1500 Warburton Avenue
-Gity of Santa Clara Santa Clara, CA 95050
A PROVED santaclaraca.gov
@SantaClaraCity
1852 Lilf Council
THE MISSION CIT Agenda Report
8/25/18
Cito
18-1080 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 Cogeneration Facility (CoGen)
BACKGROUND
In order to maximize the asset life of the Cogeneration Facility (CoGen), it is necessary to have in place a proper water treatment chemical program. Since 2005, Nalco Company, LLC (Nalco) has been providing chemical products and equipment to optimize the use of the chemicals while meeting or exceeding expectations for equipment corrosion and scale build-up.
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 (3) qualified proposals. Staff reviewed each proposal to determine overall best value including cost and experience with specific treatment requirements at SVP facilities reducing the risk of damage to equipment and additional maintenance costs due to corrosion and scale build-up Nalco was selected as the provider based on the criteria, value, and expertise.
Staff proposes entering into a three (3) year agreement with Nalco Company, LLC to ensure water treatment stays in line with appropriate technical and regulatory specifications. This water treatment program provides program development, program maintenance through bi-weekly service visits, SVP employee training, and semi-annual equipment and machinery inspections.
ENVIRONMENTAL REVIEW
The action being considered does not constitute a "project" within the meaning of the California Environmental Quality Act ("CEQA") pursuant to CEQA 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 shall not exceed $54,645 for the first year for a total not-to-exceed amount of $163,933 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.
PUBLIC CONTACT
City of Santa Clara Page 1 of 2 Printed on 8/20/2018
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18-1080 Agenda Date: 8/28/2018
Public contact was made by posting the Council agenda on the City's official-notice bulletin board outside City Hall 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 $163,933 over a three (3) year term.
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 Printed on 8/20/2018
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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 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 be provided by Contractor and will notify Contractor in writing of City's choice. Ci all pay for all such materials and services provided which are consistent with the tern of this Agreement.
2. SERVICES TO BE PROVIDED.
Except as specified in this Agreement, Contractor shall furnish all technical and professional services, including labor, material, equipment, transportation, supervision adily fry lectively over rick and Spense. or ice of at pity ded to i the work 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.
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.
6. 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.
7. 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 conform 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 detects 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.
8. 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.
9. 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 'ustomary standards of good professional practice in compliance with applicable federal tate, 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 performance of the Services nor be disclosed to an entity not connected with performance of the Services. Nothing furnished to Contractor which is otherwise known to Contractor 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 computers), which shall include, but not be limited to, data, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports and 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 contraty 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. 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 arising from 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 waivers) 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:
Naico 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.
B. 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.
C. 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. I 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 employees pursuant to the Affordable Care Act ("Act") and/or any other similar federal or state law, Contractor warrants that it is meeting its obligations under the Act and will fully indemnify and hold harmless City for any penalties, fines, adverse rulings, or tax payments associated with Contractor's responsibilities under the Act.
Agreement for the Performance of Services/Nalco Company LL.C 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 11:26AM city of santa clara No. 0301 P. 2
This Agreement may be executed in counterparts, each of which shall be deemed to be en haginal, bute on of which shant institute one and the same net unit; and, the Paties agree ent including those transmitted by facsimile, shall be sufficient to bind the Parties.
The Parties acknowledge and accept the terns and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives. The Effective Date is the date that the final signatory executes the Agreement. It is the intent of the Parties that this Agreement
CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
APPROVED AS TO FORM:
Dated: 3/31/18
BRIAN DOYLE p DRANNA J. SANTANA
City Attorney City Manager
1500 Warburton Avenue
ATTEST: Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
ENNIFE MAQUMA
Acting City Clerk
"CITY"
NALCO COMPANY LLC
• Delaware limited liability company
Date: 5-18-2018
By: Marke Kanch 18
MARK KINERK
Title: Assistant 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 Services/Nalco Company XLC 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 On-Going Service Responsibilities
• Develop and Manage Operator Log sheets 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 maintenance 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.
Offsite Analytical Services
Nalco will be providing the following testing services at no additional charge for the duration of the contract.
• Mineral Analysis, Particle Analysis and/or Bacteria Analysis for On-going Troubleshooting.
• Deposit Analysis from Boiler deposits removed during inspections.
Agreement with Nalco Company LLC/Scope of Services/Exhibit A Page 1 of 1 Rev. 06/22/17
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
NALCO COMPANYLLC
EXHIBITB
FEE SCHEDULE
In no event shall the amount billed to City by Contractor for services under this Agreement exceed one hundred sixty-three thousand nine hundred thirty-two dollars and fifty-six cents ($163,932.56), subject to budget appropriations.
Transportation and Energy fees estimated at $500.00 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 LIC/Fee Schedulef/Exhibit B Page I of 3 Rev. 06/22/17
AGREEMENT FOR THE PERFORMACE OF SERVICES
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
NALCO COMPANY LLC
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) Appendix A. City of Santa Clara Cogen Chemical Applications Application Point Application Basis for Calculating Annual Product Baserank/Chem Quantity per Estimated Description Delivery Mathod %Active Recommended Oparator Testing Galons per Number of Quantity Storage Size Dosage (ppm) Method Unit Price Container or Estimated Total Delivery Year Contalners per Cost per Year
Year
Average BTW Flow Rate of 82
gpm (6 cycles of concentration
and 0.5 pm Hardness on 22330 Basetank Provided Mini-bulk Transfer Nalco TRASAR Kand- HRSG #1 and #2 Scale Inhibitor averaRe) by Supplier to Basetank 12 ppm held Test
1.75/200 pollons 13355 1345 5.7 S 23,371.96
Let rid of one retion,
25 pem Sulfite Residuai in Baserank Provided Mini-bulk Transfer Suite Residuel - Oxygen Scavenger Boilers) 1720 by Supplter to Bosetank 25% 20 ppm Titration $ 1.23/200 gallons 22259 2146 10.7 s 25,252.68
Total Annual Chernical Cost $ 48,525
Annual Service Fee ($250/month) 3,000
Total Annual Cost $ 51,525
Information listed in tie chart above contains Confidential Information Regarding Nalco's Products: It is not for Public Distribution. • Naico 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 Cogen 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 (APD. 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 frot the Burcaun 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 mostrecent 12 inonths (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)
• PPI Industrial Chemicals & Allied Products (WPU061)
Surface Active Agents (WPU067905)
Alkalies and Chlorine (WPU061303)
Chemical Manufacturing (PCU325)
The website to access the indices is litp://data.bls.gov/cgi-bin/srgale. Any changes to the data source or indices shall be agree upon by both parties.
%Price Adjustment = (40% x %Change in Service) + (60% × %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 each 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 nay 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 Naico 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, Naico 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 and 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 poliutants 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 Acts), 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 subject to the indemnification provisions.
Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds Primary and non-contributing. Each insurance policy provided by Contractor shall ontain language or be endorsed to contain wording making it primary insuranc s respects to, and not requiring contribution from, any other insurance which th Indemnities may possess, including any self-insurance or self-insured retention they may have. Any other insurance Indemnities may possess shall be considered excess insurance only and shall not be called upon to contribute with Contractor's insurance.
Cancellation.
a. Each insurance policy shall contain language or be endorsed to reflect that no cancellation of the coverage provided due to non-payment of Agreement with Nalco Company LL/nsurance Requirements/Exhibit C Page 2 of 4 Rev. 06/22/17
premiums shall be effective until written notice has been given to City at least ten (10) days prior to the effective date of such modification. 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 modification.
4. Other Endorsements. Other endorsements may be required for policies other than the commercial general liability policy if specified 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.
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.
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's.
Agreement with Nalco Company LL/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 Ottice (SO) endorsement torms 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 actual insurance policies or renewals or replacements. 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 LL/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
NALCO 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;
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 LL.C/Ethical Standards for Contractors/Exhibit D Page 1 of 2 Rev. 06/22/17
2. 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:
1. The City determines that Contractor no longer has the financial capability* or business experience to perform the terms of, or operate under, this Agreement; or,
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 ot 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 such laws, or a receiver or trustee 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 11:26AM city of santa clara No. 0301 P. 1
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
NALCO COMPANY LLC
EXHIBIT E
AFFIDAVIT OF COMPLIANCE WITH ETHICAL STANDARDS
hereby state that I have read and understand the language, entitled "Ethical Standards" set forth in Exhibit D. I have the authority to make those representations on my own behalf or on behalf of the legal eatity identified herein. I have examined appropriate business records, and I have made 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 neither the business entity nor any individual s) belonging to said "Contractor" category [i.e., owner or co-owner of a sole proprietorahip, general partner, person who controls or has power to control a business entity, etc.] has been convicted of any one or more of the crimes identified in the Ethical Standards 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 Califomia.
NALCO COMPANY LLC
a Delaware limited liability company
By: Mack Kinat
Signature of Authorized Person or Representative
:
Name:MARK KINERK
Title: Assistant Vice President - Sales
NOTARY'S ACKNOWLEDGMENT TO HE ATTACHED
!
:
Agreement with Nalco Coropany LL C/Affidavit of Compliance/Exhibit B Fago 1 of1 Rev. 06/22/17
18 State of Illinois
County of DuPage
The foregoing instrument was acknowledged before me this 18*7 _ day of May, 2018, by Mark Kinerk who is personally known to me.
Signed and Sworn before me
Tara fadno
Notary Public / Dated
OFFICIAL SEAL
LIANA PODMAN
NOTARY PUBLIC - STATE OF ILLINOIS
MY COMMISSION EXPIRES: 11/07/21
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 LIC/Milestone Schedule/Exhibit F Page 1 of 1 Rev. 06/22/17