1500 Warburton Avenue
City of Santa Clara Santa Clara, CA 95050
APPROVED santaclaraca.gov
"ITY @SantaClaraCity
_if concil
1852
THE MISHION CUT Agenda Report
5/26/18
18-1079 Agenda Date: 8/28/2018
REPORT TO COUNCIL
SUBJECT
Action on an Agreement for the Performance of Services with Nalco Company, LLC to Provide Water Treatment Services at the Donald Von Raesfeld (DVR) Power Plant
BACKGROUND
In order to maximize the asset life of the Donald Von Raesfeld (DVR) Power Plant and associated equipment, it is necessary to have in place a proper water treatment chemical program. This treatment program is specialized and specific to the machinery, operating profile, and regulatory requirements at the DVR Power Plant.
DISCUSSION
In November 2017, Silicon Valley Power (SVP) prepared an RFP which included posting on the City website and the solicitation of three industry known service providers. SVP received three qualified proposals. Staff reviewed each proposal to determine overall best value including cost and experience with similar facilities reducing the risk of equipment damage and higher maintenance costs due to corrosion and scale build-up. Nalco was selected as the provider based on the criteria, value, and expertise.
Staff proposes to enter into a three (3) year agreement with Nalco Company, LLC to provide chemicals, services, and a quality water treatment program that is economical and effective. Without a proper chemical program to protect the equipment from scaling and pitting, the life of the equipment would be reduced.
ENVIRONMENTAL REVIEW
The action being considered does not constitute a "project" within the meaning of the California Environmental Quality Act ("CEQA") pursuant to CEQÁ Guidelines section 15378(a) as it has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.
FISCAL IMPACT
The total cost of this Agreement for the Performance of Services with Nalco Company, LLC shall not exceed $143,261 for the first year, for a total not-to-exceed amount of $429,785 over a three (3) year term. Sufficient funds are available in the Electric Department Operating Generation Pumping Expense account.
COORDINATION
This report has been coordinated with the Finance and City Attorney's Office.
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18-1079 Agenda Date: 8/28/2018
PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City's official-notice bulletin board outside City Hail Council Chambers. A complete agenda packet is available on the City's website and in the City Clerk's Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk's Office at (408) 615-2220, email [email protected] <mailto:[email protected]> or at the public information desk at any City of Santa Clara public library.
RECOMMENDATION
Approve an Agreement for the Performance of Services with Nalco Company, LLC to provide water treatment services in an amount not-to-exceed $429,785 over a three (3) year period.
Reviewed by: John C. Roukema, Chief Electric Utility Officer Approved by: Deanna J. Santana, City Manager
ATTACHMENTS
1. Agreement for the Performance of Services with Nalco Company, LLC City of Santa Clara Page 2 of 2
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EBIX Insurance No. S200001195
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
NALCO COMPANY LLC
PREAMBLE
This agreement for the performance of services ("Agreement") is by and between Nalco Company LLC, a Delaware limited liability company, with its principal place of business located at 1601 W. Diehl Road, Naperville, Illinois 60563 ("Contractor"), and the City of Santa Clara, California, a chartered California municipal corporation with its primary business address at 1500 Warburton Avenue, Santa Clara, California 95050 ("City"). City and Contractor may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement."
RECITALS
A. City desires to secure professional services more fully described in this Agreement, at Exhibit A, entitled "Scope of Services"; and
B. Contractor represents that it, and its subcontractors, if any, have the professional qualifications, expertise, necessary licenses and desire to provide certain goods and/or required services of the quality and type which meet objectives and requirements of City; and,
C. The Parties have specified herein the terms and conditions under which such services will be provided and paid for.
The Parties agree as follows:
AGREEMENT PROVISIONS
1. EMPLOYMENT OF CONTRACTOR.
City hereby employs Contractor to perform services set forth in this Agreement. To accomplish that end, City may assign a Project Manager to personally direct the Services to be provided by Contractor and will notify Contractor in writing of City's choice. Cit shall pay for all such materials and services provided which are consistent with the terms
2. SERVICES TO BE PROVIDED.
Except as specified in this Agreement, Contractor shall furnish all technical and professional services, including labor, material, equipment, transportation, supervisio and escally referred to as "Services" to satisfactorily complete the work required by City at his/her own risk and expense. Services to be provided to City are Agreement for the Performance of Services/Nalco Company LLC Page 1 of 10 Rev. 06/22/17
more fully described in Exhibit A entitled "SCOPE OF SERVICES." All of the exhibits referenced in this Agreement are attached and are incorporated by this reference.
3. COMMENCEMENT AND COMPLETION OF SERVICES.
A. Contractor shall begin providing the services under the requirements of this Agreement upon receipt of written Notice to Proceed from City. Such notice shall be deemed to have occurred three (3) calendar days after it has been deposited in the regular United States mail. Contractor shall complete the Services within the time limits set forth in the Scope of Services or as mutually determined in writing by the Parties.
B. When City determines that Contractor has satisfactorily completed the Services, City shall give Contractor written Notice of Final Acceptance. Upon receipt of such notice, Contractor shall not incur any further costs under this Agreement.
Contractor may request this determination of completion be made when, in its opinion, the Services have been satisfactorily completed. If so requested by the contractor, City shall make this determination within fourteen (14) days of its receipt of such request.
4. QUALIFICATIONS OF CONTRACTOR - STANDARD OF WORKMANSHIP.
Contractor represents and maintains that it has the necessary expertise in the professional calling necessary to perform services, and its duties and obligations, expressed and implied, contained herein, and City expressly relies upon Contractor's representations regarding its skills and knowledge. Contractor shall perform such services and duties in conformance to and consistent with the professional standards of a specialist in the same discipline in the State of California.
The plans, designs, specifications, estimates, calculations, reports and other documents furnished under Exhibit A shall be of a quality acceptable to City. The criteria for acceptance of the work provided under this Agreement shall be a product of neat appearance, well organized, that is technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by City for similar projects.
5. TERM OF AGREEMENT.
Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of this Agreement shall begin on the Effective Date of this Agreement and terminate three (3) years from the Effective Date.
MONITORING OF SERVICES.
City may monitor the Services performed under this Agreement to determine whether Contractor's operation conforms to City policy and to the terms of this Agreement. City may also monitor the Services to be performed to determine whether financial operations are conducted in accord with applicable City, county, state, and federal requirements. If Agreement for the Performance of Services/Nalco Company LLC Page 2 of 10 Rev. 06/22/17
any action of Contractor constitutes a breach, City may terminate this Agreement pursuant to the provisions described herein.
WARRANTY.
Contractor expressly warrants that all materials and services covered by this Agreement shall be fit for the purpose expressed in this Agreement, shall be free from defect for twelve (12) months following delivery, and shall contorm to the specifications, requirements, and instructions upon which this Agreement is based. Contractor agrees to promptly replace or correct any incomplete, inaccurate, or defective Services at no further cost to City when defects are due to the negligence, errors or omissions of Contractor. If Contractor fails to promptly correct or replace materials or services, City may make corrections or replace materials or services and charge Contractor for the cost incurred by City. Contractor's liability under this warranty is limited to replacement of nonconforming product, repair, or replacement of defective items, or, a refund of or invoice credit for the product price. The water treatment program does not cover, and Contractor makes no warranties with respect to, water system biohazards from waterborne pathogens, including but not limited to Legionella bacteria. Contractor shall not be liable for any failure caused by the City's failure to follow Contractor's written instructions. CONTRACTOR DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, AND DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Notwithstanding anything to the contrary contained herein or otherwise, in no event shall either party be liable for any special, consequential or indirect damages.
PERFORMANCE OF SERVICES.
Contractor shall perform all requested services in an efficient and expeditious manner and shall work closely with and be guided by City. Contractor shall be as fully responsible to City for the acts and omissions of its subcontractors, and of persons either directly or indirectly employed by them, as Contractor is for the acts and omissions of persons directly employed by it. Contractor will perform all Services in a safe manner and in accordance with all federal, state and local operation and safety regulations.
BUSINESS TAX LICENSE REQUIRED.
Contractor must comply with Santa Clara City Code section 3.40.060, as that section may be amended from time to time or renumbered, which requires that any person who transacts or carries on any business in the City of Santa Clara pay business license tax to the City. A business tax certificate may be obtained by completing the Business Tax Affidavit Form and paying the applicable fee at the Santa Clara City Hall Municipal Services Division.
10. RESPONSIBILITY OF CONTRACTOR.
Contractor shall be responsible for the professional quality, technical accuracy and coordination of the Services furnished by it under this Agreement. Neither City's review, acceptance, nor payments for any of the Services required under this Agreement shall be construed to operate as a waiver of any rights under this Agreement or of any cause of Agreement for the Performance of Services/Nalco Company LLC Page 3 of 10 Rev. 06/22/17
action arising out of the performance of this Agreement and Contractor shall be and remain liable to City in accordance with applicable law for all damages to City caused by Contractor negligent performance of any of the Services furnished under this Agreement.
Any acceptance by City of plans, specifications, construction contract documents, reports, diagrams, maps and other material prepared by Contractor shall not in any respect absolve Contractor from the responsibility Contractor has in accordance with customary standards of good professional practice in compliance with applicable federal, state, county, and/or municipal laws, ordinances, regulations, rules and orders.
11. COMPENSATION AND PAYMENT.
In consideration for Contractor's complete performance of Services, City shall pay Contractor for all materials provided and services rendered by Contractor at the rate per hour for labor and cost per unit for materials as outlined in Exhibit B, entitled "SCHEDULE OF FEES."
Contractor will bill City on a monthly basis for Services provided by Contractor during the preceding month, subject to verification by City. City will pay Contractor within thirty (30) days of City's receipt of invoice.
12. TERMINATION OF AGREEMENT.
Either Party may terminate this Agreement without cause by giving the other Party written notice ("Notice of Termination" which clearly expresses that Party's intent to terminate the Agreement. Notice of Termination shall become effective no less than thirty (30) calendar days after a Party receives such notice. After either Party terminates the Agreement, Contractor shall discontinue further services as of the effective date of termination, and City shall pay Contractor for all Services satisfactorily performed up to such date.
13. NO ASSIGNMENT OR SUBCONTRACTING OF AGREEMENT.
City and Contractor bind themselves, their successors and assigns to all covenants of this Agreement. This Agreement shall not be assigned or transferred without the prior written approval of City. Contractor shall not hire subcontractors without express written permission from City.
14. NO THIRD PARTY BENEFICIARY.
This Agreement shall not be construed to be an agreement for the benefit of any third party or parties and no third party or parties shall have any claim or right of action under this Agreement for any cause whatsoever.
15. INDEPENDENT CONTRACTOR.
Contractor and all person(s) employed by or contracted with Contractor to furnish labor and/or materials under this Agreement are independent contractors and do not act as agents) or employee(s) of City. Contractor has full rights, however, to manage its Agreement for the Performance of Services/Nalco Company LLC Page 4 of 10 Rev. 06/22/17
employees in their performance of Services under this Agreement. Contractor is not authorized to bind City to any contracts or other obligations.
16. NO PLEDGING OF CITY'S CREDIT.
Under no circumstances shall Contractor have the authority or power to pledge the credit of City or incur any obligation in the name of City. Contractor shall save and hold harmless the City, its City Council, its officers, employees, boards and commissions for expenses arising out of any unauthorized pledges of City's credit by Contractor under this Agreement.
17. CONFIDENTIALITY OF MATERIAL.
All ideas, memoranda, specifications, plans, manufacturing procedures, data, drawings, descriptions, documents, discussions or other information developed or received by or for Contractor and all other written information submitted to Contractor in connection with the performance of this Agreement shall be held confidential by Contractor and shall not, without the prior written consent of City, be used for any purposes other than the erformance of the Services nor be disclosed to an entity not connected with performanc of the Services. Nothing furnished to Contractor which is otherwise known to Contracto or becomes generally known to the related industry shall be deemed confidential.
18. USE OF CITY NAME OR EMBLEM.
Contractor shall not use City's name, insignia, or emblem, or distribute any information related to services under this Agreement in any magazine, trade paper, newspaper or other medium without express written consent of City.
19. OWNERSHIP OF MATERIAL.
All material, including information developed on computer(s), which shall include, but not be limited to, data, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports anc other material developed, collected, prepared or caused to be prepared under this Agreement shall be the property of City but Contractor may retain and use copies thereof.
City shall not be limited in any way or at any time in its use of said material. However, Contractor shall not be responsible for damages resulting from the use of said material for work other than Project, including, but not limited to, the release of this material to third parties. Notwithstanding anything to the contrary contained in this Agreement or otherwise, Contractor shall not transfer any ownership of rights in Contractor's intellectual property. Only ownership of work product created by Contractor exclusively for the City will transfer to the City for use at the site.
20. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR.
City, through its authorized employees, representatives or agents shall have the right during the term of this Agreement and for three (3) years from the date of final payment for goods or services provided under this Agreement, to audit the books and records of Contractor for the purpose of verifying any and all charges made by Contractor in Agreement for the Performance of Services/Nalco Company LLC Page 5 of 10 Rev. 06/22/17
connection with Contractor compensation under this Agreement, including termination of Contractor. Contractor agrees to maintain sufficient books and records in accordance with generally accepted accounting principles to establish the correctness of all charges submitted to City. Any expenses not so recorded shall be disallowed by City.
Contractor shall submit to City any and all reports concerning its performance under this Agreement that may be requested by City in writing. Contractor agrees to assist City in meeting City's reporting requirements to the State and other agencies with respect to Contractor's Services hereunder. Notwithstanding anything to the contrary contained herein or otherwise, in no event shall the City or its designated representative have the right to audit, inspect or duplicate any of Contractor's confidential or proprietary information that is not directly related to this Agreement. • 21. CORRECTION OF SERVICES.
Contractor agrees to correct any incomplete, inaccurate or defective Services at no further costs to City, when such defects are due to the negligence, errors or omissions of Contractor.
22. FAIR EMPLOYMENT.
Contractor shall not discriminate against any employee or applicant for employment because of race, color, creed, national origin, gender, sexual orientation, age, disability, religion, ethnic background, or marital status, in violation of state or federal law.
23. HOLD HARMLESS/INDEMNIFICATION.
To the extent permitted by law, Contractor agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents from and against any third party claim, injury, liability, loss, cost, and/or expense or damage, including all costs and reasonable attorney's fees in providing a defense to any claim arising therefrom, for personal injury, including death, or physical property damage and for which City shall become liable to the extent caused by Contractor's negligent, reckless or wrongful acts, errors, or omissions with respect to the Services performed by Contractor pursuant to this Agreement.
24. INSURANCE REQUIREMENTS.
During the term of this Agreement, and for any time period set forth in Exhibit C, Contractor shall provide and maintain in full force and effect, at no cost to City insurance policies with respect to employees and vehicles assigned to the Performance of Services under this Agreement with coverage amounts, required endorsements, certificates of insurance, and coverage verifications as defined in Exhibit C.
25. AMENDMENTS.
This Agreement may be amended only with the written consent of both Parties.
Agreement for the Performance of Services/Nalco Company LLC Page 6 of 10 Rev. 06/22/17
26. INTEGRATED DOCUMENT.
This Agreement represents the entire agreement between City and Contractor. No other • understanding, agreements, conversations, or otherwise, with any representative of City prior to execution of this Agreement shall affect or modify any of the terms or obligations of this Agreement. Any verbal agreement shall be considered unofficial information and is not binding upon City.
27. SEVERABILITY CLAUSE.
In case any one or more of the provisions in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other provisions, which shall remain in full force and effect.
28. WAIVER.
Contractor agrees that waiver by City of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement.
29. NOTICES.
All notices to the Parties shall, unless otherwise requested in writing, be sent to City •
addressed as follows:
City of Santa Clara
Attention: Electric Department
1500 Warburton Avenue
Santa Clara, California 95050
or by facsimile at (408) 261-2717
And to Contractor addressed as follows:
Nalco, Company, LLC
1601 W. Diehl Road
Naperville, Illinois 60563
or by facsimile at (630) 305-2906
If notice is sent via facsimile, a signed, hard copy of the material shall also be mailed.
The workday the facsimile was sent shall control the date notice was deemed given if there is a facsimile machine generated document on the date of transmission. A facsimile transmitted after 1:00 p.m. on a Friday shall be deemed to have been transmitted on the following Monday.
30. CAPTIONS.
The captions of the various sections, paragraphs and subparagraphs of this Agreement are for convenience only and shall not be considered or referred to in resolving questions of interpretation.
Agreement for the Performance of Services/Nalco Company LLC Page 7 of 10 Rev. 06/22/17
31. LAW GOVERNING CONTRACT AND VENUE.
This Agreement shall be governed and construed in accordance with the statutes and laws of the State of California. The venue of any suit filed by either Party shall be vested in the state courts of the County of Santa Clara, or if appropriate, in the United States District Court, Northern District of California, San Jose, California.
32. DISPUTE RESOLUTION.
A. Unless otherwise mutually agreed to by the Parties, any controversies between Contractor and City regarding the construction or application of this Agreement and claims arising out of this Agreement or its breach, shall be submitted to mediation within thirty (30) days of the written request of one Party after the service of that request on the other Party.
The Parties may agree on one mediator. If they cannot agree on one mediator, the Party demanding mediation shall request the Superior Court of Santa Clara County to appoint a mediator. The mediation meeting shall not exceed one day (eight (8) hours). The Parties may agree to extend the time allowed for mediation under this Agreement.
The costs of mediation shall be borne by the Parties equally.
D. For any contract dispute, mediation under this section is a condition precedent to filing an action in any court. In the event of mediation which arises out of any dispute related to this Agreement, the Parties shall each pay their respective attorney's fees, expert witness costs and cost of suit through mediation only. If mediation does not resolve the dispute, the Parties agree that the matter shall be litigated in a court of law, and not subject to the arbitration provisions of the Public Contracts Code.
33. COMPLIANCE WITH ETHICAL STANDARDS.
Contractor shall:
A. Read Exhibit D, entitled "ETHICAL STANDARDS FOR CONTRACTORS SEEKING TO ENTER INTO AN AGREEMENT WITH THE CITY OF SANTA • CLARA, CALIFORNIA"; and,
B. Execute Exhibit E, entitled "AFFIDAVIT OF COMPLIANCE WITH ETHICAL STANDARDS."
34. AFFORDABLE CARE ACT OBLIGATIONS
To the extent Contractor is obligated to provide health insurance coverage to its payments associated with Contractor's responsibilities under the Act.
Agreement for the Performance of Services/Nalco Company LLC Page 8 of 10 Rev. 06/22/17
35. CONFLICT OF INTERESTS.
This Agreement does not prevent either Party from entering into similar agreements with other parties. To prevent a conflict of interest, Contractor certifies that to the best of its knowledge, no City officer, employee or authorized representative has any financial interest in the business of Contractor and that no person associated with Contractor has any interest, direct or indirect, which could conflict with the faithful performance of this Agreement. Contractor is familiar with the provisions of California Government Code Section 87100 and following, and certifies that it does not know of any facts which would violate these code provisions. Contractor will advise City if a conflict arises.
36. PROGRESS SCHEDULE.
The Progress Schedule will be as set forth in the attached Exhibit F, entitled "MILESTONE SCHEDULE" if applicable.
(Continued on Page 10 of 10)
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Agreement for the Performance of Services/Nalco Company LLC Page 9 of 10 Rev. 06/22/17
Jun. 4. 2018 11:24AM city of santa clara No. 0300 P. 1
This Agreement may be executed in counterparta, each of which shall be deemed to be an ongmal, but both of which shall constitute one and the same instrumeut; and, the Parties agree that signatures on this Agreement, including those transmitted by facsimile, shull be sufficient to bind the Parties.
The Parties acknowledge and accept the terma and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives. The Effective Date is the date tbat the final signatory executes the Agreement. It is the intent of the Parties that this Agreement shall become operative on the Effective Date.
CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
APPROVED AS TO FORM:
Dact 81311152
Dienatizel
for BRIAN DOYLE DEANNA J. SANTANA
City Attorney City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Qu Telephone: (408) 615-2210
Fax: (408) 241-6771
JENNIFER YAMAGUM
Acting City Clerk
"CITY"
NALCO COMPANY LLC
a Delaware limited liability company
Date: 5-18-2018
By: Marke Kined
MARK KINERK
Tidle: Assiatant Vice President - Sales
Address: 1601 W. Dichl Road
Naperville, IL 60563
:
Telephone; 630-305-1000
Fax: 630-305-2906
"CONTRACTOR"
Agreement for the Performance of Sorvices/Nalco Company LLC Page 10 of 10 Rev. 06/22/17
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
NALCO COMPANY LLC
EXHIBIT A
SCOPE OF SERVICES
The Services to be performed for the City by the Contractor under this Agreement are more fully described as Specialty Chemical Products and Services for the water treatment systems at the Donald Von Raesfeld Power Plant.
On-Going Service Responsibilities
• Develop and Manage Operator Logsheets and Electronic Database for Wet Chemistry Data Management.
• Develop and Maintain a Program Administration Manual and Test Procedures Manual Help DVR Operators to setup and maintain an on-site Water Testing Lab.
Emergency Response to Plant Problems and Questions 24 hrs/day, 7 days per week.
• Annual Operator Training to cover Water Treatment Philosophy, Best Practices, Chemical Safety, and Troubleshooting.
: Equipment inspections during plant mainienance outages.
Annual Business Reviews.
Bi-Weekly Service Visits
Review chemistry trends from PI system.
Inventory treatment chemicals.
• Attend Operations meetings as needed.
• Help Operations to find and implement cost saving projects. • Document findings and recommendations in a written service report to be distributed via email. Reports will be issued within 48 hours of the visit.
Agreement with Nalco Company LLC/Scope of Services/Exhibit A Page 1 of 2 Rev. 06/22/17
Offsite Analytical Services
Nalco will be providing the following testing services at no additional charge for the duration of the contract.
• Quarterly Legionella Testing for Cooling Tower.
A complete Cation, Anion Mineral Analysis of the Reclaimed Water at least twice per year.
• Mineral Analysis, Particle Analysis and/or Bacteria Analysis for On-going Troubleshooting.
• Deposit Analysis from Boiler and/or Cooling Tower deposits removed during inspections.
Agreement with Nalco Company LLC/Scope of Services/Exhibit A Page 2 of 2 Rev. 06/22/17
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
NALCO COMPANY LLC
EXHIBITE
FEE SCHEDULE
In no event shall the amount billed to City by Contractor for services under this Agreement exceed four hundred twenty-nine thousand seven hundred eighty-five dollars and forty five cents ($429,785.45), subject to budget appropriations.
Transportation and Energy fees estimated at $1,000.00 per year.
Pricing will not exceed 5% per year if necessary for years two (2) and three (3).
In addition to any periodic price adjustment provided for in this Agreement, Nalco Water may increase the prices for the Products or Services if, at any time during the term of this Agreement, an Extraordinary Inflationary Disruption occurs. Extraordinary Inflationary Disruption is defined as an increase in raw materials, freight, labor, or energy costs beyond the control of Nalco of at least seven (7%) percent and sustained over a three month period. In case of such an Extraordinary Inflationary Disruption, Nalco Water may increase the price of the Products up to the full amount of the increase in its costs (raw materials, freight, labor or energy) by giving Customer at least thirty (30) days written notice. The baseline for determining such increase shall be on an individual product basis. If Nalco Water's costs decline back to a baseline level, Nalco Water is allowed to maintain product prices at the elevated level for the same period of time Nalco Water previously maintained pricing prior to the hardship price increase.
Nalco Company LLC has determined that its Water Chemical Applications, pricing and products are considered confidential information which are pages 2 and 3 attached to Exhibit B.
Agreement with Nalco Company LLC Fee Schedule/Exhibit B Page I of 3 Rev. 06/22117
AGREEMENT FOR THE PERFORMACE OF SERVICES
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
NALCO COMPANY LIC
EXHIBIT B
FEE SCHEDULE
Pages 2 and 3 of the Fee Schedule are considered Confidential.
Agreement with Nalco Company LLC Fee Schedule/Exhibit B Rev. 06/22/17
This Page Contains Confidential Information (Not for Public Distribution) Attachment A. Silicon Valley Power DVR Plant Nalco Water Chemical Applications Application Basis for Calculating Annual Nalco Product Estimated Application Description Basetank/Chem Recommended Operator Testing Quantity per Point Quantity Name Dellvary Method % Active Unit. Price Containar or Gallons Number of Estimated Total Storage Size Dosage (ppm) Method Lbsiyr
Dolivary Per Year Containers per Cost par Year
Year
HRSE 162 Basetank Provided by
HP Drum. Mini-buik Transfer
Corrosion inhibitor to Basetank 0.4 ppm Ortho Phosphate 2.99 55 xalions 430.55
8к і 129.1) кра
Basstank Provided by| Mini-bulk Transfer
Cooline Tower ¡Mineral Dispersan: Annual Ave BD rate of 91 Rpm 30T1ZO Suppler to Baserank 30%I 25 pem Nako Active Polymer S 2.06 200 gallons 20917 1054) 5.3 $ 43,069.28 Basetank Provided by Minl-bulk Transfer
i Corrosion Inhibitor Annual Ave BD rate of 91 gpm. 3DT 179 Supplier to Basetank 30% 20 pem Total Phosphate 2.19|200 pallons 15734 763 36,646.72
3.8 S
Antifoam Annual Ave BD rote of 91 pm 7105 Plus 55-gaflon Drum Drop Off Delivery As needed Vieval - Subjective 2.35 55 kalions 8271 10 $ 1,968.21 Dosed Twica Per Year During
Blo-Dispersant Tower CleaninR.. 73550 5-gallon Pall Dros Off Delivery
2.5 per dose N/A 4.D9 5 gallane
Basctank Provided by Mini-bulk Transfer
Ultrafilter lEtter Aid Annual Ave Flow Rate 190 zom 1 B131 Supplier to Basetank 50%I S. 138 200 gallons 27 s 8 ppm RO Feed SDi 13975 5A5l 19,286.01
Low DH Cleaner 4.155 gallons
Basetank Provided by! Mini-buik Transier
nO System Mineral Dispersant Annual Ave Flow Rate 170 gpm PC-191T Supplier to Basetank. 36% 4 ppm Naico TRASAR Test 1.85. 200 gallons 6252 11,528.98 No Test Availsble, Use
RO Membrane
Basctank Provided by Mini-bulk Transfer 80 ppm ior 3 Fouling to determine Non-Oxidizing Bigside Annual Ave Flow Rate 170 pm.
Suppler to Basetank 20% Hours weak success 1.34 55 gallons 20's 2 OMine Cleanings per year 1st 9,564.26
Hish pH Cleaner Poss 15 gallons per
5-pallon Pail Drop Off Dellvery cleaning betch 3.615 gallons 535. 20 5 1,933.26 Low sH Cleaner Sen sakening per ye 15 gallons per
5-pailon Pall Drop Off Delivery $ 2.86 5 pallons 310l 4.015 887.39 Total Annual Expected Chemical Cost $ 126,380
Total Annual Fixed Service Fee ($750/month) 9,000
Total Cost of Naico Portafeed Basetank installation
Total Annual Cost of 3DTRASAR Cooling Water Automation Equipment Offsite Analytical Testing (Legionella, Mineral Analysis, Particle Analysis) Total Annual Cost $ 135,380
Information listed in the chart above contains Confidential Information Regarding Nalco's Products. It is not for Public Distribution.
Nalco Water an Ecolab Company 1601 W. Diehl Rd. Naperville, IL 60563 www.nalco.com Exhibit B
Annual Price Adjustment Formula
To ensure chemical costs at DVR are controlled and Nalco is fairly compensated during the remainder of the contract period, we propose the API index detailed below to determine pricing going forward. This price adjustment will be evaluated annually and become effective on the anniversary of the contact inception. The basis of this formula is that we will only request a price increase if our own internal costs have increased over time.
Alliance Price Index (API): Nalco developed this index for use in longer-term agreements as a standardized method of adjusting chemical pricing. This API is a blend of nationally published pricing indices that reflects Nalco's cost of manufacturing and servicing our chemical products.
Chemical fees will be adjusted annually based on economic and industrial price statistics obtained from the Bureau of Labor Statistics using the "Index Price Adjustment Formula" below. Nalco will proved thirty (30) days written notice of such adjustment. Pricing adjustments will only apply to future purchase orders, and implementing any pricing adjustment.
The Current Index Value of each index is the average value of the index for the most recent 12 months (for which data is published) preceding each price adjustment date.
Prices will be adjusted using the blend of 5 published indices below:
Sales Engineer Median Hourly Salary (SOC419031)
• PPİ Industrial Chemicals & Allied Products (WPU061)
• Surface Active Agents (WPU067905)
• Alkalies and Chlorine (WPU061303)
• Chemical Manufacturing (PCU325)
The website to access the indices is http://data.bls.gov/cgi-bin/srgate. Any changes to the data source or indices shall be agree upon by both parties.
%Price Adjustinent = (40% x %Change in Service) + (60% x %Change in Product) Where %Service Change and %Product Change are defined as:
%Change in Service = %Change in Sales Engineer Median Hourly Salary (SOC 419031) %Change in Product = Sum of...
12% x % Change in Chemical & Allied Industrial Chemicals (WPU061) 9% x % Change in Surface Active Agents (WPU067905)
6% x % Change in Alkalies and Chlorine (WPU061303)
• 33% x % Change in Chemical Manufacturing (PCU325)
Price changes will be implemented on the anniversary of euch year of the contract. The baseline period will be Sept 2016 thru Aug 2017, which is when initial pricing was established above.
Hardships:
In the event an individual product or raw material has a significant increase in cost, Nalco Water may increase the prices for the specific Products or Services if, at any time during the term of this Agreement, an Extraordinary Inflationary Disruption occurs. Extraordinary Inflationary Disruption is defined as an increase in raw materials, freight, labor, or energy costs beyond the control of Nalco of at least seven (7%) percent and sustained over a three-month period. In case of such an Extraordinary Inflationary Disruption, Nalco Water may increase the price of the Products up to the full amount of the increase in its costs (raw materials, freight, labor or energy) by giving Customer at least thirty (30) days written notice. The baseline for determining such increase shall be on an individual product basis. If Nalco Water's costs decline back to a baseline level, Nalco Water is allowed to maintain product prices at the elevated level for the same period of time Nalco Water previously maintained pricing prior to the hardship price increase. Full disclosure of the product cost information will be shared with Silicon Valley Power prior to any Hardship adjustment and Nalco will work in good faith to find cost effective alternatives in place of the adjustment.
Nalco Water an Ecolab Company 1601 W, Diehl Rd. Naperville, IL 60563 www.nalco.com Exhibit B
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
NALCO COMPANY LLC
EXHIBIT C
INSURANCE COVERAGE REQUIREMENTS
Without limiting or expanding the Contractor's indemnification of the City, and prior to commencing any of the Services required under this Agreement, the Contractor shall provide anc maintain in full force and effect, at its sole cost and expense, the following insurance policies with at least the indicated coverages, provisions and endorsements:
A. COMMERCIAL GENERAL LIABILITY INSURANCE
1. Commercial General Liability Insurance policy. Policy limits are subject to review, but shall in no event be less than, the following:
$2,000,000 Each Occurrence
$3,000,000 General Aggregate
$3,000,000 Products/Completed Operations Aggregate
$2,000,000 Personal Injury
2. Exact structure and layering of the coverage shall be left to the discretion of Contractor; however, any excess or umbrella policies used to meet the required limits shall be at least as broad as the underlying coverage and shall otherwise follow form.
The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Contractor to comply with the insurance requirements of this Agreement:
a. There shall be no cross liability exclusion which precludes coverage for claims or suits by one insured against another; and
b. Coverage shall apply separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.
B. BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as broad as ISO form CA 00 01 with policy limits a minimum limit of not less than one million dollars ($1,000,000) each accident using, or providing coverage at least as broad as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned, non-owned and hired autos.
Agreement with Nalco Company LLC/Insurance Requirements/Exhibit C Page 1 of 4 Rev. 06/22/17
In the event that the Work being performed under this Agreement involves transporting of hazardous or regulated substances, hazardous or regulated wastes and/or hazardous or regulated materials, Contractor and/or its subcontractors involved in such activities shall provide coverage with a limit of two million dollars ($2,000,000) per accident covering transportation of such materials by the addition to the Business Auto Coverage Policy of Environmental Impairment Endorsement MCS90 or Insurance Services Office endorsement form CA 99 48, which amends the pollution exclusion in the standard Business Automobile Policy to cover pollutants that are in or upon, being transported or towed by, being loaded onto, or being unloaded from a covered auto.
C. WORKERS' COMPENSATION
1. Workers' Compensation Insurance Policy as required by statute and employer's liability with limits of at least one million dollars ($1,000,000) policy limit Bodily Injury by disease, one million dollars ($1,000,000) each accident/Bodily Injury and one million dollars ($1,000,000) each employee Bodily Injury by disease.
2. The indemnification and hold harmless obligations of Contractor included in this Agreement shall not be limited in any way by any limitation on the amount or type of damage, compensation or benefit payable by or for Contractor or any subcontractor under any Workers' Compensation Act(s), Disability Benefits Acts) or other employee benefits acts).
This policy must include a Waiver of Subrogation in favor of the City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents, except to the extent of City's negligence.
D. COMPLIANCE WITH REQUIREMENTS
All of the following clauses and/or endorsements, or similar provisions, must be part of each commercial general liability policy, and each umbrella or excess policy.
Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds to the extent of Contractor's indemnification obligations in respect to liability arising out of Contractor's work for City.
Primary and non-contributing. Each insurance policy provided by Contractor shall contain language or be endorsed to contain wording making it, to the extent of Contractor's indemnification obligations, primary insurance as respects to, and ot requiring contribution from, any other insurance which the Indemnities ma ossess, including any self-insurance or self-insured retention they may have. An other insurance Indemnities may possess shall be considered excess insurance only and shall not be called upon to contribute with Contractor's insurance.
Cancellation.
Agreement with Nalco Company LL.C/Insurance Requirements/Exhibit C Page 2 of 4 Rev. 06/22/17
a. Each insurance policy shall contain language or be endorsed to reflect that no cancellation of the coverage provided due to non-payment of premiums shall be effective until written notice has been given to City at least ten (10) days prior to the effective date of such cancellation. b. Each insurance policy shall contain language or be endorsed to reflect that no cancellation of the coverage provided for any cause save and except non-payment of premiums shall be effective until written notice has been given to City at least thirty (30) days prior to the effective date of such cancellation.
Other Endorsements. Other endorsements may be required for policies other than the commercial general liability policy if specitied in the description of required insurance set forth in Sections A through D of this Exhibit C, above.
E. ADDITIONAL INSURANCE RELATED PROVISIONS
Contractor and City agree as follows:
1. Contractor agrees to ensure that subcontractors, and any other party involved with the Services who is brought onto or involved in the performance of the Services by Contractor, provide the same minimum insurance coverage required of Contractor, except as with respect to limits. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Agreement.
Contractor agrees that upon request by City, all agreements with, and insurance compliance documents provided by, such subcontractors and others engaged in the project will be submitted to City for review.
2. Contractor agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Contractor for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.
3. The City reserves the right to withhold payments from the Contractor in the event of material noncompliance, for example insurance has expired or lapsed, with the insurance requirements set forth in this Agreement.
F. EVIDENCE OF COVERAGE
Prior to commencement of any Services under this Agreement, Contractor, and each and every subcontractor (of every tier) shall, at its sole cost and expense, provide and maintain not less than the minimum insurance coverage with the endorsements and deductibles indicated in this Agreement. Contractor shall file with the City all certificates and endorsements for the required insurance policies for City.
Agreement with Nalco Company LLC/Insurance Requirements/Exhibit C Page 3 of 4 Rev. 06/22/17
G. EVIDENCE OF COMPLIANCE
Contractor or its insurance broker shall provide the required proof of insurance compliance, consisting of Insurance Services Office (ISO) endorsement forms or their equivalent and the ACORD form 25-S certificate of insurance (or its equivalent), evidencing all required coverage shall be delivered to City, or its representative as set forth below, at or prior to execution of this Agreement. Upon City's request, Contractor shall submit to City copies of the applicable endorsements and related policy language.
Unless otherwise required by the terms of this Agreement, all certificates, endorsements, coverage verifications and other items required to be delivered to City pursuant to this . Agreement shall be mailed to:
EBIX Inc.
City of Santa Clara Electric Department
P.O. Box 100085 - S2 or 1 Ebix Way
Duluth, GA 30096 John's Creek, GA 30097
Telephone number: 951-766-2280
Fax number: 770-325-0409
Email address: [email protected]
H. QUALIFYING INSURERS
All of the insurance companies providing insurance for Contractor shall have, and provide written proof of, an A. M. Best rating of at least A minus 6 (A- VI) or shall be an insurance company of equal financial stability that is approved by the City or its insurance compliance representatives.
Agreement with Nalco Company LLC/Insurance Requirements/Exhibit C Page 4 of 4 Rev. 06/22/17
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
NAL CO COMPANY LLC
EXHIBIT D
ETHICAL STANDARDS FOR CONTRACTORS SEEKING TO ENTER INTO AN
AGREEMENT WITH THE CITY OF SANTA CLARA, CALIFORNIA
Termination of Agreement for Certain Acts.
A. The City may, at its sole discretion, terminate this Agreement in the event any one or. more of the following occurs:
If a Contractor' does any of the following:
a. Is convicted? of operating a business in violation of any Federal, State or local law or regulation;
b. Is convicted of a crime punishable as a felony involving dishonesty; c. Is convicted of an offense involving dishonesty or is convicted of fraud or a criminal offense in connection with: (1) obtaining; (2) attempting to obtain; or, (3) performing a public contract or subcontract; Is convicted of any offense which indicates a lack of business integrity or business honesty which seriously and directly affects the present responsibility of a City contractor or subcontractor; and/or, e. Made (or makes) any false statements) or representation(s) with respect to this Agreement.
For purposes of this Agreement, the word "Consultant" (whether a person or a legal entity) also refers to "Contractor" and means any of the following: an owner or co-owner of a sole proprietorship; a person who controls or who has the power to control a business entity; a general partner of a partnership; a principal in a joint venture; or a primary corporate stockholder [i:e., a person who owns more than ten percent (10%) of the outstanding stock of a corporation] and who is active in the day to day operations of that corporation.
For purposes of this Agreement, the words "convicted" or "conviction" mean a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes a conviction entered upon a plea of nolo contendere within the past five (5) years.
As used herein, "dishonesty" includes, but is not limited to, embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, failure to pay tax obligations, receiving stolen property, collusion or conspiracy.
Agreement with Nalco Company LLC Ethical Standards for Contractors/Exhibit D Page 1 of 2 Rev. 06/22/17
If fraudulent, criminal or other seriously improper conduct of any officer, director, shareholder, partner, employee or other individual associated with the Contractor can be imputed to the Contractor when the conduct occurred in connection with the individual's performance of duties for or on behalf of the Contractor, with the Contractor's knowledge, approval or acquiescence, the Contractor's acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval or acquiescence.
B. The City may also terminate this Agreement in the event any one or more of the following occurs:
The City determines that Contractor no longer has the financial capability or business experience to perform the terms of, or operate under, this Agreement; OT,
2. If City determines that the Contractor fails to submit information, or submits false information, which is required to perform or be awarded a contract with City, including, but not limited to, Contractor's failure to maintain a required State issued license, failure to obtain a City business license (if applicable) or failure to provide and maintain bonds and/or insurance policies required under this Agreement.
C. In the event a prospective Contractor (or bidder) is ruled ineligible (debarred) to participate in a contract award process or a contract is terminated pursuant to these provisions, Contractor may appeal the City's action to the City Council by filing a written request with the City Clerk within ten (10) days of the notice given by City to have the matter heard. The matter will be heard within thirty (30) days of the filing of the appeal request with the City Clerk. The Contractor will have the burden of proof on the appeal.
The Contractor shall have the opportunity to present evidence, both oral and documentary, and argument.
Contractor becomes insolvent, transfers assets in fraud of creditors, makes an assignment for the benefit of creditors, files a petition under any section or chapter of the federal Bankruptcy Code (11 U.S.C.), as amended, or under any similar law or statute of the United States or any state thereof, is adjudged bankrupt or insolvent in proceedings under sucia lavs, or a receiver or triste is appointed for all or substantially all of the assets of Loss of personnel deemed essential by the City for the successful performance of the obligations of the Contractor to the City.
Agreement with Nalco Company LLC Ethical Standards for Contractors/Exhibit D Page 2 of 2 Rev. 06/22/17
Jun. 4. 2018 11:24AM- city of santa clara No. 0300 P. 2 •
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
NALCO COMPANY LIC
EXHIBIT E
AFFIDAVIT OF COMPLIANCE WITH ETHICAL STANDARDS
appropriate inquiry of those individuals potentially included within the definition of "Contractor" contained in Ethical Standards at footnote 1.
Based on my review of the appropriate documents and my good-faith review of the necessary inquiry responses, I hereby state that noither the business entity nor any individuals) bolonging • to said "Contractor" category [i.o., owner or co-owner of a sole proprietorship, general partner, person who controla or has power to control a business entity, etc.] has been convicted of any one or more of the crimes identified in the Ethical Standarde within the past five (5) years.
The above assortions are true and correct and are made under penalty of perjury under the laws of the State of California. !
NALCO COMPANY LLC
a Delaware limited liability company
By: Mark :
Signature of Authorized Person or Representative
Name:_MARK KINBRK
:
Title:_Assistant Vice Presideut - Sales
NOTARY'S ACKNOWLEDGMENT TO BE ATTACHED
Please execute the affidavit and allich a notary public's ackrowledgment of execution of the affidavit by the Agreement with Nalco Company LLC/Affidavit of Compliance/Exhibit B Page l of 1 Rev. 06/22/17
State of Illinois
County of DuPage
18th
The foregoing instrument was acknowledged before me this _ _day of May, 2018, by Mark Kinerk who is personally known to me.
Signed and Sworn before me
Saia Palme.
Notary Public / Dated
OFFICIAL SEAL
LIANA PODMAN
NOTARY PUBLIC - STATE OF ILLINOIS
MY COMRASSION EXPIRES. 11/67:21
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
NALCO COMPANY LLC
EXHIBIT F
MILESTONE SCHEDULE
(Not Applicable)
Agreement with Nalco Company LI.C/Milestone Schedule/Exhibit F Page 1 of 1 Rev. 06/22/17