MEMORANDUM TO: MAYOR AND CITY COMMISSION Commission/Agendas/2019/08-05-19/VIII-C-1...Aug 05, 2019...

VIII-C-1 AUGUST 5, 2019

MEMORANDUM

TO: MAYOR AND CITY COMMISSION

FROM: CITY ATTORNEY'S OFFICE

DATE: August 5, 2019

RE: Agreement with Vogt Power International, Inc. for Replacement of the HRSG Low Pressure Tube Bundle at McIntosh Unit 5

Attached hereto for your consideration is a proposed design, fabrication and installation Agreement with Vogt Power International, Inc. (Vogt) for replacement of the Heat Recovery Steam Generator (HRSG) Low Pressure Tube Bundle at McIntosh Unit 5. The HRSG at Unit 5 is a boiler which transfers heat generated by the Combustion Turbine to steam in a series of tube “bundles”. This super-heated steam drives the Steam Turbine which generates the energy in Unit 5. There are three (3) heat transfer stages, in the HRSG: High Pressure (HP), Intermediate Pressure (IP), and Low Pressure (LP). The relatively cool conditions in the LP section leads to a number of corrosive processes, both inside the boiler tubes and outside. Historically, when HRSG tube bundles begin to experience failures, they occur in the LP section. Industry wide, HRSG’s usually have complete bundle replacements performed as they approach the age of 15 to 20 years. Unit 5’s HRSG is 17 years old and has performed well. However, the anticipated end-of-life failures have begun. The benefits of replacing this LP bundle include improved unit efficiency, fuel savings and reduced forced outages.

Accordingly, on April 1, 2019, the City’s Purchasing Department issued Invitation to Bid No. 9151 seeking qualified and experienced contractors to design, fabricate and install replacement tubes for the low-pressure section of the HRSG at McIntosh Unit 5. A total of three (3) firms responded to the ITB.

Supplier Location Total Bid Vogt Power International, Inc. Louisville, KY $4,250,000 Nooter/Eriksen Company Fenton, MO $5,184,620 Day and Zimmerman Construction Co. Lancaster, PA $6,017,995

Upon evaluation by staff, Vogt was selected as the most responsive, responsible

bidder with the lowest price. Upon approval by the City Commission, work will take place during Unit 5’s Fall 2020 outage scheduled for October 10, 2020 through November 2, 2020. All services provided by Vogt will be performed in accordance with the attached Terms and Conditions, the City’s Bid Specifications and Vogt’s proposal V69480 Rev. 1

dated June 14, 2019. The total cost of the work is $4,250,000 and is included in Lakeland Electric’s FY2020 budget.

It is recommended that the appropriate City officials be authorized to execute this design, fabrication and installation Agreement with Vogt for replacement of the HRSG Low Pressure Tube Bundle at McIntosh Unit 5.

attachment

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Vogt Power International Inc. TERMS AND CONDITIONS HRSG LOW PRESSURE BUNDLE REPLACEMENTS PROJECT

UNIT NO. 5 AT MCINTOSH POWER PLANT

This Agreement regarding terms and conditions applicable to the HRSG Low Pressure Bundle Replacements project (hereinafter “Project”) at Unit No. 5 of the McIntosh Power Plant (hereinafter “Agreement”) is made and entered into on August 5, 2019 (the “Effective Date”) by and between the City of Lakeland, Florida (“Purchaser”) and Vogt Power International, Inc., a Delaware corporation (“Company”). Purchaser and Company are sometimes individually referred to herein as a “Party” and collectively referred to herein as the “Parties”.

1.0 GENERAL

1.1 Company shall perform, and the Purchaser agrees to purchase, the proposed work ("Work") in strict accordance with the terms and conditions contained herein.

1.2 The Company's Proposal including drawings is the property of the Company. It contains

confidential information and is loaned to the Purchaser only for the Purchaser's evaluation of it. Any other use or copying is strictly prohibited. All drawings will be returned upon Company's request.

1.3 The Company may employ such labor as Purchaser may specify provided such labor is

satisfactory to the Company. 1.4 The Company shall furnish all special tools, scaffolding, blocking, rigging or other

equipment required for erecting, repairing or installing Company's equipment and materials.

1.5 Unless otherwise stated, the Company shall not supervise nor furnish labor, chemicals,

fuels, etc. for drying out, boiling out or chemically cleaning the equipment. 1.6 If the Company is required for any cause whatsoever, to provide standby labor for any

pre-operational or post-operational procedures, the Purchaser shall pay the Company for all costs resulting therefrom plus overhead and reasonable profit.

1.7 Should subsurface or latent physical conditions at the site be encountered which are at

variance with the conditions indicated by the contract documents, or should unknown physical conditions of an unusual nature be encountered at the site which differ materially from those ordinarily encountered and generally recognized as inherent in work of the type performed hereunder, then in either of these events, the Agreement price shall be equitably adjusted and an equitable extension of time shall be granted by change order.

2.0 PRICE AND TERMS OF PAYMENT

2.1 The Agreement Price is as specified within the Purchaser’s purchase order. 2.2 Terms of payment shall be as specified in the Company's Proposal. 2.3 The invoiced amount shall be payable in full within 45 days of receipt of invoice in

accordance with the FL Statute 218.74 et seq., the Local Government Prompt Payment

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Act. Prorated billings shall be permitted for partial shipments and for the proportion of the labor completed.

2.4 If payments are not made by the due dates specified above, the Purchaser will be

assessed a finance charge of 1% per month in accordance with the FL Stat 218.74 et seq., the Local Government Payment Act or the maximum legal rate, whichever is less, on the overdue amount until paid.

3.0 PURCHASER'S RESPONSIBILITY

3.1 The Purchaser shall furnish the Company with all information, instructions, specifications, and drawings requisite for the execution of the Work.

3.2 Purchaser shall provide all rights of way for access to the work site and easements as

may be required for the efficient prosecution of the Work. 3.3 Purchaser shall secure and pay for any and all permits and licenses including, but not

limited to, general building permits, environmental permits, and permits and licenses needed for the Company to perform the Work, and any approvals of plans and specifications required for the Work. The Company agrees to comply with all reasonable permit and license conditions in the performance of the Work at the Project site.

3.4 Unless otherwise stated, the Purchaser shall, without cost to the Company, furnish at the

work site at locations established by Company and in accordance with the Project schedule, all boiler fuel, water, steam, oil, compressed air, and electricity (including connections, cables, outlets, etc.) as required for the efficient performance of the Work. Purchaser shall further provide all necessary heated and lighted buildings, storage facilities for the Company's drawings, records, and office equipment, dressing rooms for workmen, parking facilities readily accessible to the work site, and such sanitary facilities as may be required by law.

Purchaser shall also provide all flooring, walkways and stairways required in the

performance of the Work. 3.5 Unless otherwise stated, the Purchaser shall provide in place prior to the start of erection

all required foundations and anchor bolts, and shall be responsible for shimming and grouting as required.

3.6 The Purchaser shall provide suitable unloading and storage space, acceptable to the

Company, within 200' of boiler foundation, or as otherwise specified, with free, direct and unobstructed access to work site including right of way together with such openings in walls, pavements, floors, or roofs as may be required, unless otherwise stated herein. The Purchaser shall provide appropriate covered storage for equipment or materials requiring protection from the elements. Ground between storage space and erection site shall be level, well drained and unobstructed for mobile crane and truck operations. The Purchaser shall have the responsibility to maintain all access roads, and common roadways in a safe, passable condition, including the responsibility for dust suppression and snow removal as required.

3.7 The Purchaser shall have available at the work site at all times during the progress of the

Work a representative, who will be designated as such by the Purchaser to the Company,

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and who will not be replaced without notice to the Company. Such representative shall, unless written notice to the contrary is given to the Company, be deemed to have authority to act on behalf of the Purchaser.

3.8 Failure by the Purchaser to comply with any of the above requirements and conditions

shall entitle the Company to payment for the additional costs resulting therefrom, plus profit, indirect costs, taxes and insurances.

4.0 TRANSPORTATION

4.1 Unless otherwise specified in the Company's proposal, all shipments shall be made DDP Jobsite as per Incoterms 2019 The Agreement Price includes freight charges for shipping equipment to the Project site.

4.2 The type of transportation and the routing shall be decided by Company. Purchaser

shall cooperate with Company with respect to unloading, hauling and providing sufficient space for temporary storage of equipment on the Project site prior to installation.

5.0 TIME OF SHIPMENT/DELIVERY

All shipments or delivery dates either referenced by the Company or requested by the Purchaser shall be interpreted to mean "estimated" shipment or delivery dates only, and shall not be construed as falling within the meaning of "time is of the essence". In no event shall the Company be liable for any loss or damage resulting from delays in the performance of the Work, unless such delays are caused by the willful or negligent acts or omissions of the Company.

6.0 DELAYS AND FORCE MAJEURE

If the Company is delayed at any time in the progress of the Work, directly or indirectly, by any wrongful act or neglect of the Purchaser, or by any separate company or subcontractor employed by the Purchaser, then the responsibility for loss or damage to the Work resulting from any such delay shall be the Purchaser's, and the time for completion of the Work shall be extended for a reasonable time and the Agreement price shall be adjusted appropriately. In the event Company is delayed by a Force Majeure event (as defined below), the Company shall be entitled to an equitable extension of time and adjustment in the Agreement price. In the event Purchaser is delayed by a Force Majeure event (as defined below), the Purchaser shall be entitled to an equitable extension of time, or may terminate the Agreement in accordance with Section 27.3. A Force Majeure event is defined as any act, event or condition, or reasonably anticipated act, event or condition, affecting the Company, to the extent that it adversely affects the Company’s or the Purchaser’s ability to perform any obligation hereunder, if such act, event or condition is beyond the reasonable control of the Company or Purchaser, and is not also the result of willful or negligent action or inaction on the part of the Company or Purchaser. Such acts or events may include, but shall not be limited to, the following:

(a) an act of God (but not including reasonably anticipated adverse weather conditions for the

geographic area of the job site), landslide, lightning, hurricanes, tornadoes, earthquake, fire, explosion, flood or similar occurrence, acts of a public enemy, war, extortion, act of terrorism, sabotage, theft, blockade or insurrection, riot or civil disturbance;

(b) change in law that occurs after the Effective Date;

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(c) the failure of any appropriate federal, state, county, or local public agency or private utility having jurisdiction in the area in which the Facility is located, to provide and maintain utilities, services, water, sewer or power transmission lines to the Facility Site which are required for the construction, start-up, testing or operation of the Facility;

(d) any job action, labor disturbance, labor shortage, action or strike;

(e) the condemnation, taking, seizure, involuntary conversion or requisition of title to or use of the

Facility or the Facility Site, or any material portion thereof by the action of any federal, state or local government or governmental agency or authority; and

(f) the failure of any subcontractor or supplier to furnish labor, services, materials or equipment,

if such failure could not be reasonably prevented and the affected party is not reasonably able to obtain substitute labor, services, materials or equipment.

7.0 TAXES

7.l The price stated in Company’s Proposal is exclusive of any applicable sales, use, ownership, excise or other similar taxes. Purchaser shall provide Company with a valid certificate of exemption for sales and use tax. Company’s responsibility for any taxes related to the Work shall be limited to payment of income and payroll taxes imposed upon Company by any U.S. Government Authority.

7.2 Any tax now or hereafter imposed by any government agency based on the sale, use,

ownership, excise or possession of material, equipment or services used or consumed in the performance of the Work included in Company’s Proposal, or by the gross receipts from this transaction or any allocated portion thereof, or by the gross value of the material, equipment, or services covered herein, or any similar tax, shall be paid by the Purchaser. If the Company is required by law to collect and/or pay any such tax, the Purchaser shall reimburse the Company for the full amount immediately upon presentation of the Company's bill therefor. Rulings of authorities in charge of administration of such law that a tax is payable shall be final and binding upon the Purchaser.

8.0 CHANGES IN EQUIPMENT OR WORK

If any changes in the equipment or work are required in order to obtain approval of any insurance company or federal, state, or municipal authorities or regulating bodies, the Purchaser shall so inform the Company, and shall reimburse the Company for any changes actually made in accordance with Section 10.

9.0 WARRANTY

A. Material and Workmanship

9A.1 The Company warrants to the Purchaser that all equipment and Work furnished hereunder shall be new and free from defects in design, material, and workmanship. The warranty for all equipment and Work shall commence on delivery of the equipment or performance of the Work, as applicable, and continue until the earlier of twelve (12) months from Substantial Completion of the Work or eighteen (18) months from delivery of equipment to the Job Site (“Warranty Period”). “Substantial

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Completion” means that all pressure part welding is complete and the unit is capable of normal and continuous operation for use in accordance with its intended purpose.

9A.2 FURTHER, IT IS AGREED THAT THE COMPANY MAKES NO OTHER

REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER SUCH MIGHT ARISE UNDER LAW OR CUSTOM OF TRADE OR OTHERWISE. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES.

9A.3 In the event of a detrimental defect in materials or workmanship, the Company's sole

liability and Purchaser's exclusive remedy for breach of said warranty or for other claims arising out of the work performed or materials supplied for any cause whatsoever, including negligence or strict liability, irrespective of whether such defects or claims are discoverable or latent shall be, at the Company's option, to repair, on a straight time basis, or provide and install replacement parts. Purchaser may not back charge the Company for warranty claims without the Company's prior written consent. Equipment repaired, rebuilt or modified by Purchaser or other third parties without the Company's approval carries no warranty, either express or implied. It is understood and agreed that some parts and/or materials included herein, such as, but not limited to, refractories, seals, liners, wear plates, are by their nature and use expendable and replaceable under normal operating conditions and are subject to increased wear and tear and more frequent replacement under start-up conditions, and shall be guaranteed only as to their quality when new, but there is no warranty or guarantee of the life of said expendable or replaceable parts and/or materials, express or implied. This warranty does not cover the effects of normal wear or abuse of the equipment, abrasion, erosion or corrosion. The Company does not warrant that the operation of the equipment will comply with any laws or regulations governing environmental impact.

9A.4 The warranty period for any equipment or Work that has been repaired or replaced

by Company pursuant to Section 9A.3 shall be extended for an additional period of twelve (12) months from the date of such repair or replacement; provided, however, in no event shall Company’s warranty obligations extend longer than twelve (12) months from the expiration of the original Warranty Period.

B. Warranty Conditions

This warranty is expressly conditioned upon:

(a) Prompt notification to the Company in writing, within ten (10) days of actual discovery

(or when it should have been discovered), specifying particular detrimental defects;

(b) Proper use and operation of the equipment in the manner prescribed by the Company, with adequate logs and records to substantiate proper use and operation;

(c) No modification, alteration or substitution in the equipment unless prior written

authorization is received from the Company.

(d) Commencement of any cause of action arising hereunder within one year from the breach.

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(e) Purchaser allows the Company access as soon as reasonably possible to inspect the equipment after notification of defect(s).

(f) After discovery of defect(s), no further damage occurs from acts of Purchaser or third

parties. 10.0 CHANGE ORDERS

10.1 Without invalidating the Agreement, the Purchaser may order changes in the equipment or Work by altering, adding to or deducting from the equipment or Work, or to add correlated work not covered by the Agreement, or to make provision for changed conditions of this Agreement. All such changes in the equipment or Work shall be authorized by written change order and shall be approved by both parties. If any such revision necessitates a price or schedule adjustment, the Agreement will be amended accordingly. Company shall have no obligation to perform any extra work outside the scope of the Agreement until Purchaser has agreed to an appropriate adjustment in the price and/or schedule for the Work.

10.2 The value of any work covered by a change order shall be determined in one of the

following ways:

(a) where the work involved is covered by unit prices in the Company's Proposal, by application of unit prices to the quantities of the items involved;

(b) by mutually agreed lump sum; or

(c) on the basis of the cost of the work, which shall include labor at the

applicable rates specified in Exhibit A and actual costs of equipment and material plus fifteen percent (15%) markup for overhead and profit.

11.0 SERVICE REPRESENTATIVES

11.1 With respect to services of Service personnel, Company personnel are authorized only to advise and consult with the Purchaser or its representatives on a reasonable efforts basis. Company personnel are not authorized by the Company or licensed either to operate the equipment or to supervise others in its operation.

11.2 The Purchaser assumes complete responsibility for operation of equipment and shall

indemnify and save harmless the Company against any loss or expenses and against liability imposed upon the Company for any injury to persons or damage to property resulting from operation or use of such equipment by the Purchaser.

11.3 The Company shall not be liable for the acts or workmanship of labor not employed

by the Company. 12.0 RULES, REGULATIONS, ORDINANCES

The Company's responsibility is limited to those specific laws, regulations, etc. in force on the Effective Date of this Agreement. If revisions, etc. are required by the Purchaser or to cover compliance with new rules, regulations, etc. or changes or additions to those rules, the Company shall be reimbursed equitably for the added expense it incurs and the Agreement shall be adjusted appropriately.

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13.0 PATENTS, PROPRIETARY RIGHTS, AND CONFIDENTIAL INFORMATION

13.1 The Company shall at its expense defend any suit brought against Purchaser based on a claim that any equipment furnished by Company hereunder infringes any United States patent, except to the extent that the infringement or alleged infringement is the result of (i) compliance by Company with designs furnished and required to be used by Purchaser, or (ii) modifications to the equipment made by Purchaser or any person other than Company without Company’s written consent, and further provided that the Company is given prompt written notice of such claim and full opportunity and full cooperation of Purchaser to defend such claim and to minimize damages. In any such suit, the Company shall pay all costs and damages awarded against Purchaser. In case such equipment is held to infringe any such patent claim and the use thereof is enjoined, the Company shall, at its expense and at its option, either (a) obtain for Purchaser the right to continue using such equipment, (b) remove such equipment and refund the purchase price thereof, less 10% for each year or fraction of a year since the date of its delivery to Purchaser, or (c) replace such equipment with non-infringing equipment, or modify it so it becomes non-infringing.

13.2 To the extent that any equipment furnished by Company hereunder are made to

Purchaser's specifications, Purchaser shall at its expense, and to the fullest extent permitted by law, defend any suit brought against the Company based on a claim that such goods infringe any United States patent, provided that Purchaser is given prompt notice of such claim and full cooperation of the Company to defend and compromise such claim. In any such suit, Purchaser shall pay all costs and damages, including reasonable attorney’s fees, incurred by or awarded against the Company.

13.3 Company agrees to grant and hereby grants to Purchaser a perpetual, transferable,

irrevocable, non-exclusive, royalty-free license under all intellectual property rights and other proprietary information of Company related to the equipment to the extent reasonably necessary for the ownership, operation, maintenance, modification or repair of the equipment or any subsystem or component thereof. The Parties acknowledge and agree that such license is inseparable from the equipment, and such license shall transfer with the transfer of the equipment. No other license in such intellectual property rights and proprietary information is granted pursuant to this Agreement. All intellectual property and proprietary information contained in submittals, technical specifications, documents, engineering and other data furnished or to be furnished by Supplier and/or its Subcontractors in performing the obligations of this Agreement shall remain the property of Company.

13.4 Company represents that the intellectual property rights that Company transfers or

licenses to Purchaser pursuant to this Agreement include all of the intellectual property rights, including all rights to software, necessary to operate, maintain, modify and repair the equipment as contemplated by this Agreement and in accordance with applicable Laws and Prudent Industry Practices. Company shall retain all ownership rights, title and interest to software or source code contained in the equipment, together with any invention, improvement, discovery or technical development of any kind made by Company or an employee or agent of Company in connection with the supply of equipment and/or performance of the Services hereunder, except in the case of software to the extent that software or source code incorporates any proprietary or confidential information of Purchaser or its customers supplied by Purchaser under this Agreement.

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13.5 For the purposes of this Agreement, “Confidential Information” shall mean, with

respect to any Party, all drawings, reports, technical data, manuals, photographs, test results, inspection results and descriptions of the equipment, and the operational recommendations which are required to be developed pursuant to this Agreement. Purchaser and its designees shall have the right to reproduce any and all Confidential Information received from Company which is necessary to own, construct, operate or maintain the Project; provided, however, such reproduced Confidential Information shall be used solely for the performance of this Agreement and the ownership, construction, operation and maintenance of the Project. To the maximum extent permissible by law, and subject to Section 32 of this Agreement, each Party shall maintain in confidence all Confidential Information. Each Party shall restrict its use of Confidential Information solely to uses related to the Project or performance of this Agreement. Neither Party shall, without the prior written consent of the disclosing Party, publish or otherwise disclose Confidential Information to third parties; provided, however, that each Party may disclose Confidential Information (i) to its affiliates and consultants on a confidential basis to the extent necessary to comply with its obligations under this Agreement; (ii) to any Government Authority to the extent necessary to comply with any Laws or subpoena of such Governmental Authority, provided that it takes all reasonable efforts to obtain confidential treatment of the Confidential Information. Each Party shall cause any such affiliates, and consultants (each an “Authorized Third Party”) to whom it discloses Confidential Information to maintain such Confidential Information in strict confidence and to restrict its use of such Confidential Information solely to uses related to the Project. Each Party and Authorized Third Party that receives Confidential Information shall, to the extent permitted by Law, promptly notify the disclosing Party before disclosing Confidential Information to any Government Authority to give the disclosing Party the opportunity to seek a protective order. Nothing herein shall be construed to prohibit disclosure pursuant to Florida Statute Chapter 119, the Florida Public Records Act.

14.0 SERVICE AND OPERATING INSTRUCTIONS

Service guides and operating instructions, if required to be furnished, are to assist licensed operators in the use of the equipment furnished by the Company. The service guides and operating instructions are not intended to cover every possible contingency or variation in the equipment but rather to complement the judgment of the licensed operator whose duty it is to make the final decision in any particular circumstance. Accordingly, in offering this information, the Company does not assume responsibility for the safe and proper operating procedure of the equipment.

15.0 LIMITATION OF LIABILITY

15.1 THE COMPANY'S LIABILITY ON ALL CLAIMS OF ANY KIND (EXCLUDING CLAIMS FOR DEATH OR BODILY INJURY FOR WHICH COMPANY HAS AGREED TO INDEMNIFY PURCHASER PURSUANT TO THE INDEMNIFICATION AGREEMENT ATTACHED HERETO AS EXHIBIT B), WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ALL LOSSES OR DAMAGES ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT, OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM ANY EQUIPMENT OR SERVICES COVERED BY OR FURNISHED UNDER THIS

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AGREEMENT OR ANY EXTENSION OR EXPANSION THEREOF (INCLUDING REMEDIAL WARRANTY EFFORTS), SHALL IN NO CASE EXCEED THE AGREEMENT PRICE. EXCEPT AS TO TITLE ALL SUCH LIABILITY SHALL TERMINATE UPON THE EXPIRATION OF THE WARRANTY PERIOD.

15.2 IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY,

TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF USE OF THE EQUIPMENT OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF PURCHASED OR REPLACEMENT POWER, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, LOSS OF ANTICIPATED PROFIT OR REVENUE, DOWNTIME COSTS, COST OF REFUSE DISPOSAL, FINES OR PENALTIES IMPOSED BY GOVERNMENTAL AUTHORITIES OR CLAIMS OF CUSTOMERS OF PURCHASER FOR SUCH DAMAGES.

15.3 This Limitation of Liability shall prevail over any conflicting or inconsistent provision

contained in any item or document which comprises the Agreement. The remedies provided in this Agreement are exclusive.

16.0 USE OF PURCHASER'S EMPLOYEES

If the Company is to utilize laborers paid by the Purchaser to perform the Work covered by this Agreement, then the Purchaser, to the extent permitted by law, shall indemnify the Company from any liability for injury or death to such laborers or from liability for injury or death to any other persons or damage to any property, except such injury, death, or damage that is caused by the negligent acts or omissions of the Company. The Purchaser shall at its own expense defend any suit or action brought against the Company alleging any such loss, damage or injury, even if such suit or suits be groundless, false or fraudulent.

17.0 INSURANCE

17.1 The Company shall provide and maintain for its employees at its own expense until completion of the Work both Public Liability Insurance and Workmen's Compensation Insurance including Employer Liability Insurance in accordance with the laws of the state in which the Company may be required to pay compensation. Specific insurance requirements are included in the addendum entitled “Insurance Requirements,” attached hereto as Exhibit C.

18.0 OVERTIME

18.1 The Purchaser shall authorize the Company to work overtime if the Project is delayed due to delays not caused by Company or a Force Majeure Event, and the Purchaser opts to accelerate performance of the Work in lieu of making a schedule adjustment. Any such extra work shall be authorized via Change Order in accordance with Section 10 and the applicable overtime rates shall be as specified in Exhibit A.

19.0 RESPONSIBILITY OF PURCHASER FOR OPERATION OF EQUIPMENT

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19.1 If Purchaser shall commence operation of any part of its equipment prior to the completion of Company's Work, Purchaser agrees not to hinder the Company in the performance of its Work.

19.2 To the extent permissible by law and subject to the monetary limitations set forth in

FL Stat 768.28, Purchaser shall indemnify the Company against any loss or expense, and against any liability for any injury to persons or damage to property resulting from Purchaser’s willful misconduct or negligent operation.

20.0 SUBCONTRACTS

The Company reserves the right to subcontract all or any part of the Work to a subcontractor, or subcontractors of its choice upon prior written notice and approval of Purchaser, which shall not be unreasonably withheld.

21.0 EXISTING EQUIPMENT

In the event the Company is repairing or modifying existing equipment beyond its warranty period, and the Company is required to hydrostatically test, dry out, boil out, chemically clean, steam line blow, etc., the Company will not be responsible for failure of equipment to withstand the pressure and other effects of these procedures; and the responsibility and cost of piping water at the required temperature and proper chemical makeup to and from the boiler, or otherwise disposing of used water and chemicals, as well as freeze protection before and after such procedures will be the Purchaser's.

22.0 GOVERNING LAW

Except with regard to arbitration provisions referenced herein, the validity, construction and performance of this agreement shall be governed by the law of the State of Florida. Jurisdiction and venue shall be in the courts of Polk County, Florida or the U.S. District Court in and for the Middle District of Florida.

23.0 DISPUTES

23.1 Upon request by either Party, the Parties shall first attempt in good faith to negotiate a resolution of all disputes, either by phone or at an in-person meeting at any mutually agreed location, within thirty (30) days following receipt of the such a request or within a time period mutually agreeable to both parties.

23.2 If the dispute remains unresolved, the parties shall attempt to resolve the dispute by

proceeding to non-binding mediation. The mediation shall be conducted in accordance with the rules of the American Arbitration Association and shall be held in Polk County, Florida unless the parties mutually agree to a different location. The parties shall divide the cost of the mediator equally. Mediation shall occur within sixty (60) days of the end of the negotiation period referenced in Section 23.1.

23.3 If the dispute remains unresolved after negotiation and mediation, either Party may file a

lawsuit in the courts of Polk County, Florida or the U.S District Court in and for the Middle District of Florida.

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24.0 NOTIFICATION

All notices in connection with this Agreement shall be in writing and shall be deemed to have been duly given on the date of receipt, and shall be either delivered personally or by email (subject to the sender sending a written copy of such email within two (2) Days of the email’s original transmission, using one of the other delivery methods specified in this Section 24 or otherwise receiving written confirmation by the recipient of receipt of the email) to the Party to whom notice is to be given, or mailed to the Party to whom notice is to be given, by first class registered or certified mail, return receipt requested, postage prepaid, or sent by a nationally recognized overnight courier service, and addressed to the addressee at the address stated opposite its name below, or at the most recent address specified by written notice given to the other Party in the manner provided in this Section 24.).

PURCHASER: City of Lakeland, Lakeland Electric Attention: David Holdener 3030 East Lake Parker Dr Lakeland, FL 33805

Phone: 863-834-6649 Email: [email protected]

COMPANY: VOGT POWER INTERNATIONAL INC. 13551 Triton Park Boulevard, Suite 2000 Louisville, KY 40223 Attention: Eric Troutner Phone: (502) 899-4647 Email: [email protected]

25.0 ASSIGNMENT

Neither Party shall assign its rights or delegate its duties under this Agreement, in whole or in part, without the prior written consent of the other Party.

26.0 SEVERABILITY

The invalidity of any provision or obligation hereunder or the contravention thereby of any law, rule or regulation shall not relieve the Purchaser or the Company from its obligation under, nor deprive the Purchaser or the Company of the advantages of any other provision of this Agreement.

27.0 TERMINATION

27.1 Termination for Cause. (a) Purchaser may terminate this Agreement by written notice to Company if any

proceeding is instituted against Company seeking to adjudicate Company as bankrupt or insolvent, or if Company makes a general assignment for the benefit of its creditors, or if a receiver is appointed on account of the insolvency of Company, or if Company files a petition seeking to take advantage of any other Laws relating to bankruptcy, insolvency, reorganization, winding up or composition or readjustment of

mailto:[email protected]

mailto:[email protected]

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debts and, in the case of any such proceeding instituted against Company (but not by Company or its Affiliates), such proceeding is not dismissed within ninety (90) Days after such filing.

(b) Company may terminate this Agreement by written notice to Purchaser if any

proceeding is instituted against Purchaser seeking to adjudicate Purchaser as bankrupt or insolvent, or if Purchaser makes a general assignment for the benefit of its creditors, or if a receiver is appointed on account of the insolvency of Purchaser, or if Purchaser files a petition seeking to take advantage of any other Laws relating to bankruptcy, insolvency, reorganization, winding up or composition or readjustment of debts and, in the case of any such proceeding instituted against Purchaser (but not by Purchaser or its Affiliates) such proceeding is not dismissed within ninety (90) Days after such filing.

(c) If either Party is in material default of any provision of this Agreement, and fails to

fully cure the same within thirty (30) Days after receipt of written notice thereof from the other Party, or such longer period as may be reasonably required to cure the same (but in no event more than sixty (60) Days from receipt of such written notice provided that the defaulting Party has begun such cure within ten (10) Days and diligently pursues such cure to completion), the other Party may terminate this Agreement by written notice to the defaulting Party; provided, that Company shall not be deemed to be in material default hereunder as a consequence of any equipment or services failing to conform to the Warranty set forth in Section 9.0 so long as Company complies with its obligation to remedy the nonconformance in accordance with Sections 9A.3. In the event of a material default of any payment obligations by Purchaser, Company may suspend performance of its obligations under this Agreement in lieu of termination.

27.2 Termination for Cause Remedies (a) If Purchaser elects to terminate this Agreement pursuant to Section 27.1,

Purchaser shall have all rights and remedies available to it under this Agreement, which shall be its sole and exclusive remedies in lieu of and to the exclusion of any remedies at law and in equity.

(b) Upon any termination of the Agreement by Company pursuant to Section 27.1,

Purchaser shall be obligated to make the payments required under Section 27.4. 27.3 Termination for Convenience.

(a) Purchaser, in its sole discretion, may terminate this Agreement at any time without cause, in whole or in part, without liability (other than payment in accordance with Section 27.4), upon ten (10) Days’ prior written notice to Company.

27.4 Payment in Certain Events of Termination.

In the event of termination of this Agreement under Sections 27.1(b), 27.3, or for any reason other than as a result of an event of default by Company under Section

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27.1(c), within forty-five (45) Days of receipt of an Invoice from Company, Purchaser shall pay to Company (a) all amounts incurred by Company with respect to the equipment, services, and Work as of the date of termination and not yet paid, including the costs and expenses incurred by Company to engineer, design, fabricate, manufacture, and deliver the equipment; (b) cancellation costs and expenses incurred by Company to terminate subcontracts with its subcontractors; and (c) reasonable demobilization costs and expenses; plus (d) a markup of fifteen percent (15%) on the aggregate amount of such costs and expenses determined under (a), (b), and (c); provided, however, that the total amount paid by Purchaser shall not exceed the Agreement Price, as subsequently amended by Change Order. Company shall furnish to Purchaser all equipment and services paid for by Purchaser pursuant to this Section 27.4.

28.0 ASBESTOS and HAZARDOUS MATERIALS

The Company's scope of work shall not include the identification, detection, abatement, encapsulating or removal of asbestos, or products or materials containing asbestos or other hazardous substances. In the event the Company encounters any such products or materials in the course of performing its work, the Company shall have the right to discontinue its work and remove its employees from the Project until such products or materials and any hazards connected therewith, are abated, encapsulated or removed, or it is determined that no hazard exists (as the case may require), and the Company shall receive an extension of time to complete its work hereunder and compensation for delays encountered as a result of such situation or correction of same.

29.0 HAZARD COMMUNICATION (FIELD LABOR & SERVICE)

In accordance with 29 CFR 1919.1200(e)(iii) of the Hazard Communication OSHA Rule, Purchaser will supply Company’s Project site representative with a written letter outlining:

• Hazardous chemicals Company employees may be exposed to while working in

Purchaser's workplace. • Suggestions for appropriate protective measures.

30.0 HEADINGS

The descriptive phrase in the head of the various paragraphs are inserted only as a matter of convenience and for reference and in no way are intended to define, limit, or describe the scope or intent of the particular paragraph to which they refer.

31.0 ENTIRE AGREEMENT

This Agreement, including all Exhibits attached hereto, constitutes the complete agreement between the Parties as of the date of the Agreement. There are no understandings between the parties hereto as to the subject matter of this agreement other than as set forth herein. All previous communications concerning the subject matter of this Agreement, either verbal or written, are hereby abrogated and withdrawn and this Agreement constitutes the whole agreement between the parties. Any provisions of a purchase order or specification which may be issued hereafter shall not be binding on the parties unless duly approved in writing by an authorized representative of each party. This Agreement may not be changed or modified except by a written amendment executed by a duly authorized representative of each party.

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32.0 Public Records Company shall be required to comply with Florida Statute Chapter 119, the Florida Public

Records Act and the provisions set forth in Exhibit D attached hereto. 33.0 COUNTERPARTS

This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures were upon the same instrument. The undersigned hereby certify that he/she is an authorized agent of the Purchaser or Company, as applicable, and has the authority to execute this Agreement.

[Signatures on next page.]

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IN WITNESS THEREOF, the parties hereto have executed this Agreement as of the Effective Date.

City of Lakeland By: ______________________________ Date: ____________________________ Name: _H. William Mutz ______________ Title: _Mayor______________________

Vogt Power International Inc. By: _____________________________ Date: ____________________________ Name: ___________________________ Title: ____________________________

Attest: By: _________________________________ Kelly S. Koos, City Clerk Approved as to form and correctness: By: _________________________________ Timothy J. McCausland, City Attorney

Revised 2/13/2019

INSURANCE REQUIREMENTS HRSG Low Pressure Bundle Replacements Unit #5 @ MMP

STATEMENT OF PURPOSE

The City of Lakeland (the “City”) from time to time enters into agreements, leases and other contracts with Other Parties (as hereinafter defined).

Such Agreements shall contain at a minimum risk management/insurance terms to protect the City’s interests and to minimize its potential liabilities. Accordingly, the following minimum requirements shall apply:

CITY DEFINED

The term City (wherever it may appear) is defined to mean the City of Lakeland itself, its Commission, employees, volunteers, representatives and agents.

OTHER PARTY DEFINED

The term Other Party (wherever it may appear) is defined to mean the other person or entity which is the counter-party to the Agreement with the City and any of such Other Party’s subsidiaries, affiliates, officers, employees, volunteers, representatives, agents, contractors and subcontractors.

LOSS CONTROL/SAFETY

Precaution shall be exercised at all times by the Other Party for the protection of all persons, including employees, and property. The Other Party shall comply with all laws, rules, regulations or ordinances related to safety and health, and shall make special effort to anticipate and detect hazardous conditions and shall take such precautionary and prompt action where loss control/safety measures should reasonably be expected.

The City may order work to be stopped at any time, without liability, if conditions exist that present immediate danger to persons or property. The Other Party acknowledges that such stoppage, or failure to stop, will not shift responsibility for any damages from the Other Party to the City.

INSURANCE - BASIC COVERAGES REQUIRED

The Other Party shall procure and maintain the following described insurance, except for coverage specifically waived by the City of Lakeland, on policies and with insurers acceptable to the City, and insurers with AM Best ratings of no less than A.

These insurance requirements shall in no way limit the liability of the Other Party. The City does not represent these minimum insurance requirements to be sufficient or adequate to protect the Other Party’s interests or liabilities, but are merely minimums.

"Except for workers’ compensation and professional liability, the Other Party's insurance policies shall by blanket additional insured endorsement include the City of Lakeland as additional insured. It is agreed that the Other Party's insurance shall be deemed primary and non-contributory with respect to any insurance or self-insurance carried by The City of Lakeland for liability arising out of the Other Party’s scope of work and to the extent of the Other Party’s negligence ."

Revised 2/13/2019

INSURANCE – BASIC COVERAGES REQUIRED (cont’d) Except for worker’s compensation, the Other Party waives its right of recovery against the City, to the extent permitted by its insurance policies.

The Other Party is responsible for the amount of any deductible or self-insured retention.

Insurance required of the Other Party or any other insurance of the Other Party shall be considered primary, and insurance of the City shall be considered excess, as may be applicable to claims which arise out of the Hold Harmless, Payment on Behalf of the City of Lakeland, Insurance, Certificates of Insurance and any Additional Insurance provisions of this agreement, contract, or lease.

Commercial General Liability: This insurance shall be an “occurrence” type policy written in

comprehensive form and shall protect the Other Party and the additional insured against all claims arising from bodily injury, sickness, disease, or death of any person other than the Other Party’s employees or damage to property of the City or others arising out of any act or omission of the Other Party or its agents, employees, or Subcontractors and to be inclusive of property damage resulting from explosion, collapse or underground (xcu) exposures. This policy shall also include protection against claims insured by usual personal injury liability coverage, and to insure the contractual liability assumed by the Other Party under the article entitled INDEMNIFICATION, and “Products and Completed Operations” coverage.

The Other Party is required to continue to purchase products and completed operations coverage for a minimum of three years beyond the City’s acceptance of renovation or construction properties.

The liability limits shall not be less than:

Bodily Injury and $1,000,000 Property Damage Single limit each occurrence

Business Automobile Liability: Business Auto Liability coverage is to include bodily injury and property damage arising out of ownership, maintenance or use of any auto, including owned, non-owned and hired automobiles and employee non-ownership use.

The liability limits shall not be less than:

Bodily Injury and $1,000,000 Property Damage Single limit each accident

Workers’ Compensation : Workers’ Compensation coverage to apply for all Other Party

employees for statutory limits and shall include employer’s liability with a limit of $100,000 each accident, $500,000 disease policy limits, $100,000 disease limit each employee. (“All States” endorsement is required where applicable). If exempt from Worker’s Compensation coverage, as defined in Florida Statue 440, the Other Party will provide a copy of State Workers’ Compensation exemption.

All subcontractors shall be required to maintain Worker’s Compensation.

The Other Party shall also purchase any other coverage required by law for the benefit of employees.

Revised 2/13/2019

Excess Liability: This insurance shall protect the Other Party and the additional insured against all claims in excess of the limits provided under the employer’s liability, commercial automobile liability, and commercial general liability policies. The policy shall be an “occurrence” type policy, and shall follow the form of the General and Automobile Liability.

The liability limits shall not be less than: $3,000,000

ADDITIONAL INSURANCE

Additional Insurance: The City requires the following types of insurance.

Crane or Riggers Liability: This insurance covers legal liability protection for the individual or business entity when acting as a rigger for the property of others in their care, custody and control.

EVIDENCE/CERTIFICATES OF INSURANCE

Required insurance shall be documented in Certificates of Insurance which provide that the City shall be notified at least 30 days in advance of cancellation, nonrenewable, or adverse change.

New Certificates of Insurance are to be provided to the City within 15 days of coverage renewals.

Copies of the Other Party’s insurance policies, forms and endorsements are, upon prior written notice, available for review during regular business hours at the offices of Babcock Power Inc., 222 Rosewood Drive, 3rd Floor, Danvers, MA 01923 Attention: Laura Gouzie 978-646-3320; [email protected].

Receipt of certificates or other documentation of insurance or policies or copies of policies by the City, or by any of its representatives, which indicate less coverage than required does not constitute a waiver of the Other Party’s obligation to fulfill the insurance requirements herein.

Exhibit D

IF THE COMPANY HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER

119, FLORIDA STATUTES, TO THE COMPANY’S DUTY TO PROVIDE PUBLIC

RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC

RECORDS: KEVIN COOK - DIRECTOR OF COMMUNICATIONS AT: PHONE: 863-834-

6264, E-MAIL: [email protected], ADDRESS: ATTN:

COMMUNICATIONS DEPARTMENT, 228 S. MASSACHUSETTS AVE., LAKELAND,

FLORIDA 33801.

In accordance with Florida Statute §119.0701, the COMPANY shall keep and

maintain public records required by the Purchaser in performance of services

pursuant to the contract. Upon request from the Purchaser’s custodian of public

records, COMPANY shall provide the Purchaser with a copy of the requested

records or allow the records to be inspected or copied within a reasonable time at

a cost that does not exceed the cost provided pursuant to Florida Statute Chapter

119 or as otherwise provided by law. COMPANY shall ensure that public records

that are exempt or confidential and exempt from public records disclosure

requirements are not disclosed except as authorized by law for the duration of the

contract term and following completion of the contract if the COMPANY does not

transfer the records to the Purchaser. COMPANY shall, upon completion of the

contract, transfer, at no cost, to the Purchaser all public records in possession of

the COMPANY or keep and maintain public records required by the Purchaser to

perform services pursuant to the contract. If the COMPANY transfers all public

records to the Purchaser upon completion of the contract, the COMPANY shall

destroy any duplicate public records that are exempt or confidential and exempt

from public records disclosure requirements. If the COMPANY keeps and maintains

public records upon completion of the contract, the COMPANY shall meet all

applicable requirements for retaining public records. All records stored

electronically must be provided to the Purchaser, upon request from the

Purchaser’s custodian of public records, in a format that is compatible with the

information technology systems of the Purchaser.

MEMORANDUM TO: MAYOR AND CITY COMMISSION Commission/Agendas/2019/08-05-19/VIII-C-1...Aug 05, 2019...

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