order No. 1 to Services Agreement dated 11/01/06, as amended Page 1 of 1 CONSULTANT: NALCO COMPANY- (PO #055.0000033) TO: Michael Mackey, Sr. Account Manager Nalco Company, PO Box 70716, Chicago, IL 60673-0716 REQUESTED BY: City of Vernon You are hereby authorized to make the herein described changes, or do the following described work not included in the original agreement: ADDITIONAL SCOPE OF WORK AND/OR ADJUSTMENTS IN COMPENSATION AS IDENTIFIED BELOW FOR THE FISCAL YEAR (2007-2008): • Continue to provide chemical supplies and equipment as necessary/required for operations of the MGS facility in an amount not to exceed: $275,000.00 • Operate on an consignment billing system (comparison of ending and beginning inventories at the end of each billing period) based on the attached July 2007-June 2008 Pricing • Extend the term of the Services Agreement from July 1, 2007 to June 30, 2008 Total amount of this requested Change Order not to exceed $275,000.00 Except as specifically modified herein, all terms and conditions of the original Agreement remain in full force and effect, and apply to the additional compensation as if said compensation was originally included in the Agreement Base Amount of Contract: $275,000.00 Revised contract ArountR. ding this requestedChange Order No. 1): $550,000.00 4��.�� g , Zoos A ved:-`.,�. �n �� Date: August ust � pp--DO-NAL O CALLAGHAN Dire tour f Li ht & Power We, the undersigned Consultant/Vendor, have given careful consideration to the change proposed and hereby agree. If this Change Order is approved we will continue to provide the necessary support services with additional compensation NOT to exceed the amount written above. Accepted: Nalco Company , Date: 911107 By: Title: f 0� cm�la? Transmittal Number: L&P-0190 Page 1 of 1 R City of Vernon TRANSMITTAL Light & Power Department LETTER 4305 Santa Fe Avenue, Vernon, CA 90058 Tel.: 323-583-8811, Ext. 561 Fax: 323-826-1425 FROM: Light & Power Department DATE: 01f/10/07 ATTN: Michael Mackey, Senior Account Manager Nalco Company TO: 2111 E. Dominguez Street Long Beach, CA 90810 cc: We Transmit For Your The Following ® Herewith ❑ Under Separate Cover Transmitted Via ❑ Approval ❑ Specifications ❑ Review and Comment ❑ Submittals ❑ Fax Number: ❑ Distribution as Indicated ❑ Drawings ® Overnight Service: 8534 9086 8850 ❑ Information Only ❑ Close -Out Documents ❑ US Mail: ® Use/File ❑ Computer Files ❑ Per Your Instructions ® Action: Sign/Date and return ❑ Documents ❑ Hand Delivered original to City of Vernon ® Contract Documents: Second Request ❑ Other: ❑ Other: Minutes of Meetings Copies Date Description 1 8/10/07 - Lttr Nalco Company, Extended Term of the Services Agreement From July 1, 2007 to June 30, 2008, Change Order No. 1 $275,000.00 8/7/07 Change Order No. 1 COMMENTS Transmitted From: Robin M. Tolmasoff 4305 Santa Fe Avenue, Vernon, CA 90058 Tel.: 323-583-8811, Ext 561 Fax: 323-826-1425 Copies To: File: Mark Thompson Chron L&P Project Controls City Administration Please Sign, Date and Return r LIGHT & POWER DEPARTMENT Donal O'Callaghan, Director of Light & Power August 10, 2007 Mr. Michael Mackey Senior Account Manager Nalco Company 2111 E. Dominguez Street Long Beach, California 90810 VIA FEDEX 8534 9086 8850 Subject: Nalco Company — (PO #055.0000033) Extended Term of the Services Agreement from July 1, 2007 to June 30, 2008 To date, we have not received the executed original Contract Change Order No. 1 to the Services Agreement, as amended, in the amount of $275,000.00. In order to expedite Invoice No. 93366499 dated July 6, 2007 in the amount of $1,126.88, we need to have the attached Contract Change Order No. 1 signed and returned to the undersigned below. Please retain a copy for your records and return by FedEx the executed original Contract Change Order No. 1. If you have any questions, please call Marc Duflos at (323) 583-8811, extension 312. Sincerely, CITY OF VERNON Donal O'Callaghan „\ Director of Light and Power DO:rmt Enclosure Project Controls Mark Thompson Document Control 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 Fax (323) 826-1425 E CAsivefy Industriaf CITY OF VERNON Light & Power Department Contract Change Order No. 1 to Services Agreement dated 11/01/06, as amended Page 1 of 1 CONSULTANT: NALCO COMPANY — (PO #055.0000033) TO: Michael Mackey, Sr. Account Manager Nalco Company, PO Box 70716, Chicago, IL 60673-0716 REQUESTED BY: City of Vernon You are hereby authorized to make the herein described changes, or do the following described work not included in the original agreement. ADDITIONAL SCOPE OF WORK AND/OR ADJUSTMENTS IN COMPENSATION AS IDENTIFIED BELOW FOR THE FISCAL YEAR (2007-2008): • Continue to provide chemical supplies and equipment as necessary/required for operations of the MGS facility in an amount not to exceed: $275,000.00 • Operate on an consignment billing system (comparison of ending and beginning inventories at the end of each billing period) based on the attached July 2007-June 2008 Pricing • Extend the term of the Services Agreement from July 1, 2007 to June 30, 2008 Total amount of this requested Change Order not to exceed: $275,000.00 Except as specifically modified herein, all terms and conditions of the original Agreement remain in full force and effect, and apply to the additional compensation as if said compensation was originally included in the Agreement Base Amount of Contract: $275,000.00 Revised contract un 'n d#ng this requested Change Order No.1): m $550,000.00 Appr wed- _\r-- Date: August 7, 2007 -D6NAL O CALLAGHAN, Dire Light & Power We, the undersigned Consultant/Vendor, have given careful consideration to the change proposed and hereby agree. if this Change Order is approved we will continue to -provide the necessary support services with additional compensation NOT to exceed the amount written above. Accepted: Nalco Company Date: By: Title: cc: Purchasing FROM: Donal O'Callaghan CITY CLERK Director of Light & Power 21.110-1 - -091 � 7 P05-ASE EV6M 1r Fvi-o -x5 g-eb RE: Nalco Company -QRtC,f► KL C On September 5, 2006, the City Council approved and adopted Resolution No. 9118. Purchase Order No. 14510 dated November 6, 2006 was issued for Nalco Company to provide chemical supplies and equipment as necessary/required for operations of the Malburg Generating Station for the period August 1, 2006 to June 30, 2007 in an amount not to exceed $275,000.00. It has been recently determined that the services of Nalco Company will be required for fiscal year 2007-2008. Submitted herewith for your records is Contract Change Order No. 1 to the Services Agreement. Att.: Contract Change Order No. 1 Cc: - L&P Document Control - L&P A/P Contracts Files Donal O'Callaghan, Director of Light & Power CITY OF VERNON Light & Power Department Contract Change Order No. 1 to Services Agreement dated 11 /01 /06, as amended Page 1 of 1 CONSULTANT: NALCO COMPANY- (PO #055.0000033) TO: Michael Mackey, Sr. Account Manager Nalco Company, PO Box 70716, Chicago, IL 60673-0716 REQUESTED BY: City of Vernon You are hereby authorized to make the herein described_ changes, or do the following described work not included in the original agreement. ADDITIONAL SCOPE OF WORK AND/OR ADJUSTMENTS IN COMPENSATION AS IDENTIFIED BELOW FOR THE FISCAL YEAR (2007-2008): • Continue to provide chemical supplies and equipment as necessary/required for operations of the MGS facility in an amount not to exceed: $275,000.00 • Operate on an consignment billing system (comparison of ending and beginning inventories at the end of each billing period) based on the attached July 2007-June 2008 Pricing • Extend the term of the Services Agreement from July 1, 2007 to June 30, 2008 Total amount of this requested Change Order not to exceed: $275,000.00 Except as specifically modified herein, all terms and conditions of the original Agree m n' 7 remain in full force and effect, and apply to the additional compensation as if said compensation was originally included in the Agreement Base Amount of Contract: V $275,000.00 Revised contract Amount (including this requested Change Order No. 1): $550,000.00 Approved: Date; DONAL O'CALLAGHAN, Director of Light & Power We, the undersigned Consultant/Vendor, have given careful consideration to the change proposed and hereby agree. If this Change Order is approved we will continue to provide the necessary support services with additional compensation NOT to exceed the amount written above. Accepted: Nalco Company Date: By. Title: cc: Purchasing